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id_802	0	Date of decision: 15th September 2023. CS (COMM) 303/2022 & I.A. 17896/2023. Through: Mr. Mukul Kochhar and Mr. Raunaq Kamath, Advocates. Versus Through: Ms. Hetu Arora Sethi, Assistant Superintendent of Police, GNCTD for Delhi Police Cyber Cell. Ms. Shweta Sahu and Mr. Brijesh Ujjainwal, Advocates for Defendant Prathiba M. Singh. (Oral)., This hearing has been conducted in hybrid mode. The present suit has been filed by the Plaintiff, Burger King Corporation, seeking protection of its marks BURGER KING, the Crescent Logo Design and the Hamburger Refresh Design Logo. The claim of the Plaintiff is that some of the Defendants are offering fake franchises under the Burger King Trade Mark to unsuspecting persons, duping them of large sums of money. The said logos are set out below: Crescent Logo Design, Hamburger Refresh Design Logo., By order dated 17th August 2023, the Delhi High Court directed the Cyber Crime Division, Mumbai Police to conduct investigation in accordance with law and to take all necessary action in respect of the fraudulent activities being undertaken by various nefarious websites., The present two applications have been filed by the Plaintiff seeking further orders in respect of fake, illegal and fraudulent websites using the name Burger King in an unauthorised manner. After the filing of the applications and during the court proceedings, another domain name was brought to the notice of the Delhi High Court. The illegal domain names are: i) ind.co.in together with the attached email address and bank account; ii) anchisee.com., The Delhi High Court has heard lead counsel for the Plaintiff. Clearly there is a need to take stringent action as the application reveals misuse of the domain names. Considering that the Delhi Police would need to investigate this matter, Ms. Hetu Arora Sethi, lead Assistant Superintendent of Police, has been requested to accept notice., The interim injunctions have already been passed by the Delhi High Court recognising the Plaintiff’s right in the mark BURGER KING vide order dated 10th May 2022 and subsequent orders extending the same to other domain names. The domain names which have been already injuncted/blocked are set out in paragraph 10 of the application. The Plaintiff has, however, come across further defrauding by unknown persons using the above two domain names. Specifically, it has been revealed that some unsuspecting consumer who wanted to obtain a Burger King franchise paid a sum of Rs. 2,65,000/- to the bank account of the domain name at serial no. (i) i.e. ind.co.in. The bank account details are as follows: Name – Burger King India Limited; Account Number – 60449688238; IFSC Code – MAHB0000311; Branch – West Andheri; Bank – Bank of Maharashtra., In addition, the email being used for the fraudulent activity is info@burgerkingind.co.in. The Domain Name Registrar of this website is GoDaddy LLC and the Domain Name Registrar (DNR) of the website is FastDomain Inc., All these domain names and websites, as well as the bank accounts operated through these domain names, are being used to fraudulently collect money under the name of the Plaintiff by misusing the Plaintiff’s brand and marks. It is therefore appropriate to extend the injunction order dated 10th May 2022 to cover these domain names. There is an urgent need to stop any further amounts being received in these fraudulent bank accounts., Accordingly, the following directions are issued: (i) An interim injunction is granted restraining ind.co.in and any use of the mark/name BURGER KING or the logos extracted above for any purpose, including collecting money under the garb of issuing franchises or dealerships; (ii) GoDaddy LLC shall, with immediate effect, suspend/block the domain name www.burgerkingind.co.in ensuring that the website is no longer accessible to any consumers; (iii) If the email address info@burgerkingind.co.in is opened by or through GoDaddy LLC, the said email shall also be blocked; (iv) FastDomain Inc shall, with immediate effect, suspend/block the domain name ensuring that the website is no longer accessible to any consumers, and any email addresses opened through FastDomain Inc shall also be blocked; (v) NIXI is directed not to permit any domain name/website to be opened under the .co.in or .in extensions consisting of the mark ‘Burgerking’ where the words BURGER and KING appear together; (vi) The bank account number 60449688238 opened through the West Andheri branch of Bank of Maharashtra shall be frozen with immediate effect and the complete statement of the said bank account shall be placed on record by the Bank of Maharashtra. The concerned headquarters of the Bank of Maharashtra shall also investigate how a bank account in the name of ‘Burger King India Pvt Ltd’ was permitted to be opened without verifying the credentials; (vii) The Cyber Cell/IFSO Delhi Police is allowed to investigate the following mobile numbers and take action in accordance with law: 1) 9038343545, Bharti Airtel Limited; 2) 9875572536, Reliance Infocomm Limited; 3) 9385983270, Bharat Sanchar Nigam Limited; (viii) The Department of Telecommunications and the Ministry of Electronics and Information Technology shall issue blocking orders against the above domain names/websites with immediate effect, to be given effect to by all ISPs; (ix) Bank of Maharashtra is directed to disclose the identity of the account holder, KYC details and any other documents it may have; (x) A Mareva injunction is granted for freezing the said bank accounts; (xi) The Delhi Police shall obtain all call detail records from the respective telecom service providers, namely Bharti Airtel, Reliance Infocomm Ltd., and Bharat Sanchar Nigam Limited and investigate the matter. All action in accordance with law shall be taken against persons involved in this illegal activity. If a FIR needs to be registered, the same may also be done. Delhi Police to place a status report in respect of the same by the next date of hearing., For the reasons contained in the application, the application under Order I Rule 10 of the Code of Civil Procedure is allowed. The amended memo of parties is taken on record. Let the same be placed in the main pleadings so that it is accessible to the Delhi High Court. I.A. 17896/2023 and I.A. 17923/2023 are disposed of in the above terms., Compliance of Order XXXIX Rule 3 shall be made within one week by email., List on 27th September 2023, the date already fixed., Copies of the present order be communicated by the Registry to the following entities/persons: 1) Bank of Maharashtra – Mr. V.K. Gupta, Standing Counsel (Email: vinodgupta501@hotmail.com, Mobile No.: 9582206578); 2) Bharti Airtel (Email: compliance.officer@bharti.in); 3) Reliance Infocom (Email: grievance.officer@jio.com); 4) BSNL – Mr. Sameer Agarwal, Advocate (Email: sameer.lawyer@gmail.com, Mobile No.: 9873405405, 9810047285); 5) Cyberlaw Legal – Email: cyberlaw-legal@meity.gov.in and adg2ds-dot@gov.in; 6) Ministry of Electronics and Information Technology; 7) GoDaddy LLC – Ms. Shweta Sahu, Advocate (Email: godaddylitigation.nda@nishithdesai.com, Mobile No.: 9004057125); 8) FastDomain Inc. (Email: legal@fastdomain.com); 9) National Internet Registry.
id_803	0	Criminal Original Petition Numbers 845, 850 & 852 of 2021 Reserved on 19.01.2023 Pronounced on 08.03.2023 Criminal Original Petition Numbers 845, 850 & 852 of 2021 and Criminal Miscellaneous Petition Numbers 517, 519, 521, 522, 524, 525 of 2021., S. Velraj, petitioner / third accused in Criminal Original Petition No. 845 of 2021; K. Murali, petitioner / first accused in Criminal Original Petition No. 850 of 2021; Subramania Kuttan, petitioner / second accused in Criminal Original Petition No. 852 of 2021; State represented by the Assistant Commissioner of Police, Meenambakkam Range, Chennai 600 027 (Reference: Crime No. 38/2019 dated 30.03.2019); Thiru A. G. Vimal Rajasekaran, respondent in all Criminal Original Petitions., Prayer in all Criminal Original Petitions: These Criminal Original Petitions have been filed under Section 482 of the Code of Criminal Procedure to call for the records in Special Court No. 74 of 2020 on the file of the Principal Sessions Judge, Kancheepuram District Court, Chengalpattu and to quash the proceedings in Special Court No. 74 of 2020 on the file of the Principal Sessions Judge, Kancheepuram District Court, Chengalpattu as against the petitioners herein for offences under Section 3(1)(q) and Section 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 506(i) of the Indian Penal Code., For petitioners: Mr. A. Ramesh, Senior Counsel for Mr. B. A. Sujay Prasanna. For respondents: Mr. A. Gopinath, Government Advocate (Criminal Side); for Respondent 1: Ms. V. Gandhimathi; for Respondent 2: Ms. V. Gandhimathi., Heard the learned counsel for the petitioners and the learned Government Advocate (Criminal Side) appearing for the first respondent and the learned counsel for the second respondent in all Criminal Original Petitions., The petitioners are the accused 1 to 3 and have filed the individual petitions seeking to quash the proceedings initiated against them. The petitioner in Criminal Original Petition No. 850 of 2021, first accused K. Murali, is the Assistant General Manager, Flight Dispatch, Operations Department, Air India Ltd. The petitioner in Criminal Original Petition No. 852 of 2021, second accused, is the Assistant General Manager, Administration, Operations Department, Air India Ltd. The petitioner in Criminal Original Petition No. 845 of 2021, third accused S. Velraj, is the General Manager (Operations) Coordinating, Operations Department, Air India Ltd., The second respondent / de facto complainant was working as a Senior Manager, Flight Dispatch (Operations), Air India Ltd., Chennai. He belongs to Scheduled Caste community and was a subordinate officer functioning under the control and directions of the petitioners 1 to 3. The petitioners were aware of the second respondent's caste. The third accused harassed the second respondent by providing false and contradictory information, causing disciplinary action against the second respondent with the intention to cause unwarranted annoyance and agony, punishable under Section 3(1)(q) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, as amended by an Act of 2016., On various occasions between 11.04.2018 and 05.02.2019 the accused 1 to 3, taking advantage of their position as superior officers and knowing the community of the second respondent, intentionally insulted and intimidated him, humiliating him in public by committing caste abuse, resulting in shivering and palpitation, thereby committing an offence punishable under Section 3(1)(r) of the Act. On the morning of 12.02.2019, when the second respondent was proceeding to the toilet situated at the terminal side of the office, he was intimidated by a threat that \you are gone\, and Accused 2 committed an offence under Section 506(i) of the Indian Penal Code., The learned counsel for the petitioners submitted that this is a typical example of how a disgruntled person can take vengeance against his superior officers by misusing the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; despite the SC/ST Liaison Officer of the company having given a clean chit for the superior officers, the charge sheet was filed ignoring the same; the allegations are vexatious, inherently improbable, absurd and do not constitute any offence; even the statements of the witnesses do not reveal any commission of the offence for which the petitioners have been charged. The learned counsel raised the following grounds: (i) The charge sheet was filed in violation of the mandates prescribed under Section 197 of the Code of Criminal Procedure. The petitioners, being public servants within the definition of Section 21 of the Indian Penal Code, should not have been charge‑sheeted without prior sanction under Section 197 of the Code of Criminal Procedure. (ii) The allegations are vague, improbable, absurd and do not constitute any offence. (iii) The occurrence is said to have been between 11.04.2018 and 05.02.2019, but the charge sheet was filed with an inordinate delay; the unexplained delay itself is a ground to quash the proceedings., The incidents alleged against the petitioners relate to the dates 05.02.2019, 12.02.2019 and 30.01.2019; though distinct, they have been combined in one complaint and consequently in one charge sheet without any connected penal provisions such as Section 34, 109 or 120(b) of the Indian Penal Code. The second respondent did not find favour with the superior officers in the departmental proceedings taken against him; the SC/ST Act has been misused to wreak vengeance; the report does not disclose material facts; no information regarding the findings of the domestic enquiry proceedings pertaining to the allegations against the de facto complainant has been submitted to the investigating agency., The learned Government Advocate submitted that the petitioners, as the superior officers under whose control the second respondent was working, subjected him to harassment and humiliation on several occasions, including those mentioned in the complaint; the second respondent gave a clear statement of how he was harassed and intimidated; the second respondent had videographed the humiliation by the first accused and an earlier complaint was registered in Crime No. 360 of 2017; after investigation, a charge sheet was filed against the first accused in Special Court No. 133 of 2018; the petitioners were aware that the second respondent belongs to Scheduled Caste; with a view to cause harassment they committed the offences for which they have been charge‑sheeted; the second respondent is the victim of offences under the SC/ST Act; the materials on record are sufficient to make out the charges and therefore the petitioners should be subjected to trial., The learned counsel for the second respondent adopted the same arguments as the Government Advocate and reasserted that the petitioners should be subjected to trial. It is further submitted that the prosecution cannot be quashed for want of sanction and the sanction can be obtained at any time during the pendency of the proceedings; though there is a delay in filing the complaint, that alone cannot be a reason to quash the proceedings initiated against the petitioners., The second respondent and the petitioners are officers of Air India Ltd. The petitioners/accused 1 to 3 are senior in rank to the second respondent. It is alleged by the second respondent that he was humiliated on many occasions, specifically during those mentioned, and such harassment was intentionally caused by the accused who knew that the second respondent belonged to the Scheduled Caste community., The petitioners had filed original petitions in Criminal Original Petition Numbers 10117 and 10062 of 2019 to quash the FIR itself. Since the charge sheet was filed in due course, those petitions were disposed with liberty to file a fresh petition challenging the charge sheet. The de facto complainant had given another complaint alleging harassment by the first accused, registered in FIR No. 360 of 2017. After investigation, a charge sheet was filed and the case was taken on file in Special Court No. 133 of 2018. The first accused challenged that charge sheet by filing a petition in Criminal Original Petition No. 14230 of 2019, which was allowed on 03.12.2021 and the proceedings in Special Court No. 133 of 2018 were quashed., It is submitted by the learned counsel for the petitioners that the second respondent abused the process of law by giving false complaints taking advantage of his Scheduled Caste status. He further submitted that the Special Act to protect Scheduled Castes and Scheduled Tribes has been misused to wreak vengeance against the petitioners. The order of this Court dated 03.12.2021 in Criminal Original Petition No. 14230 of 2019 observed that the second respondent habitually sent numerous petitions to superior officers and outside authorities alleging caste based discrimination, having sent nearly 120 letters/e‑mails. To ensure equal treatment and avoid caste based discrimination, Air India appointed an SC/ST Liaison Officer who is bound to make enquiries into such allegations and give reports., The Liaison Officer made enquiries and found that the allegations made by the second respondent are false. However, the petitioners have been charged for offences under Section 3(1)(q) and Section 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 506(i) of the Indian Penal Code. Although the FIR was registered for offences under Sections 8(b), 4(1), 3(1)(m), 3(1)(p), 3(1)(q) of the SC/ST Act, Rule 10 and Rule 11 of the Aircraft Act of India and Sections 504, 506, 469, 281 and 283 of the Indian Penal Code, the charge sheet was filed only for offences under Section 3(1)(q), Section 3(1)(r) of the SC/ST Act and Section 506(i) of the Indian Penal Code. Therefore, the discussion in these Criminal Original Petitions can be only on the offences for which the charge sheet has been laid., Section 3(1)(r) deals with the offence where a person intentionally insults or intimidates a member of the Scheduled Castes or Scheduled Tribes with an intention to humiliate them in any place within public view. Section 3(1)(q) deals with giving false or frivolous information to any public servant, thereby causing that public servant to use his power to injure or cause annoyance to a member of the Scheduled Castes or Scheduled Tribes. The charge under Section 3(1)(q) was based on the allegation that the first accused, as superior officer, gave false information about some lapses on the part of the second respondent, resulting in disciplinary proceedings against him., The records show that disciplinary proceedings were initiated against the second respondent for certain charges, and at the end of the proceedings the second respondent was found guilty and imposed severe punishment of removal from service. The order of removal was passed by the officiating General Manager, Operations, on 28.09.2021. After the removal order, the second respondent challenged it by filing a writ petition in Writ Petition No. 25032 of 2021, which is pending. After a detailed enquiry by the Department, the second respondent was found guilty of the charges, and therefore it cannot be said that false information was given against him to a public authority., The public authority that took the disciplinary action is the department authority. The second respondent and all other employees of Air India come under the disciplinary rules, and actions taken by any superior authority cannot be said to fall under Section 3(1)(q) of the SC/ST Act. Failure of the superior officers to notice, report, or cause disciplinary action would amount to lapse of duty, not to an offence under Section 3(1)(q). Hence the transaction that occurred in the company in accordance with the company rules cannot be called information given with intent to cause injury or annoyance to the second respondent. Even if the second respondent obtains a favorable result in his writ petition, the proceedings taken by the authorities remain departmental and do not fall within the purview of Section 3(1)(q) of the SC/ST Act., The next charge against the petitioners is for intentionally insulting and intimidating the second respondent in a public place to humiliate him because he belongs to the Scheduled Caste community. To make out an offence under the above section, three essential elements must be present: (i) the victim is a member of the Scheduled Caste or Scheduled Tribe; (ii) the offender insulted or intimidated the victim; (iii) the insult or intimidation was made with the intention to humiliate the victim because of his Scheduled Caste or Scheduled Tribe status., The second respondent alleged that the third accused called him from mobile number 044-22560088 at around 20:35 hours on 30.01.2019 and threatened him. The motive attributed by the third accused for the threat was that the second respondent had sent an e‑mail directly to the Chairman and Managing Director about a certain incident, causing a delay of one hour and thirty minutes in taking off the flight on that day. In fact, that incident led to a charge against the second respondent, for which he was also found guilty and punished., The present allegation is that the second respondent sent his version of facts to the Chairman and Managing Director by e‑mail, bypassing the proper channel. The statement of L.W.11 Ms. Sathya Subramanian, SC/ST Liaison Officer, is relevant. She stated that the enquiry revealed that the allegations about the occurrence said to have taken place on 05.02.2019 at about 9 a.m. against the first accused are false. Movement Controllers Sadacharam and Janakiraman were present at the place of occurrence and gave statements that the first accused left the place after speaking to them and eventually the second respondent also left., It is stated that the second respondent sent his e‑mail at about 23:07, but he also stated that he was threatened by the second accused through a call made to 044-22560088 at about 20:35 on 30.01.2019. If the e‑mail was sent only at 23:07, the alleged consequential incident could not have occurred at 20:35. The inherent material contradictions in the complaint make the allegation unbelievable and impractical. The telephone conversation did not last more than a minute, further rendering the allegation improbable., The second respondent stated that when he was threatened by the first accused on 05.02.2019 at about 9:25 a.m., the first accused made whimsical smiling and threatening gestures at the movement control sections. This was witnessed by Sadacharam and Janakiraman who were on duty. However, L.W.11 Ms. Sathya Subramanian stated that enquiry with Sadacharam and Janakiraman did not reveal any such occurrence., Even if it is accepted that the first accused showed threatening gestures, that cannot be considered a threat made with intention to humiliate the second respondent, who is a member of the Scheduled Caste community. The learned counsel for the second respondent submitted that as a consequence of the alleged intimidation, the second respondent suffered shivering and palpitation, made a log entry, and consulted the company doctor who advised immediate medical attention. The blood pressure of the second respondent rose to 200/130 on the alleged day due to anxiety and palpitation., The company doctor, L.W.9, stated that the second respondent has blood pressure and diabetes and has been under treatment since 2017. In his statement, he noted that on 05.02.2019 the second respondent came for treatment, appeared abnormal, and when asked whether he had fought with anyone, the second respondent said that Accused 1 to 3 humiliated him by caste abuse., However, the second respondent has not stated that on 05.02.2019 he was humiliated by caste abuse by Accused 1 to 3. He stated that on the alleged date and time the first accused made threatening gestures with whimsical smiles. Hence the doctor's statement appears to exceed the complainant's statement and seems exaggerated. Another doctor, L.W.10, stated that he neither enquired why the complainant had high blood pressure nor did the second respondent give any reason for it., The above materials are self‑contradictory, and subjecting the petitioners to trial would waste the Court's time; even if the materials remain uncontroverted, they will not prove guilt against the petitioners., Since the petitioners fall within the purview of public servants, being employees of Air India Limited, a Government Corporation, the mandates of Section 197 of the Code of Criminal Procedure ought to have been complied with before filing the charge sheet. Although in exceptional circumstances failure to obtain sanction cannot vitiate the proceedings and sanction can be obtained later, the sanction is mandatory and should have been obtained before laying the charge sheet, unless extraneous reasons justify later sanction., The primary submission of the department officers is that the second respondent abused the process of law by taking advantage of the welfare legislation. Under such circumstances, prior sanction is essential and the delay cannot be overlooked. The object of obtaining sanction under Section 197 is to protect public servants from false and frivolous complaints while they discharge official duties. In the decision of N. K. Ganguly v. Central Bureau of Investigation, New Delhi reported in (2016) 2 SCC 143, it was held that obtaining sanction under Section 197 of the Code of Criminal Procedure is imperative and without sanction the Court cannot take cognizance., In that judgment, paragraph 34 held that if Section 197 is construed too narrowly it can never be applied, because an official act can be performed in discharge of official duty as well as in dereliction of it. Paragraph 35 observed that for the purpose of obtaining prior sanction from the appropriate government under Section 197, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations in the final report against the appellants to decide whether prior sanction is required before taking cognizance of the alleged offence by the learned Special Judge., In the instant case, since the allegations in the final report state that the alleged offences were committed by the appellants in discharge of official duty, it was essential for the Special Judge to decide whether prior sanction from the Central Government under Section 197 was required before taking cognizance and issuing summons to the appellants., All the allegations about the occurrence took place in the workplace where both the petitioners and the second respondent are public servants. Hence prior sanction is imperative. No acceptable reason is stated as to why sanction could not be obtained before laying the charge sheet., The complaint contains three different occurrences involving accused 1 to 3 separately. For each occurrence, individual complaints ought to have been made at the relevant time against each accused; such allegations cannot be combined in one complaint and culminate into a single charge sheet., There is a considerable delay in giving the complaint. While delay alone cannot be a reason to quash the proceedings, it can be one of several factors indicating abuse of process. The delay affects the spontaneity of the complainant's statement and may lead to exaggerations. In view of the delay, this possibility cannot be dispensed with., If criminal proceedings are manifestly attended with malafides and maliciously instituted with an ulterior motive for vengeance due to personal grudge, it is appropriate for the Courts to exercise their powers under Section 482 of the Code of Criminal Procedure. This principle was settled in State of Haryana and Others v. Bhajan Lal and Others, 1992 Supp (1) SCC 335, and has been followed by various High Courts including this Court., The courts have a duty to ensure that the inherent powers under Section 482 are not used to obstruct a legitimate prosecution. At the same time, the courts should not hesitate to use that power to prevent anyone from being burdened with criminal prosecution by abusing the process for personal scores. In the present case, the second respondent was an employee of Air India and was under the control and supervision of the accused 1 to 3. He was also subjected to disciplinary proceedings on account of certain lapses reported by the second accused., In all possibilities the welfare legislation made for the benefit of members of the Scheduled Castes and Scheduled Tribes should be enforced sincerely. But if the provisions are misused, that cannot be viewed lightly. The possibility of misuse was visualized by the Supreme Court in Union of India v. State of Maharashtra & Ors, (2020) 4 SCC 761, which observed that there is no presumption that members of Scheduled Castes and Scheduled Tribes may misuse the law as a class; false reports are due to human failing, not caste factor., The second respondent was found to be in the habit of sending various complaints, at least 120 of that nature, to superior officers and outside authorities. Every little action or annoyance cannot be understood as an offence under the SC/ST Act unless it is proved to be intentional and because of the victim's caste. The petitioners, as officers, could have remarked about his lapse or conduct; that cannot be given criminal colour., In all probabilities, the materials do not disclose any cognizable offence against the petitioners in respect of the charges. Considering the materials holistically, the proceedings should be quashed to meet the ends of justice and prevent abuse of process of law., In the result, the Criminal Original Petitions in Criminal Original Petition Numbers 845, 850 & 852 of 2021 are allowed and the proceedings initiated against the petitioners/accused 1 to 3 in Special Court No. 74 of 2020 on the file of the Principal Sessions Judge, Chengalpattu, are quashed. Consequently, connected miscellaneous petitions are closed.
id_809	0	Plaintiff: Bhagwan Shrikrishna Virajman at Katra Keshav Dev Khewat No. 255 and seven others. Defendant: Uttar Pradesh Sunni Central Waqf Board and three others. Counsel for Plaintiff: Devki Nandan Sharma, Prabhash Pandey, Pradeep Kumar Sharma. Counsel for Defendant: Nasiruzzaman, Gulrez Khan, Hare Ram, Nasiruzzaman, Punit Kumar Gupta, Honourable Mayank Kumar Jain, J. Heard Senior Standing Harishankar Jain, Prabhash Pandey, Shailendra Singh and Ms. Reena N. Singh through video conferencing and Senior Standing Vishnushanker Jain, Radhey Shyam Yadav, Ashutosh Pandey (in person), Pradeep Kumar Sharma, Anil Kumar Bisen, Leena Srivastava, M. P. Singh Gaur, Mahendra Pratap Singh, Rama Goel Bansal, Vinay Sharma, learned counsel for plaintiffs, and Senior Standing Nasiruzzaman, Mahmood Pracha (through video conferencing), Hare Ram Tripathi, Pranav Ojha, learned counsel for the defendants., Shri Vishnu Shankar Jain, learned counsel for the plaintiffs, has filed an application under Order IV-A read with Section 151 of the Civil Procedure Code, 1908 on behalf of the plaintiffs that the present suit was filed before the Civil Judge (Senior Division), Mathura on 25.09.2020 which was registered as Original Suit No. 353 of 2022. After filing of this suit, certain other suits of a similar nature concerning the 13.37 acre land of Katra, Keshav Dev and for removal of the disputed structure from the land in question have been filed. In total, till date eighteen suits have been filed which are pending before the High Court for trial., The plaintiffs filed transfer application No. 88 of 2023 before the High Court for transferring the instant suit and other suits to this Court for trial which was allowed vide judgment and order dated 26.05.2023 directing to transfer the present suit i.e. Civil Suit No. 353 of 2022 and all other suits of a similar nature to this Court. In view of the provision contained in Order IV-A of the Civil Procedure Code, the suits are required to be consolidated in the interest of justice. It is prayed that the other seventeen suits pending before this Court for trial be consolidated with the suit of the plaintiffs. It is further submitted that by consolidation of the suits the time of the Court as well as the expenses of the parties can be saved. This would avoid the possibility of conflicting judgments. Further, it is submitted that the suit may be decided expeditiously in accordance with law., On an earlier occasion, Shri Punit Kumar Gupta and Shri Nasiruzzaman, Shri Hare Ram Tripathi and Pranav Ojha appearing on behalf of defendants No. 1 to 4 had submitted that the suits of similar nature and involving the same question may be consolidated., Today learned counsel Shri Mahmood Pracha, appearing on behalf of defendant No. 2 through video conferencing, submitted that he is opposing the prayer for consolidation., Shri Nasiruzzaman, the learned senior advocate, reiterated his consent for consolidation of suits on behalf of defendant No. 2., Learned counsels for defendants No. 3 and 4 submitted that they have no objection if suits of similar nature are consolidated., The learned counsel appearing on behalf of plaintiffs in Original Suit No. 02/2023 to Original Suit No. 18/2023 submitted that since the relief claimed by them is similar on the set of facts mentioned in the plaint of Original Suit No. 01/2023, therefore their suits may be consolidated., Learned Senior Counsel Shri Hari Shankar Jain, appearing through video conferencing on behalf of plaintiffs, submitted that the High Court can suo moto consolidate the suits. He further vehemently argued that the consent of any party is not required. The consolidation of suits does not have any effect on the merit of the case and it is a rule of convenience to save the time of the Court, the expenses of the parties and also to prevent conflicting judgments., Order IV-A of the Civil Procedure Code provides thus: When two or more suits or proceedings are pending in the same Court, and the Court is of opinion that it is expedient in the interest of justice, it may by order direct their joint trial, whereupon all such suits and proceedings may be decided upon the evidence in all or any of such suits or proceedings., The record of the present suit as well as the other seventeen suits pending before the High Court for trial has been perused., The details of the other suits pending before the High Court are referred to in the following manner: No; High Court Case Number (Original Suit No.); Lower Court Case Number (Suit No.); Name of Parties. 1/2023 R.S 176/2020 Bhagwan Shri Krishan Virajman at Katra Keshav Dev and Others v. Uttar Pradesh Sunni Central Waqf Board and Others. 2/2023 R.S 152/2021 Bhagwan Shri Krishan Virajman and Others v. Uttar Pradesh Sunni Central Waqf Board and Others. 4/2023 R.S 12/2023 Shri Krishan Janmbhoomi Mukti Nirman Trust Central Office and Others v. Shahi Masjid Idgah Management Committee and Others. 5/2023 R.S 683/2021 Gopal Giri Maharaj Chela and Others v. Uttar Pradesh Sunni Central Waqf Board and Others. 6/2023 R.S 839/2022 Bhagwan Bal Shree Krishna Virajman Thakur Keshav Dev Ji Maharaj and Others v. Intzamia Committee, Shahi Masjid Idgah and Others. 7/2023 R.S 317/2023 Shri Bhagwan Shri Krishan Lala Virajman and Others v. Uttar Pradesh Sunni Central Waqf Board Lucknow and Others. 7 OSUT-8/23 R.S 603/2022 Thakur Keshav Dev Ji Maharaj and Others v. Uttar Pradesh Sunni Central Waqf Board through its Chairman and Others. 9/2023 R.S 620/2021 Bhagwan Shri Baal Krishan Keshav Dev Virajman and Others v. Uttar Pradesh Sunni Central Waqf Board through its Chairman and Others. 11/2023 R.S 423/2023 Shri Krishan Bhagwan @ Shri Krishan Lala @ Thakur Keshav Dev Ji Maharaj and Others v. Uttar Pradesh Sunni Central Waqf Board through its Chairman and Others. 12/2023 R.S 174/2021 Thakur Keshav Dev Ji Maharaj Virajman and Others v. Uttar Pradesh Sunni Central Waqf Board through its Chairman and Others. 13/2023 R.S 950/2020 Thakur Keshav Dev Ji Maharaj Virajman Mandir and Others v. Intjamia Committee, Shahi Masjid Idgah and Others. 14/2023 R.S 107/2023 Thakur Keshav Dev Ji Maharaj Virajman v. Intjamia Committee, Shahi Masjid Idgah and Others. 15/2023 R.S 252/2021 Thakur Keshav Dev Ji Maharaj Virajman and Others v. Uttar Pradesh Sunni Central Waqf Board and Others. 16/2023 R.S 107/2021 Devta Bhagwan Shri Krishan Lala Virajman and Others v. Committee of Management, Trust of Alleged Shahi Masjid Idgah and Others. 18/2023 R.S 633/2023 Bhagwan Bal Krishan Keshav Dev Virajman Garbh Griha, minor Shri Krishan Janmbhoomi Sthan Katra Keshav Dev and Others v. Committee of Management, Trust Alleged Shahi Idgah and Others., Perusal of the record relating to the relief claimed in Original Suit No. 01/23, 02/23, 04/23, 05/23, 06/23, 07/23, 08/23, 09/23, 11/23, 12/23, 13/23, 14/23, 15/23, 16/23 and 18/23 shows that they are similar. These suits are of similar nature. The proceedings in these suits can be taken up and the suits may be decided simultaneously on the basis of common evidence. To save the time of the Court, the expenses to be incurred by the parties, and to avoid conflicting judgments, it appears expedient in the interest of justice to consolidate the suits with each other., The Original Suit No. 03 is concerned; it is filed against the Union of India and others., As far as Suit No. 10 of 2023 is concerned, an application for restoration of the suit is pending. Although the nature of the suit and relief claimed in the suit are similar to other suits, the matter of consolidation of this suit with other suits shall be taken into consideration at a later stage., Since, in Original Suit No. 17 of 2023, an application under Order I Rule 8 read with Section 151 of the Civil Procedure Code is pending for disposal, the issue of consolidation of this suit with other suits will also be taken into consideration later on., Considering the arguments advanced by the learned counsel for the parties and in the interest of justice, Original Suit Nos. 1/23, 2/23, 4/23, 5/23, 6/23, 7/23, 8/23, 9/23, 11/23, 12/23, 13/23, 14/23, 15/23, 16/23 and 18/23 (referred to in the table above) are consolidated., The suit No. Original Suit 01/2023 Bhagwan Shri Krishan Virajman at Katra Keshav Dev Khewat No. 255 and others v. Uttar Pradesh Sunni Central Waqf Board through Chairman and others is made as the leading case., It is however made clear that the applications pending in other suits shall be dealt with in accordance with the law along with the leading case., Learned counsel for the plaintiffs Shri Vishnu Shankar Jain submitted that vide its order dated 14.12.2023 the High Court has allowed the application of the plaintiffs to appoint a panel of three advocates as a commission for inspection of the disputed property. The composition and the modalities of the commission are yet to be determined by the Court. He further submitted that pursuant to order dated 14.12.2022 he has submitted an application that the commission may be headed by a retired High Court Judge and two advocates. It is also prayed that certain advocates on behalf of plaintiffs may also be permitted to participate in the proceedings of the commission. Since the matter is of urgent nature, the composition and modalities of the commission be laid down today., Shri Ashutosh Pandey, one of the plaintiffs, appearing in person in Original Suit No. 4 of 2023 submitted that his application for inspection of the property, paper No. 9C, is pending consideration and every day defendant No. 1 are causing damage to the wall and gates of the property owned by plaintiffs. They have installed a huge generator adjacent to the wall of the temple. He further submitted that his application be tagged with the prayer of the plaintiffs made through Original Suit No. 1., The learned counsel for the plaintiffs in Original Suit Nos. 6/2023 and 13/2023 having paper No. 9C and 145C respectively be also tagged with the prayer of the plaintiffs made through Original Suit No. 1., The High Court is informed that Shri Punit Kumar Gupta, learned counsel for Uttar Pradesh Sunni Central Waqf Board Lucknow, has moved an application on the ground that his father has expired and he is not able to attend the Court., Shri Punit Kumar Gupta, learned counsel for Uttar Pradesh Sunni Central Waqf Board Lucknow, is also to be heard on the composition and modalities of the commission., Shri Nasiruzzaman, learned counsel for defendant No. 2, prayed for some date for argument.
id_81	0	Pintu son of Uttam Sonale (C‑10855), age 31 years, occupation convict, resident of Mantha, Taluka Hathgaon, District Nanded, presently confined at Central Prison Nasik, is the petitioner. The State of Maharashtra, represented by the Superintendent of Nasik Central Prison, is the respondent. Mr. Rupesh Jaiswal appears for the petitioner and Mr. Deepak Thakare, with Mr. J. P. Yagnik, appears for the State. The judgment is delivered by Justice G. S. Kulkarni., The petitioner approached the Division Bench of the Bombay High Court, Nagpur Bench, seeking release on emergency COVID‑19 parole. He is convicted under Section 376 of the Indian Penal Code and Sections 3, 4 and 5 of the Protection of Children against Sexual Offences Act, 2012 (POCSO Act). The prayer relies on the amendment to Rule 19(1) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959, effected by Government Notification dated 8 May 2020, which introduced sub‑rule (C) to provide for release of convicted prisoners on emergency parole in pursuance of the State Government notification under the Epidemic Diseases Act, 1897., The Division Bench noted several orders of coordinate benches on similar pleas, namely: Vijendra Malaram Ranwa v. State of Maharashtra & Anr., Sardar son of Shawali Khan v. State of Maharashtra & Anr., Shubham son of Devidas Gajbhare v. State of Maharashtra, and Kalyan son of Bansidharrao Renge v. State of Maharashtra & Anr. The Bench observed an apparent conflict between the decision in Vijendra Malaram Ranwa (where emergency parole was granted to a petitioner convicted under the POCSO Act) and the decision in Sardar son of Shawali Khan (where the petitioner convicted under the Terrorist and Disruptive Activities (Prevention) Act – TADA – was not entitled to emergency parole). Both Acts are special statutes and were not specifically mentioned in the proviso to the amended sub‑rule (C)., On this backdrop, the Division Bench opined that the conflict between the two decisions necessitated reference of the petition to a Full Bench of the Bombay High Court, Nagpur Bench. The observations in paragraphs 19 to 21 of the order highlighted that the POCSO Act, like TADA, is a special Act and that the purpose of the special Acts was to protect vulnerable sections of society. The Bench concluded that the issue of whether a prisoner convicted under the POCSO Act is eligible for emergency COVID‑19 parole under Rule 19(1)(C) requires authoritative settlement., Pursuant to the Division Bench order, the Hon’ble Chief Justice constituted a Full Bench. By an order dated 3 November 2020, the following questions were framed for determination: (i) Which interpretation of Rule 19(1) sub‑rule (C), as adopted in Vijendra Malaram Ranwa v. State of Maharashtra & Anr. or in Sardar son of Shawali Khan v. State of Maharashtra & Anr., is correct? (ii) Whether the provisions of emergency parole introduced by the amendment to Rule 19(1) by insertion of sub‑rule (C) would cover prisoners convicted under the Protection of Children against Sexual Offences Act, 2012?, The Supreme Court, in Suo Motu Writ Petition (C) No. 1 of 2020, expressed concern about the health of inmates in prisons and remand homes during the COVID‑19 pandemic. It observed that overcrowding in prisons is a serious issue and, having regard to Article 21 of the Constitution of India, directed State and Union Territory governments to constitute a High Power Committee comprising the Chairman of the State Legal Services Committee, the Principal Secretary (Home/Prison), and the Director General of Prison, to determine categories of prisoners eligible for release on parole or interim bail., In compliance with the Supreme Court directions, the State Government constituted a High Power Committee on 25 March 2020. The Committee laid down norms, notably: (iii) Convicted prisoners whose maximum sentence exceeds seven years shall, on application, be considered for release on emergency parole if they have returned to prison on time after the last two releases (parole or furlough), for a period of 45 days or until the State Government withdraws the notification under the Epidemic Diseases Act, 1897, whichever is earlier; the period may be extended in blocks of 30 days, and the prisoner must report to the concerned police station every 30 days. (iv) The directions shall not apply to under‑trial prisoners, convicted prisoners booked for serious economic offences or bank scams, offences under special Acts, foreign nationals, or prisoners whose place of residence is outside the State of Maharashtra., On 8 May 2020, the State Government, exercising powers under Sections 5 and 28 of Section 59 of the Prisons Act, 1894, notified the Maharashtra Prisons (Bombay Furlough and Parole) (Amendment) Rules, 2020, thereby inserting clause (C) into Rule 19 to provide for emergency parole in view of a pandemic declared under the Epidemic Diseases Act, 1897. The inserted provision reads: ‘When a prisoner may be released on emergency parole: (C) On declaration of epidemic under the Epidemic Diseases Act, 1897, by the State Government: (i) For convicted prisoners whose maximum punishment is seven years or less, on application, parole may be granted for 45 days or until the notification is withdrawn, with extensions of 30‑day blocks; the prisoner must report to the police station every 30 days. (ii) For convicted prisoners whose maximum sentence is above seven years, parole may be granted on application if the convict has returned to prison on time after the last two releases, for 45 days or until the notification is withdrawn, with similar extensions and reporting requirements. Provided that the directions shall not apply to convicted prisoners for serious economic offences, bank scams, offences under special Acts (other than the Indian Penal Code), foreign nationals, or prisoners residing outside Maharashtra.’, A further meeting of the High Power Committee was held on 11 May 2020 to consider additional categories of prisoners for release. The Committee recommended release of all under‑trial prisoners charged with offences punishable with imprisonment of seven years or more, and also suggested granting interim bail to under‑trial prisoners involved in offences such as IPC Chapter VI offences against the State, IPC sections 121 to 364(A), 366, 366(A), 366(B), 367‑374, 489(a)‑(e), bank frauds and major financial scams, the Narcotic Drugs and Psychotropic Substances Act, the Anti‑Hijacking Act, NDPS (other than personal consumption), and foreign nationals., The central issue before the Full Bench is the interpretation of the proviso to sub‑rule (C) of Rule 19(1): whether the proviso excludes prisoners convicted under special Acts other than those expressly listed, such as the POCSO Act, by using the words ‘like’ and ‘etc.’. The question is whether the proviso’s non‑exhaustive list of special Acts should be read to include other similar special statutes., In Vijendra Malaram Ranwa (supra), the petitioner was convicted under Sections 6, 10, 12 of the POCSO Act and Sections 77(1) and 77(2) of the Indian Navy Act. The Division Bench held that, because the POCSO Act is not mentioned in the proviso, there is no impediment to granting emergency parole. The order stated: ‘Considering the language of the proviso of the notification dated 8 May 2020 and the fact that the offence under the POCSO Act is not mentioned in the proviso which bars grant of parole, there should not be any impediment in releasing the petitioner on parole.’, In Sardar son of Shawali Khan (supra), the petitioner was convicted under the Terrorist and Disruptive Activities (Prevention) Act (TADA). The Division Bench observed that although TADA is not specifically mentioned in the proviso, the non‑exhaustive list of special Acts indicated that other similar special enactments could be considered, and the authority could decide that a TADA convict would not benefit from the notification dated 8 May 2020. The Court held that the proviso’s use of ‘like’ and ‘etc.’ meant the list of special Acts was not exhaustive and that the authority could exclude TADA convicts from emergency parole., In Shubham son of Devidas Gajbhare (supra), the petitioner was convicted under Sections 363, 366A and 376A of the Indian Penal Code. The Division Bench, applying Rule 19(1)(C) and Rule 4(21) of the 1959 Rules, observed that because the conviction involved sexual offences against a minor, the benefit of furlough could not be granted, and the application for emergency parole was rejected., In Kalyan son of Bansidharrao Renge (supra), the petitioner was convicted under Section 376(2)(g) of the Indian Penal Code and sentenced to rigorous imprisonment for ten years. The Division Bench, considering sub‑rule (C) inserted by the 8 May 2020 notification, observed that the petitioner deserved release on emergency parole, without providing a specific interpretation of the rule., These varying interpretations highlight that parole and furlough rules are part of the penal and prison system and that parole is not a matter of right. As observed in Prahalad Dnyanoba Gajbhiye v. State of Maharashtra (1996), parole is a statutory privilege, not a vested right. The Chief Justice, in his concurring opinion in National Alliance for People’s Movements (supra), emphasized that the right to temporary release during the pandemic is not derived from the Constitution or any statute, but is a special privilege granted based on the High Power Committee’s determination., The proviso to sub‑rule (C) of Rule 19(1) expressly excludes prisoners convicted for serious economic offences, bank scams, or offences under special Acts (other than the Indian Penal Code) such as the Maharashtra Control of Organised Crime Act, Prevention of Money‑Laundering Act, Maharashtra Protection of Interest of Depositors Act, Narcotic Drugs and Psychotropic Substances Act, and Unlawful Activities (Prevention) Act, and also excludes foreign nationals and prisoners residing outside Maharashtra. The use of the words ‘like’ and ‘etc.’ indicates that the list is illustrative and not exhaustive, thereby allowing the authority to exclude other similar special Acts., In our opinion, the language of the proviso clearly shows that sub‑rule (C) of Rule 19(1) does not apply to prisoners convicted under serious special Acts, including the POCSO Act, when the offence falls within the category of serious offences contemplated by the proviso. The authority must consider the seriousness of the offence and the nature of the special Act before granting emergency parole., Consequently, the petitioner's contention that the POCSO Act’s omission from the proviso automatically entitles him to emergency parole is not sustainable. The notification is consistent with Rule 19(1) and does not confer a vested right. The proviso must be read in its entirety, applying the principle of ejusdem generis, to exclude prisoners convicted under serious special Acts from the benefit of emergency parole under sub‑rule (C)(ii).
id_81	1	Thus in our opinion the words as appearing in the bracketed portion would not restrict the meaning and intention the proviso intends to achieve to make an exception from application of Prashant Rane,PS sub‑rule (C)(ii) to those convicted for serious offences for a term of more than seven years. We thus find that the intention is certainly not to classify the Special Acts only on the applicability of the words as used in the bracketed portion in the proviso but the primary focus of the proviso is to carve out an exception to applicability of sub‑rule (C)(ii) for the prisoners who are convicted for serious offences as not only in the specified Special Acts but also under those Special Acts which are intended to be included within the proviso and not specially mentioned. In our clear opinion the Special Acts like POCSO and/or TADA are certainly required to be read in the proviso so as to make sub‑rule (C)(ii) inapplicable to the category of convicts falling therein., Mr Yagnik, learned Additional Public Prosecutor for the State would be justified in referring to the orders of the Supreme Court of India in the case of National Alliance for People's Movements & Ors. v. State of Maharashtra & Ors. rejecting the challenge to the decision of the Division Bench in National Alliance for People’s Movements & Ors. The Supreme Court of India has justified the categorisation of offences and convicts as undertaken by the High Power Committee, when the Committee has based such categorisation on the seriousness of the offences having adverse impact on society at large. The following observations of the Supreme Court of India are required to be noted: In that circumstance what has been curtailed by the Committee by excluding certain categories is only with a view to deny the benefit of certain category of jail inmates who are charged with serious offences which has an adverse effect on society at large though the length of the punishment that can be imposed may be lesser. Such persons charged under the special enactments or convicted for a period more than seven years, if they are not otherwise dis‑entitled to bail in a normal circumstance, could still seek bail in accordance with law and cannot treat the pandemic as a fortuitous circumstance to secure bail to which they were otherwise not entitled by claiming equal treatment., The avowed intention to have such proviso can also be gathered from what the Supreme Court of India has enunciated in commenting on prisoners convicted for serious offences. The Supreme Court of India in Asfaq v. State of Rajasthan and others has expressed a concern that when penal reforms are introduced, the State which runs the administration on behalf of society and for the benefit of society cannot be unmindful of safeguarding the legitimate rights of citizens in regard to their security in matters of life and liberty. The authorities cannot be oblivious of the obligation to society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty of having perpetrated a criminal act. It was observed that one of the discernible purposes of imposing the penalty of imprisonment is to render society immune from the criminal for a specified period. While meting out humane treatment to the convicts, care has to be taken to ensure that kindness to the convicts does not result in cruelty to society., Their Lordships in paragraphs 17 and 18 made the following observations: Thus, not all people in prison are appropriate for grant of furlough or parole. Obviously, society must isolate those who show patterns of preying upon victims. Yet administrators ought to encourage those offenders who demonstrate a commitment to reconcile with society and whose behaviour shows that they aspire to live as law‑abiding citizens. Thus, parole programme should be used as a tool to shape such adjustments. To sum up, in introducing penal reforms, the State that runs the administration on behalf of society and for the benefit of society at large cannot be unmindful of safeguarding the legitimate rights of citizens in regard to their security in matters of life and liberty. It is for this reason that the authorities cannot be oblivious of the obligation to society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty by a Court of having perpetrated a criminal act. One of the discernible purposes of imposing the penalty of imprisonment is to render society immune from the criminal for a specified period. It is therefore understandable that while meting out humane treatment to the convicts, care has to be taken to ensure that kindness to the convicts does not result in cruelty to society. Naturally enough, the authorities would be anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit another crime when he is at large for the time being under the furlough leave granted to him as a measure of penal reform., In view of the above discussion, we find ourselves in agreement with the view taken by the Division Bench in Sardar son of Shawali Khan case as also with the view taken by the Division Bench in Shubham son of Devidas Gajbhare case. We accordingly answer the two questions as framed by us as follows: (Q‑i) The decision of the Division Bench in Sardar son of Shawali Khan makes the correct interpretation of Rule 19(1) sub‑rule (C) of the 1959 Rules whereas the decision of the Division Bench in Vijendra Malaram Ranwa would not lay down the correct position in law on the interpretation of the said rule. (Q‑ii) The provisions of emergency parole as brought about by amendment to Rule 19(1) by incorporation of sub‑rule (C) read with its proviso would cover prisoners convicted under the provisions of the Protection of Children against Sexual Offences Act, 2012., Having determined both the questions as posed before the Supreme Court of India, we place the criminal writ petition before the appropriate Bench., This order will be digitally signed by the Private Secretary / Personal Assistant of the Supreme Court of India. All concerned will act on production by fax or e‑mail of a digitally signed copy of this order.
id_811	0	The Collegium of the Supreme Court recommended the names of three advocates for appointment as judges of the High Court of Bombay. On 26 September 2022, the Chief Justice of the High Court of Bombay made the recommendation in consultation with his two senior‑most colleagues. The file was forwarded by the Department of Justice to the Supreme Court of India on 26 April 2023. The Chief Ministers and the Governors of the States of Maharashtra and Goa have concurred with the recommendation. In terms of the Memorandum of Procedure, with a view to ascertain the fitness and suitability of the candidates for elevation to the High Court, judges of the Supreme Court conversant with the affairs of the High Court of Bombay were consulted. For the purpose of assessing the merit and suitability of the candidates for elevation to the High Court, we have scrutinized and evaluated the material placed on record and have also perused the observations made by the Department of Justice in the file., Shri Shailesh Pramod Brahme has been found suitable for elevation by the consultee judges. He is a competent lawyer with approximately thirty years of practice in civil, criminal, constitutional and service law cases. No adverse material has been placed by the Department of Justice in the file. Considering these aspects, the Collegium is of the considered opinion that Shri Shailesh Pramod Brahme is eminently suitable for appointment as a judge of the High Court of Bombay., Shri Firdosh Phiroze Pooniwalla has been opined suitable for elevation by the consultee judges. The Intelligence Bureau stated in its report that he has a good personal and professional image, that nothing adverse has been noted regarding his integrity, and that he is not associated with any political party. The Intelligence Bureau also flagged that Shri Pooniwalla had earlier worked under an advocate who, in a 2020 publication, expressed concerns over an alleged lack of freedom of speech and expression in the country during the preceding five to six years. The views expressed by that former senior have no bearing on Shri Pooniwalla’s competence, ability or credentials for appointment as a judge of the High Court of Bombay. The Collegium notes that Shri Pooniwalla and his former senior practice on the Original side of the High Court of Bombay. Junior counsel associated with the chamber of a senior on the Original side are not in an employer‑employee relationship; they are free to undertake their own work and are entitled to independent legal practice. No adverse comments reflecting on the suitability of the candidate have been made in the file. The candidate has an extensive practice at the Bar and is specialized in commercial law. He professes Parsi Zoroastrianism and belongs to a minority community. Considering these aspects, the Collegium is of the considered opinion that Shri Firdosh Phiroze Pooniwalla is suitable for appointment as a judge of the High Court of Bombay., Shri Jitendra Shantilal Jain has been found suitable for elevation by the consultee judges. The Intelligence Bureau provided inputs with no adverse report concerning his integrity. He has acquired considerable experience during his twenty‑five years of practice, specializing in tax litigation. The High Court of Bombay handles a large volume of tax‑related cases, and a candidate with such a background would be an asset to the court. Enquiries made by a member of the Collegium conversant with the affairs of the High Court of Bombay regarding a matter flagged by the Intelligence Bureau about his work in the chamber of a senior on the taxation side about twenty years ago indicated that, although he had ceased working in that chamber, he subsequently joined the chamber of a noted senior counsel at the Bar. The fact that he left the earlier chamber has no bearing on his ability, competence or integrity. Considering these aspects, the Collegium is of the considered opinion that Shri Jitendra Shantilal Jain is suitable for appointment as a judge of the High Court of Bombay., In view of the above, the Collegium resolves to recommend that Shri Shailesh Pramod Brahme, Shri Firdosh Phiroze Pooniwalla and Shri Jitendra Shantilal Jain, advocates, be appointed as judges of the High Court of Bombay. Their inter se seniority shall be fixed as per the existing practice.
id_813	0	The petition was filed on 15 September 2021 and decided on 24 September 2021. The petitioner is represented by Mr Vishnu Shankar Jain, Advocate. The respondent is represented by Mr Tarang Srivastava, Additional Public Prosecutor for the State with Sub‑Inspector Ramkesh Meena of the Connaught Place Police Station., By this petition, the petitioner seeks regular bail in case First Information Report No. 152 of 2021 under Sections 188, 269, 270, 153‑A of the Indian Penal Code, the Epidemic Diseases Act, and Section 51(b) of the Disaster Management Act registered at Connaught Place Police Station., Learned counsel for the petitioner contends that the petitioner has been in custody in the above‑noted First Information Report since 10 August 2021 and that all offences except Section 153‑A of the Indian Penal Code are bailable offences. Further, even after reviewing the various video footages, the petitioner while giving his interview to the press or making any statement has not passed any offensive remarks against any particular religion which could incite violence and hence has committed no offence under Section 153‑A of the Indian Penal Code., According to the video footages, the event took place from 10.00 AM to 11.45 AM when no offence under Section 153‑A of the Indian Penal Code was committed and the petitioner left the spot at around 2.00 PM. The slogan shouting that took place at 4.00 PM and is the genesis of the First Information Report in question was not done by the petitioner and the petitioner was not present at the spot at that time; therefore he cannot be prosecuted for the act of the people who indulged in slogan shouting at 4.00 PM., It is stated that even as per the statement made to the press, the petitioner’s demand was for a Hindu Rashtra which cannot be said to be an offence under Section 153‑A of the Indian Penal Code., Reliance is placed on the decisions reported as (1997) 7 SCC 431 Bilal Ahmed Kaloo v. State of A.P.; (1988) 1 SCC 668 Ramesh s/o Chotalal Dalal v. Union of India; (2021) SCC Online SC 258 Patricia Mukhim v. State of Meghalaya & Ors.; (2021) SCC Online Bombay 1127 Sunaina Holey v. State of Maharashtra; and (1994) SCC Online Bombay 461 Joseph Bain D Souza & Anr. v. State of Maharashtra., The learned Additional Public Prosecutor for the State opposing the bail application states that the petitioner was a co‑organiser of the event and is thus responsible for the incitement which continued till the evening. Even in the interview given by the petitioner along with the co‑accused Pinki Chaudhary, inciting words against the other community have been stated. The decision of the Supreme Court in Bilal Ahmed Kaloo (supra) is not applicable on the facts of the case. The decision in Sunaina Holey relates to a Facebook post and is thus not applicable to the facts of the present case. It is stated that video coverage of the incident clearly makes out the offence punishable under Section 153‑A of the Indian Penal Code. Reliance is placed on the decision of the Supreme Court reported as (2004) 4 SCC 684 State of Karnataka v. Praveen Bhat., The above‑noted First Information Report was registered on the complaint of a Head Constable from Connaught Place Police Station who was on duty at Bank of Baroda, Sansad Marg near Jantar Mantar. He stated that on 8 August 2021 while he was on duty along with other staff, at approximately 9.00 AM many protestors having flags and banners in their hands came for protest for an unknown programme. They were informed that preparations for 15 August were going on, farmers were also on protest and guidelines under the Disaster Management Act had been issued. Imposition of Section 144 of the Criminal Procedure Code in the area was also informed and that no one can protest at that place without permission. However, they were very aggressive for their demands. A few people were making objectionable remarks about a particular religion. The people present there were also not following the rules of social distancing and a few people were without masks. Since the protestors were protesting without permission and had violated the Disaster Management Act guidelines, Section 144 Cr.P.C. order No. 1231‑59/SO/ACP/Connaught Place dated 21 June 2021 was invoked and legal action was to be taken against them., A status report has been filed in response to the present petition as per which Ashwani Upadhyay, Convener, Unite India Movement sent an e‑mail on 4 August 2021 to the Deputy Commissioner of Police, New Delhi District and Preet Singh, the petitioner herein, President, Save India Foundation, submitted an application with the request to allocate a suitable place and provide appropriate security on 8 August 2021 from 10 AM to 5 PM. In the e‑mail and the letter it was stated that Quit India Movement was launched on 8 August 1942 and they wanted to celebrate it. The two applications were considered and rejected in view of the directions of the Disaster Management Act prohibiting all types of social, political, sports, entertainment, cultural, academic, religious, festival and other related gatherings and congregations, as also to prevent and control the outbreak of the pandemic. The organisers also gave an undertaking that the gathering would be restricted to 50‑60 persons. However, the permission was denied keeping in view the enforcement of Disaster Management Act guidelines, the ongoing Parliament session and imposition of Section 144 of the Criminal Procedure Code in New Delhi District., As per the status report, since it was learnt through social media that the organisers were inviting people to gather at Jantar Mantar on 8 August 2021 and there was a possibility of a large gathering on the occasion, adequate force including paramilitary forces were deployed at the spot. On 8 August 2021 at around 9 AM, from various parts of Delhi and India and from various Hindu organisations, people started gathering in front of Park Hotel near Jantar Mantar with the number of people increasing rapidly. The organisers were asked repeatedly to stop and restrict the number of persons as stated in the undertaking given to the police. A large number of people gathered around the place of function at around 10.30 AM. Since people were not maintaining social distancing and most of them were not wearing masks, the organisers were told to reduce the number of persons as per the undertaking and also disperse as early as possible but they did not pay heed. Later it was informed by some people that some of the participants were raising objectionable slogans against a particular community in their interview to various media groups even when the programme was going on. However, they could not be identified on the spot. Later in the day some videos surfaced on social media explaining how some people had made such objectionable slogans. Pursuant to the above‑noted First Information Report, investigation was carried out to identify the said persons. Initially Sections 188, 269, 270, 153‑A of the Indian Penal Code, the Epidemic Diseases Act and Section 51 of the Disaster Management Act were invoked; however during the investigation Sections 120‑B and 34 of the Indian Penal Code were also added., According to the status report, the petitioner was the co‑organiser of the event along with Ashwani Upadhyay and his mobile number was the pilot number. He had reached Jantar Mantar along with the supporters of Save India Foundation and started the programme without going into the depth of the possibility of repercussions of joining the event. It is stated that as planned by the petitioner and his co‑accomplices, people gathered in huge numbers and seeing this opportunity the petitioner and his associates conspired to use the platform to create communal disharmony and to give communal colour to their plan. It is stated that on the one hand the petitioner gave an undertaking for a gathering of 60 to 70 persons and on the other hand he flashed his personal mobile number at all places requesting people to join them at Jantar Mantar on 8 August 2021 at 10.00 AM. He erected hoardings in this regard. It is further stated that from the call‑detail‑record analysis of the petitioner’s phone, presence of the petitioner from the night of 7 August 2021 till 2.00 PM on 8 August 2021 has been established and when the programme was going on, the petitioner along with Bhupender Tomar, Pinki Chaudhary and Deepak Singh made hate speeches and used hate words. Nine accused have already been arrested., State relies upon an interview of the petitioner and Pinki Chaudhary simultaneously to the press wherein the main conversation is with Pinki Chaudhary and the petitioner has stated certain facts like: \Hindu Rashtra will happen in April, yogi ek hai bhogi soo hai, soo yogi ki jarurat hai, kuch log is desh mein abhi gadhe baaki hain, unhe gadhe par bithake unhe aage sarka denge. Shayari nahi hai ye kayar hain, band kamre mein to kuch be kah deeve, yahan dahado naa, yahan hum khade hain, aao aamna saamna kar lo.\, Learned counsel for the petitioner and the learned Additional Public Prosecutor for the State have addressed extensive arguments on the issue whether the words spoken by the petitioner make out an offence under Section 153‑A of the Indian Penal Code or not. However, at this stage it would not be appropriate for the Supreme Court of India to express any opinion on the said determination which is required to be gone into at the stage of charge or during trial. The interview by the petitioner was not an isolated interview and was part of a simultaneous conversation with a number of speakers. Further, a large number of people gathered at the spot due to the petitioner co‑organising the protest and therefore the petitioner would be liable for any offence committed in furtherance of the common object of the assembly. However, as per the video footages and the call records of the petitioner, the petitioner left the spot at around 2.00 PM whereafter the main provocative words/slogans were shouted by the co‑accused at around 4.00 PM., The petitioner has been in custody since 9/10 August 2021. The petitioner is no longer required for custodial interrogation. It is therefore directed that the petitioner be released on bail upon furnishing a personal bond in the sum of Rs 50,000 with two surety bonds of the like amount, subject to the satisfaction of the learned Trial Court/Duty Magistrate, further subject to the condition that the petitioner shall not leave the country without the prior permission of the Supreme Court of India and in case of change of residential address and/or mobile phone number, the same will be intimated to the Supreme Court of India by way of an affidavit.
id_814	0	CNR No.: DLCT11-001154-2019 Case No.: CBI/296/2019 (Old CC No. 06/14 & 78/2016) RC No.: 219 2012 (E) 0013 Under sections 120-B, 409, 420 Indian Penal Code and sections 13(1)(c), 13(1)(d) of the Prevention of Corruption Act, 1988. In the matter of: Versus\n\n1. Messrs Grace Industries Limited, Nagpur through its authorized representative Shri Jasvant Sinh Parmar, Address: A-23, MIDC, Tadali Growth Centre, District Chandrapur, Maharashtra (Convict No. 1)\n\n2. Mukesh Gupta, Ex-Director, Messrs Grace Industries Limited, Nagpur, Son of Shri Deodutta Mahadeoprasadji, Resident of Gupta Bhawan, House No. 28, Near Hope Hospital, Dhantoli, Nagpur, Maharashtra (Convict No. 2)\n\n3. H.C. Gupta, Ex-Secretary, Ministry of Coal, Chairman of the 34th Screening Committee meeting, Uttar Pradesh-201301 (Convict No. 3)\n\n4. K.S. Kropha, Ex-Joint Secretary, Ministry of Coal, Member-Convener of the 34th Screening Committee meeting, Resident of D-1/39, Bharti Nagar, New Delhi-110003 (Convict No. 4)., Today, the case is listed for arguments on sentence. Submissions made by Shri Sanjay Kumar, learned Deputy Legal Advisor for Central Bureau of Investigation, Shri Akshay Ringe, learned counsel for Convict No. 1 Messrs Grace Industries Limited, Shri K.K. Patra, Amicus Curiae, and learned counsel for Convict No. 2 Mukesh Gupta and Shri Rahul Tyagi, learned counsel for Convicts No. 3 H.C. Gupta and No. 4 K.S. Kropha have been considered., It is submitted on behalf of Shri Sanjay Kumar, learned Deputy Legal Advisor for Central Bureau of Investigation that, as per the report of the Comptroller and Auditor General of India, a loss of Rs. 1.86 lakh crore was caused to the Government exchequer due to this coal block allocation scam. He submitted that, because of this scam, the Honorable Supreme Court of India, vide order dated 24 September 2014, cancelled the allocation of 214 coal blocks allocated to different companies. He further submitted that the impact of this scam is such that companies are not coming forward to mine the coal blocks and, despite the availability of ample coal, there is a shortage of coal supply and coal has to be imported. He submitted that convict H.C. Gupta is a previous convict, having been convicted in three cases namely Central Bureau of Investigation versus Messrs Vikash Metals and Power Limited and Others, Central Bureau of Investigation versus Messrs Kamal Sponge Steel and Power Limited and Others, and Central Bureau of Investigation versus Messrs Vini Iron and Steel Udyog Limited and Others. He also submitted that convict K.S. Kropha is a previous convict, having been convicted in two cases namely Central Bureau of Investigation versus Messrs Vikash Metals and Power Limited and Others, and Central Bureau of Investigation versus Messrs Kamal Sponge Steel and Power Limited. He relied on the judgments of Nimmagadda Prasad versus Central Bureau of Investigation, Hyderabad (Special Leave Petition (Criminal) No. 9706 of 2012) of the Honorable Supreme Court of India; Rekha Sharma versus Central Bureau of Investigation decided by the Honorable Delhi High Court on 5 March 2015; Shanti Lal Meena versus State of National Capital Territory of Delhi decided by the Honorable Supreme Court on 7 April 2015; State of Himachal Pradesh versus Nirmala Devi, 2017 Criminal Law Journal 2886; State of Madhya Pradesh versus Pappu @ Ajay, Special Leave Petition (Criminal) No. 1166 of 2006; Dhananjay Chatterjee versus State of West Bengal, 1994 Supreme Court Cases (Criminal) 358; State of Karnataka versus Sharanappa Basugonda Aregonda, 2002 Criminal Law Journal 2020 (Supreme Court); State of Karnataka versus Krishna @ Raja, 1987 Criminal Law Journal 776 (Supreme Court); State of Madhya Pradesh versus Saleem, 2005 Criminal Law Journal 3435 (Supreme Court); Siddarama and Others versus State of Karnataka, 2006 IV AD (Criminal) (Supreme Court); Ram Narain Popli versus Central Bureau of Investigation (decided on 14 January 2003); Ankush Maruti Shinde and others versus State of Maharashtra (Civil Appeal No. 881-882 of 2009) arising out of Special Leave Petition (Criminal) No. 8457-58 of 2008 decided on 30 April 2009. He submitted that the maximum punishment may be awarded to the convicts and the heaviest fine may be imposed, and that the punishments may be ordered to run consecutively in the interest of justice., Shri Akshay Ringe, learned counsel for Convict No. 1 Messrs Grace Industries Limited, submitted that not even a single gram of coal was mined and no loss was occasioned due to the offence of the convict company. He referred to the evidence of the Investigating Officer recorded on 11 January 2019, page 3, where the Investigating Officer stated: “During the course of investigation, it did come to my notice that on account of allocation of coal block to Messrs Grace Industries Limited, pecuniary benefit did take place as at the time of sale of the company an additional valuation of around Rs. 20 crore was arrived at on account of allocation of coal block to the company. It is correct that the said pecuniary benefit was extended to the erstwhile directors and not to the company.” He submitted that the benefit of the offence was received by the earlier directors of the company and therefore leniency should be shown while awarding fine on the company., Shri K.K. Patra, Amicus Curiae for Convict No. 2 Mukesh Gupta, submitted that the convict is 65 years of age and has lost everything due to this case. He submitted that all the assets of Mukesh Gupta have been attached and that the management of Messrs Grace Industries Limited has also gone out of his hands. He stated that the conduct of the convict during trial was above board and he never delayed the trial by seeking adjournment. He submitted that the Government had appointed the convict as Special Executive Magistrate. He further submitted that the convict is financially ruined and deserves leniency of the Special Judge, Prevention of Corruption Act, District Court, New Delhi., Shri Rahul Tyagi, learned counsel for Convicts No. 3 H.C. Gupta and No. 4 K.S. Kropha, submitted that there was no allegation at any stage against these two public servants that they ever sought or received any personal benefits from Convict No. 1 company Messrs Grace Industries Limited or from its Director Convict No. 2 Mukesh Gupta. He submitted that H.C. Gupta was appointed to the Competition Commission, but he resigned when he was summoned in the case. He submitted that the loss suffered by the country, as referred to by Shri Sanjay Kumar, was due to the refusal of the Government to agree to the proposal of officers of the Ministry of Coal to introduce bidding for the purpose of allocating coal blocks. He submitted that H.C. Gupta is today 75 years of age, is a diabetic patient and has been taking injectable insulin for the last 15 years. Similarly, K.S. Kropha is also a senior citizen. Both have attended each date of hearing regularly and have never sought any adjournment for delaying the trial. He submitted that both convicts are not flight risks, are retired and are financially in a precarious situation, and therefore prayed that leniency be shown while awarding sentence upon them., Submissions made on behalf of the prosecution and the convicted persons have been considered., Sentencing is the most important stage after conclusion of the trial in a criminal case. At this stage, mitigating circumstances as well as aggravating circumstances have to be considered by the Special Judge, Prevention of Corruption Act, District Court, New Delhi before deciding the sentence, and there cannot be any standard formula which the courts can apply even in the case of convictions for similar offences by different convicts in the same case or in different cases. Circumstances of each convict are often peculiar and unique. Sentencing should neither be too lenient, otherwise the law loses its deterrence, nor should it be harsher than required., Convict No. 1 Messrs Grace Industries Limited: Considering the entirety of facts and circumstances, the convicted company is awarded a fine of Rs. 1,00,000 for the offence under section 420 of the Indian Penal Code and a fine of Rs. 1,00,000 for the offence under section 120-B read with section 420 of the Indian Penal Code read with section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988., Convict No. 2 Mukesh Gupta: The Special Judge, Prevention of Corruption Act, District Court, New Delhi awards Mukesh Gupta four years rigorous imprisonment for the offence under section 420 of the Indian Penal Code and three years rigorous imprisonment for the offence under section 120-B read with section 420 of the Indian Penal Code read with section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. The sentences shall run concurrently. He is also sentenced to a fine of Rs. 1,00,000 for each of the two offences. In the event of failure to deposit the fine, he will suffer simple imprisonment for a period of one month for each offence. The benefit of section 428 of the Criminal Procedure Code shall be given and any period of detention already undergone shall be set off against the sentence of imprisonment. Considering his strained financial condition, the fine has been imposed., Convict No. 3 H.C. Gupta: H.C. Gupta is sentenced to three years rigorous imprisonment for the offence under section 120-B read with section 420 of the Indian Penal Code read with section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. He is also directed to pay a fine of Rs. 50,000. In case of failure to pay the fine, he will undergo simple imprisonment for one month. The sentences shall run concurrently. He shall also be given the benefit of section 428 of the Criminal Procedure Code and any period of detention already undergone shall be set off against the sentence., Regarding H.C. Gupta’s conviction under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988, it is noted that, with effect from 16 January 2014, the minimum imprisonment provided in the Act is four years and the maximum is ten years. However, at the time the offence was committed, the minimum imprisonment was one year and the maximum was seven years. Considering the overall facts and circumstances, the Special Judge, Prevention of Corruption Act, District Court, New Delhi awards H.C. Gupta rigorous imprisonment for a period of three years for this offence, together with a fine of Rs. 50,000. The sentences shall run concurrently and the benefit of section 428 of the Criminal Procedure Code shall apply., Convict No. 4 K.S. Kropha: The Special Judge, Prevention of Corruption Act, District Court, New Delhi awards K.S. Kropha two years rigorous imprisonment for the offence of criminal conspiracy under section 120-B read with section 420 of the Indian Penal Code read with section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. He shall also pay a fine of Rs. 25,000; in case of failure to pay the fine, he will undergo simple imprisonment for one month. Regarding the offence under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988, he is awarded rigorous imprisonment for a period of two years and a fine of Rs. 25,000. The sentences shall run concurrently and the benefit of section 428 of the Criminal Procedure Code shall be given., Conclusion: The sentences awarded to the convicts are as follows:\n\n1. Messrs Grace Industries Limited – Fine of Rs. 1,00,000 under section 420 of the Indian Penal Code and fine of Rs. 1,00,000 under section 120-B read with section 420 IPC read with section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988.\n\n2. Mukesh Gupta – Four years rigorous imprisonment for the offence under section 420 of the Indian Penal Code and three years rigorous imprisonment for the offence under section 120-B read with section 420 IPC read with section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988; fine of Rs. 1,00,000 for each offence. The sentences shall run concurrently. Benefit of section 428 of the Criminal Procedure Code shall also be given.\n\n3. H.C. Gupta – Three years rigorous imprisonment for the offence under section 120-B read with section 420 IPC read with section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 and fine of Rs. 50,000; additionally, three years rigorous imprisonment for the offence under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 and fine of Rs. 50,000. The sentences shall run concurrently. Benefit of section 428 of the Criminal Procedure Code shall also be given.\n\n4. K.S. Kropha – Two years rigorous imprisonment for the offence under section 120-B read with section 420 IPC read with section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 and fine of Rs. 25,000; additionally, two years rigorous imprisonment for the offence under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 and fine of Rs. 25,000. The sentences shall run concurrently. Benefit of section 428 of the Criminal Procedure Code shall also be given., A copy of the judgment is already provided to the convicts. A copy of this order shall also be provided free of cost to the convicts and their learned counsels immediately. The order shall also be uploaded on the website of the Special Judge, Prevention of Corruption Act, District Court, New Delhi forthwith. Announced in the Open Court by Arun Bhardwaj on the 8th day of August 2022.
id_816	0	The appellants the Chairman and the Manager of the City Union Bank Limited have preferred the present appeal against the Judgment and Order dated 01.02.2007 passed by the National Consumer Disputes Redressal Commission, Circuit Bench at Chennai (hereinafter referred to as the National Commission) in First Appeal Number 29 of 2005 arising out of the Judgment and Order dated 23.12.2004 passed by the State Consumer Disputes Redressal Commission, Chennai in O.P. Number 103/99., The short facts giving rise to the present appeal are that the respondent original complainant Mr. R. Chandramohan had filed the complaint being O.P. Number 103/99 against the appellants original opponents before the State Commission seeking direction against the appellants to re‑credit rupees eight lakhs covering two demand drafts – one bearing Number 166570 dated 28.06.1996 for rupees five lakhs and the other bearing Number 177923 dated 18.11.1996 for rupees three lakhs in his Current Account Number 3600. It was alleged in the complaint inter alia that the respondent complainant was the Managing Director of D‑Cube Constructions (P) Ltd. having its registered office at Chennai. Shri R. Thulasiram and Shri R. Murali were the other directors of the said Company. As per the further case of the respondent, a Current Account bearing Number 3600 was opened in the name of the said company with the appellants bank on 13.04.1995 and the respondent alone was permitted to operate the said account. During the end of 1996, there was misunderstanding between the respondent and one R. Kularaireman and, therefore, he had written a letter to the appellant Number 2 on 08.01.1997 requesting it not to allow withdrawals from the said current account. It was further case of the respondent that one Ravindra, an NRI residing at Malaysia had purchased three flats in the respondent’s projects and had informed the complainant that he had sent two drafts i.e., draft bearing Number 166570 dated 28.06.1996 for Rupees 5 lakhs and draft bearing Number 177923 dated 18.11.1996 for Rupees 3 lakhs, totally amounting to Rupees 8 lakhs. On the reconciliation of the accounts, it was found that the said two demand drafts were not credited in the said current account of the company opened with the appellant Number 2 bank. Despite the information sought by the respondent complainant, the appellant Number 2 did not furnish any information. Subsequently, the respondent came to know through Indian Overseas Bank that the said demand drafts were presented through the second appellant bank for clearing and the same were paid to the City Union Bank, Ram Nagar Branch. The respondent therefore once again requested the appellant Number 2 on 03.08.1998 informing it that the amount of the said two drafts were credited in some other accounts and therefore the same be re‑credited in his current account., Thereafter, correspondence ensued between the appellants and the respondent and it was found that a separate account in the name of D‑Cube Construction was opened and the said two drafts were credited in that account, as the said demand drafts were in the name of D‑Cube Construction. The respondent alleging collusion and negligence on the part of the appellants filed the complaint before the State Commission., The State Commission, allowing the said complaint with cost of Rupees 1,000, directed the appellants original opponents to pay the respondent complainant a sum of Rupees eight lakhs along with compensation of Rupees one lakh towards mental agony, loss and hardship. Being aggrieved by the said order, the appellants had preferred the First Appeal being 29/2005, which came to be dismissed by the National Commission vide the impugned order., The learned counsel appearing for the appellants submitted that the State Commission and the National Commission had committed an error in not appreciating the fact that in absence of any fault, imperfection, shortcoming or inadequacy in the performance, which was required to be maintained by the appellants bank, it could not be presumed that there was deficiency in service as defined under Section 2(1)(g) of the Consumer Protection Act, 1986 (hereinafter referred to as the said Act). He has relied upon the decision of the Supreme Court of India in case of Ravneet Singh Bagga versus KLM Royal Dutch Airlines and Another and in case of Branch Manager, Indigo Airlines Kolkata and Another versus Kalpana Rani Debbarma and Others to submit that the complaint filed by the respondent complainant was not maintainable before the State Commission, and even otherwise the respondent had failed to discharge the burden of proof that there was deficiency in service on the part of the appellants. He further submitted that the two demand drafts in question were issued in the name of D‑Cube Construction only, and it was on the instructions of R. Thulasiram, one of the co‑directors, the amounts of the said drafts were credited in the Current Account Number 4160 opened in the name of D‑Cube Construction. According to him, as per the letter dated 15.02.1997 addressed to the appellant bank by D‑Cube Constructions (P) Ltd., stating that the said Company had no objection if a current account in the name of D‑Cube Construction was opened, the said account was opened by Shri R. Thulasiram in his capacity as the proprietor of the proprietary concern. According to him, if any fraud was committed by the co‑director of D‑Cube Constructions (P) Ltd., such disputes pertaining to fraud would not fall within the jurisdiction of the State Commission or the National Commission to decide., However, learned counsel for the respondent complainant submitted that when the two forums have consistently held the appellants liable for the deficiency in service, the Supreme Court of India should not interfere with the same. He further submitted that the bank would be vicariously liable for the acts of its employees. As per the General Banking Principles and Guidelines laid down by the Reserve Bank of India, the account should not have been opened with the similar name of the company of which the complainant was the Managing Director. According to him, without the involvement of the officers of the bank, R. Thulasiram would not have encashed the drafts in question by opening a new current account in the name of D‑Cube Construction. He further submitted that there was a clear deficiency in service on the part of the appellant bank. In this regard he had relied upon the decision in case of Kerala State Cooperative Marketing Federation versus State Bank of India and Others and in case of Indian Overseas Bank versus Industrial Chain Concern., Having regard to the submissions made by the learned counsel for the parties and to the documents on record, the question that falls for consideration before the Supreme Court of India would be, whether the Commission or Forum under the Act could have entertained the complaint involving highly disputed questions of facts or involving allegations of tortious acts, the proceedings before the Commission or Forum being summary in nature?, In the instant case, it is not disputed that three drafts were issued by an NRI from Malaysia for the purchase of three flats. Out of three, one draft was for the sum of Rupees 5 lakhs dated 28.06.1996 and two drafts were for Rupees 3 lakhs and Rupees 6 lakhs dated 18.11.1996. It is also not disputed that the two drafts in question were issued in the name of D‑Cube Construction and not in the name of D‑Cube Constructions (P) Ltd. The Current Account Number 3600 was in the name of D‑Cube Constructions (P) Ltd., whereas the Current Account Number 4160 was opened on 15.02.1997 in the name of D‑Cube Construction by Shri R. Thulasiram, as the proprietor of his proprietary concern, when he was one of the Directors of D‑Cube Constructions (P) Ltd. It is also not disputed that appellant Number 2 bank had received a letter dated 15.02.1997 from D‑Cube Constructions (P) Ltd. giving no objection for opening the current account in the name of D‑Cube Construction. It is also not disputed that there were certain disputes going on between the Directors of the said company – D‑Cube Constructions (P) Ltd., Under the circumstances, when the Current Account Number 4160 was opened by R. Thulasiram as the proprietor of D‑Cube Construction, relying upon the letter dated 15.02.1997 written on behalf of D‑Cube Constructions (P) Ltd., and when the disputed two drafts in question which were in the name of D‑Cube Construction were credited in the account of D‑Cube Construction, it could not be said that there was any willful default or imperfection or shortcoming so as to term it as the deficiency in service on the part of the appellant bank within the meaning of Section 2(g) of the said Act. The counsel for the appellants has rightly relied upon the decision of the Supreme Court of India in case of Ravneet Singh Bagga (supra) as under: Section 2(i)(o) defines service to mean service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. Section 2(i)(g) defines deficiency to mean any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service., The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortious acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bona fide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances during the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service., The ratio of the aforesaid decision has also been followed in case of Branch Manager, Indigo Airlines Kolkata (supra). In Oriental Insurance Co. Ltd. versus Munimahesh Patel, this Court held that the proceedings before the Commission are essentially summary in nature and the issues which involve disputed factual questions should not be adjudicated by the Commission., So far as the facts of the present case are concerned, even if the allegations made in the complaint are taken on their face value, then also it clearly emerges that there was no wilful fault, imperfection, shortcoming or inadequacy in the discharge of the duty on the part of the employees of the appellants bank, which could be termed as deficiency in service under Section 2(1)(g) of the said Act. As emerging from the record, some disputes were going on amongst the Directors of the Company and one of the Directors, if allegedly had committed fraud or cheating, the employees of the bank could not be held liable, if they had acted bona fide and followed the due procedure., The proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious acts or criminality like fraud or cheating, could not be decided by the Forum or Commission under the said Act. The deficiency in service, as well settled, has to be distinguished from the criminal acts or tortious acts. There could not be any presumption with regard to the wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1)(g) of the Act. The burden of proving the deficiency in service would always be upon the person alleging it., In the instant case, respondent complainant having miserably failed to discharge his burden to prove that there was a deficiency in service on the part of the employees of the appellants bank within the meaning of Section 2(1)(g) of the Act, his complaint deserved to be dismissed, and is accordingly dismissed. The impugned orders passed by the State Commission and the National Commission are therefore quashed and set aside. The appeal stands allowed accordingly.
id_819	0	The National Law School of India University was established in 1986 to pioneer legal education reform and anchor the transformation of the Indian legal system through research and policy interventions. It is dedicated to the realisation of core constitutional values through a vital democracy committed to freedom and social justice. The University rests on a unique collaboration between legal academics, the Bar, the Bench and the State Government of Karnataka. This strong coalition has ensured that the University has remained the undoubted leader in legal education in India for the last three decades., The University pioneered the five‑year integrated Bachelor of Arts, Bachelor of Laws (Honours) programme in India. This programme remains the flagship degree at the National Law School of India University. It has several unique features. First, the programme is taught in three trimesters each academic year; in each trimester a student completes four courses, resulting in an intensive programme of sixty courses before graduation. Second, the programme is strongly interdisciplinary and students develop an understanding of law as well as the humanities and social sciences. Third, the pedagogy is Socratic, with students actively engaging with learning materials in the classroom and being continuously challenged. Fourth, after completing foundation courses in the first two years, students may choose courses from the third year, often taught by professionals and academics from around the world. Fifth, all students write a mandatory paper in almost every course and present these materials to develop research, writing and oral presentation skills. Finally, all students complete mandatory internships through the five‑year programme to develop field awareness and professional skills necessary for their future careers., Apart from the rigorous academic programme, students at the University engage in several co‑curricular and extra‑curricular activities. Mooting remains a core activity. In 1999 the University became the first Indian team to win the Philip C. Jessup International Law Moot Court Competition; it won again in 2013 and was runner‑up in 2018. In 2017 the University team won the Manfred Lachs Space Law International Moot competition for the third time, having previously won in 2009 and 2012. Students organise key annual events including the NLS Open Debate, Strawberry Fields Music Festival, Admit One Theatre Competition and the Spiritus Sports Fest. More information is available on the University website., Since inception, admission to the Bachelor of Arts, Bachelor of Laws (Honours) Degree Programme has been purely on the basis of merit as assessed through a common entrance exam. The University conducted its own All‑India entrance examination until 2008, when the Common Law Admission Test (CLAT) was conceived. In 2018 the Consortium of National Law Universities, comprising the Vice Chancellors of twenty‑two National Law Universities, was formed to establish a permanent CLAT Secretariat for the conduct of the CLAT., The COVID‑19 pandemic caused unforeseen difficulties and delays in the conduct of CLAT 2020. Repeated postponement of the examination resulted in uncertainty for students, parents and the participating universities. The National Law School of India University is uniquely disadvantaged as it follows a trimester system where every academic year is made up of three terms of ninety days duration, each term requiring sixty hours of classroom instruction per course and adequate time for examination and evaluation. Moreover, the academic offering for the third, fourth and fifth year of the Bachelor of Arts, Bachelor of Laws programme as well as the Master of Laws programme is fully integrated and requires a common academic calendar. Consequently, if the University is unable to complete admissions before the end of September 2020 it will inevitably result in a Zero Year with no admission, depriving law students of the opportunity to pursue their studies at India’s premier law university., The University is fully committed to ensuring that no student is denied the opportunity to study at the National Law School of India University in the academic year 2020‑21. Accordingly, the University is compelled by the current circumstances to conduct a separate admissions process for the Bachelor of Arts, Bachelor of Laws and Master of Laws programmes for the academic year 2020‑21. This matter was considered at length at a Faculty Meeting on 6 August 2020, where the Faculty unanimously resolved that all measures necessary to avoid a Zero Year be taken. The Executive Council, at its ninety‑first meeting held in two sessions on 12 August 2020 and 18 August 2020, unanimously resolved to authorize the University to develop an alternative admissions process in the event that CLAT 2020 was not conducted on 7 September 2020. On 28 August the Executive Committee of the Consortium of National Law Universities postponed CLAT 2020 from 7 September to 28 September 2020. A Faculty Sub‑Committee was constituted to develop a revised admission procedure. The Sub‑Committee considered all available options and concluded that a common entrance test conducted online at the earliest and with the lowest possible application fee would be a fair, transparent and accessible admissions process. This procedure was discussed at a Faculty Meeting on 31 August 2020. After incorporating the suggestions and revisions, a Revised Admission Notification for Academic Year 2020‑21 is hereby notified., The Admissions Notification exclusively governs all admissions to the Bachelor of Arts, Bachelor of Laws (Honours) Programme of the National Law School of India University for the year 2020‑21. The total intake shall be one hundred and twenty students. The Reservation Notification 2021 has been published separately on the website. All candidates must have secured an unconditional pass and the minimum percentage of marks in the qualifying examination (10+2 or its equivalent) as follows: aggregate percentage of forty‑five percent or its equivalent grade for General Category and Persons with Disabilities candidates; aggregate percentage of forty percent or its equivalent grade for Scheduled Caste or Scheduled Tribe candidates. There is no upper age limit to apply., The online application portal will open on 3 September 2020 and close at midnight on 10 September 2020. All applications must be submitted online at https://admissions.nls.ac.in/. Applicants must register using their personal mobile number; an OTP will be sent for validation. Once validated, the applicant may log in using the mobile number and password provided at registration. All names should be spelled exactly as they appear in certificates, mark sheets and identity proof; any alteration may disqualify the candidature. Candidates will be required to upload the following documents: a recent passport‑size photograph; a scanned copy of an original government‑issued photo ID (e.g., driver’s licence, Aadhaar card, voter ID, ration card, passport); scanned copies of the original marks statement and pass certificate of the standard ten examination; scanned copies of the original marks statement and pass certificate of the 10+2 or equivalent examination; scanned copy of the original caste, tribe or disability certificate where applicable; and documentary proof, including a letter from the head of institution and school certificates/report cards to prove schooling in Karnataka for ten years where applicable. All scanned documents must be clear and complete; unclear or illegible documents may lead to rejection. All documents will be subject to physical verification at the time of admission, and any discrepancy will result in automatic disqualification. If candidates are unable to produce documents listed in items four, five and six, they must provide them to University authorities at the time of admission, failing which the provisional offer of admission will be cancelled. After completing the application and uploading all necessary documents, candidates must save and submit the application, sign the declaration and submit the application. No alteration or editing of the online form can be done after successful final submission. An application fee of Rs 150 for General and Persons with Disabilities categories and Rs 125 for Scheduled Caste / Scheduled Tribe candidates must be paid. The last date for submission of applications and payment is 10 September 2020. There will be no offline application or submission of documents., Candidates will be selected on the basis of the aggregate marks secured in an online home‑based entrance examination known as the National Law Aptitude Test 2020 (NLAT 2020). The NLAT 2020 will test applicants for admission to the undergraduate Bachelor of Arts, Bachelor of Laws (Honours) and postgraduate Master of Laws programmes commencing in 2020 at the National Law School of India University, Bengaluru. Candidates who have submitted a valid application form will be required to appear for the NLAT on 12 September 2020. The test shall be an online entrance examination to be held at the candidate’s respective location using a computer device. Candidates must ensure that they can appear for the examination on the appropriate date and time using a computer device as per the detailed specifications that will be provided, including video and audio inputs. The University shall not be responsible for any connectivity issues or failure of internet connection during the examination and reserves the right to cancel any candidate’s examination based on misconduct or examination malpractice. Detailed instructions on the online examination process shall be provided to the candidates in due course., The NLAT 2020 will test candidates on five subjects: English Language, Current Affairs including General Knowledge, Legal Reasoning, Logical Reasoning and Quantitative Techniques. The test will comprise four General Comprehension passages, each accompanied by ten questions, for a total of forty questions. Each passage will be approximately five hundred words and of comparable difficulty to the mock CLAT 2020 papers. The ten questions for each passage will include two questions from each of the five subjects. The NLAT 2020 shall be conducted in English, with a maximum of eighty marks. All questions are multiple‑choice. The total duration of the examination is forty‑five minutes. Marking scheme: two marks for each correct answer, minus 0.25 marks for each unanswered question, and minus 0.50 marks for each wrong answer. The examination is not open book; candidates may not seek assistance from any other person or resource, electronic, print or otherwise. Candidates will have only one attempt at each question and cannot revisit a question once they have moved on., Following the examination and validation of the final answer key, a general merit list of all candidates will be prepared solely on the basis of their marks in the NLAT 2020. In case of equal marks, the tie‑break will be decided by (i) higher number of correct answers to Legal Reasoning questions, (ii) higher number of correct answers in the overall examination, and (iii) a computerized draw of lots. All candidates will be informed of their merit rank, aggregate marks and the aggregate mark of the last admitted candidate in their category by email or SMS. No consolidated merit list or admission list shall be published by the University., The University shall prepare a provisional admissions list on the basis of the NLAT merit list. Scheduled Caste, Scheduled Tribe, Persons with Disabilities and Karnataka students will be accommodated as per the Reservation Notification 2021 available on the website. Selected candidates will be offered provisional admission and intimated via email or SMS. To confirm their seat, selected candidates must accept the provisional offer by producing the necessary documents and paying the requisite fees. Detailed instructions on acceptance of offers will be provided by email or SMS and must be complied with strictly according to the timelines provided. In the event of any default by the candidate, the seat may be diverted to another candidate according to merit. The total annual fee (including refundable deposits) for incoming students is Rs 2,62,000 per annum for General Category and Persons with Disabilities, and Rs 2,58,875 per annum for Scheduled Caste / Scheduled Tribe candidates. The fees may be revised by the University, but any revision will be applied prospectively. The University is committed to ensuring that no student who secures admission discontinues studies on account of financial constraints; it will facilitate scholarships, educational loans and bursaries to enable students to secure their admissions. If a candidate withdraws admission on any ground, fees shall be refundable as per the applicable University Grants Commission rules., The University reserves the right to unilaterally alter, modify or cancel any component or stage of the selection process without prior notice. The University shall not be liable for any failure of communication, delivery of emails, internet or computer devices during any stage of the selection process. The decision of the University on any student’s eligibility, candidature, shortlisting and selection shall be final and not subject to any appeals or challenges. By submitting an application for admission, a student undertakes to abide by all conditions of the application process and to furnish accurate, correct and complete information and documents. Any subsequent discovery of malpractice, dishonesty or other irregularities will render the student ineligible for admission. No incomplete application will be considered. Any admission granted to such a student is subject to cancellation at any point at the discretion of the University. The University also reserves the right to not grant admission to a selected candidate if any reason justifying such a decision comes to its notice at any stage of the admission process.
id_82	0	ILA No. 12-2023 (Shahrukh Pathan Khan) CNR No. SH01-002176-2021 Police Station Jatrabad State Vs. Shahrukh Pathan Khan & Others. 14 December 2023. This order shall dispose of the application under Section 439 of the Code of Criminal Procedure of applicant/accused Shahrukh Pathan Khan for grant of regular bail in the present matter., Arguments were heard on behalf of both the applicant/accused and the prosecution. I have perused the entire record including judgments filed., Counsel for the applicant Shahrukh Pathan argued that the accused has been in judicial custody since 03 March 2020 and so far only two witnesses have been examined. It was further submitted that four charge‑sheets including three supplementary charge‑sheets have been filed in the present case and there are around 90 witnesses to be examined. It was argued that the bail application was dismissed by this Court and there was a direction for day‑to‑day trial, to which the learned counsel submitted that he has no objection but even the same could not happen. It was also argued that FIR No. 51/20 (Police Station Jatrabad) State vs. Shahrukh Pathan Khan & Ors. and the bail order passed by the Honorable High Court of Delhi were not complied with, and the accused never appeared before the Honorable High Court of Delhi., The prosecution contended that the accused was involved in multiple offences, including offences under the Arms Act, the Narcotic Drugs and Psychotropic Substances Act and sections 147, 148, 149 of the Indian Penal Code. The prosecution relied upon judgments of the Supreme Court of India and the Delhi High Court, and submitted that the accused was the main perpetrator of the rioting incident on 24 February 2020, brandishing a pistol and firing at the complainant and the public., Evidence disclosed includes CCTV footage, video recordings, mobile phone call detail records, the seized pistol, two live cartridges and the shirt worn by the accused at the time of the incident. The video footage shows the accused leading a mob of rioters, firing from his pistol and attempting to kill the complainant Deepak Dahiya. Public witnesses, including Sh. Saurabh Trivedi, SI Karan Singh and IIC Jitendra, have positively identified the accused in court. The forensic laboratory report confirms that the empty cartridges recovered from the scene match the pistol seized from the accused., The applicant has filed several bail applications. The first application for regular bail on medical grounds for the applicant’s father was dismissed as withdrawn by the Delhi High Court on 05 May 2020. The second application before the District and Sessions Court, Karkardooma, Delhi, was dismissed on 08 May 2020. The third application for interim‑cum‑regular bail was moved in the Delhi High Court and dismissed after hearing on merit. The fourth bail application before the Trial Court for interim bail was dismissed on 09 November 2020. The fifth bail application before the Trial Court for regular bail was dismissed on 04 February 2021. The sixth bail application before the Delhi High Court for regular bail was dismissed as withdrawn on 24 June 2020. All these applications were rejected on the basis of the seriousness of the offence, the risk of the accused tampering with evidence and the possibility of the accused absconding., The Court notes that the trial is in progress and the examination‑in‑chief of key public witnesses such as Sh. Saurabh Trivedi, SI Karan Singh and the complainant Deepak Dahiya is either partially completed or pending. Grant of bail would endanger the safety of these witnesses and may facilitate the accused in influencing or intimidating them. The Court also observes that the accused has a history of violent conduct, possession of illegal arms and ammunition, and has previously absconded. The presence of the accused in the courtroom during the trial has been recorded in video footage, confirming his active participation in the rioting., In view of the foregoing, the Court is not inclined to grant bail to the applicant/accused Shahrukh Pathan Khan. The bail application is dismissed.
id_82	1	In State vs. Shahrukh Pathan Khan Ors., it was found that the accused entered a cell without informing the Jail Authority, contrary to the rules, and was to be kept separately from other prisoners as a high‑risk violation of prison rules., It was stated that the video‑conferencing room of Tihar Jail was used and the footage was produced through video conferencing without counsel for the accused., The footage of 30.01.2023 shows the accused being badly beaten up and tortured by Asst. Superintendent Rajesh Dahiya., In State vs. Shahrukh Pathan Khan Ors., a punishment ticket was handed to the accused and recovered from his possession inside the jail, for which punishment was imposed. The aggressive and mala fide conduct of the accused, being a public servant and in charge, does not justify Asst. Superintendent Rajesh Dahiya slapping him, which appears to be an attempt to provoke the Asst. Superintendent and other officials., Another instance on 10.02.2023 was highlighted by the Jail Authority. CCTV footage shown by Law Officer Sh. Abhijit Shankaran in open court alleged that the accused Shahrukh Pathan, with another co‑inmate (Ward No. 8A, Cell 6), was found outside his ward, mingling with three other hardened prisoners, although he was supposed to be in the High Risk Ward. He was seen thrashing and beating a prisoner named Bunty, who later filed a complaint with the Jail Inspecting Judge that he and Shahrukh Pathan had been badly beaten, tortured and harassed by the Tihar Jail Superintendent., In all the footage shown, the accused Shahrukh Pathan Khan can be seen. Thus, the conduct of the accused Shahrukh Pathan Khan, as borne out from the footage played in the courtroom regarding the incidents of 30.01.2023 and 10.02.2023 and the recovery of the mobile phone, is completely unsatisfactory., Considering the conduct of the applicant/accused Shahrukh Pathan Khan in jail during his judicial custody, his conduct prior to his arrest, conduct during court proceedings, and most importantly, the State vs. Shahrukh Pathan Khan & Ors., it was only on production of this CCTV footage in the court that the said application was not pursued. Accordingly, the bail application under Section 439 of the Code of Criminal Procedure is considered, and the application is disposed of., A copy of this order shall be e‑mailed to the learned counsel for the applicant/accused, the learned Special Public Prosecutor, and the Special Commissioner of Police (Criminal), Delhi., Amitabh Rawat, Additional Sessions Judge‑03, dated 14.12.2023, Shahdara District, Karkardooma District Court. State vs. Shahrukh Pathan Khan & Ors. FIR No. 51/20 (PS). The court sees nothing to set him enlarged; the applicant/accused Shahrukh Pathan Khan stands dismissed.
id_820	0	Reserved on: 14.09.2020 Pronounced on: 25.09.2020 Through: Mister Rajiv Bansal, Senior Advocate with Mister Karan Suneja, Advocate versus Respondents Through: Mister Rajshekhar Rao, Mister Sanjay Vashishtha, Mister S.D. Sharma, Mister Anandh Venkataramani & Mister Areeb Amanullah, Advocates for R -2., Petitioner herein seeks quashing of the decision of the Chancellor, National Law University, Delhi (hereinafter referred to as NLUD) dated 25.06.2020 rejecting his representation for accepting his candidature for the post of Vice Chancellor of the University as well as quashing of the decision of the Selection Committee dated 05.02.2020 whereby it had shortlisted candidates for personal interaction for appointment to the post of Vice Chancellor to be held on 25.02.2020 and the decision recommending a panel. A mandamus is sought directing the Respondents to take steps to call the Petitioner for interview/interactive session for the said post., The narrative of facts as set out by the Petitioner is in a narrow compass and is encapsulated as under: Petitioner joined NLUD in 2009 as an Associate Professor and was promoted to the post of Professor on 01.07.2015. A Notification was issued on 11.10.2019 (hereinafter referred to as Notification) by the Convenor of the Selection Committee of NLUD inviting nominations for the post of Vice Chancellor, NLUD. The eligibility conditions mentioned in the Notification are as follows: Eligibility and Terms & Conditions: (As per the University Grants Commission Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 and National Law University Act 2007 (Delhi Act No. 1 of 2008) As Amended by Act 7 of 2009) Vice Chancellor to be a person possessing the highest level of competence, integrity, morals and institutional commitment is to be appointed as Vice Chancellor. The person to be appointed as a Vice Chancellor should be a distinguished academician, with a minimum of ten years of experience as Professor in a University or ten years of experience in a reputed research and/or academic administrative organization with proof of having demonstrated leadership. Vice Chancellor to be an academic person and outstanding scholar in law or relevant subject or an eminent jurist. He shall be a whole time salaried officer of the University. The Vice Chancellor shall hold office for a term of five years or such less period as the Governing Council may decide, from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier, and he shall be eligible for reappointment for further term till he attains the age of seventy years. Petitioner applied for the post of Vice Chancellor within the prescribed time via e‑mail dated 11.11.2019 along with the requisite documents. Petitioner avers that he came to know that the Selection Committee was conducting a meeting on 05.02.2020 for the purpose of shortlisting candidates for interaction on 25.02.2020. Petitioner avers that being a distinguished academician, a scholar in law and an eminent jurist, having more than ten years of experience in a reputed research or academic administrative organization with proof of having demonstrated academic leadership, which he mentioned in the Application Form, hoped and aspired that he shall be called for the interaction, being eligible for the post. According to the Petitioner despite fulfilling the essential eligibility conditions, he did not receive any communication for personal interaction with the Selection Committee nor was any intimations received furnishing the reasons for excluding him from interaction and rejecting his candidature. Petitioner avers that feeling aggrieved by this exclusion, which violated his fundamental right under Article 14 of the Constitution of India, he made a representation dated 03.06.2020 to the Chancellor, NLUD to provide the Petitioner a fair opportunity for interaction with the Selection Committee. When the representation of the Petitioner was not responded to, he filed a petition in the Supreme Court of India being W.P.(C) 3661/2020, challenging what according to him was an arbitrary and discriminatory action of the Selection Committee. The said petition was disposed of by the Supreme Court of India via order dated 26.02.2020, directing the Registrar, NLUD to place the representation of the Petitioner before the Chancellor, NLUD for consideration. Representation of the Petitioner was decided by the Chancellor via order dated 25.06.2020 whereby candidature of the Petitioner was rejected. It is this decision that has been assailed by the Petitioner in the present petition along with the decision dated 05.02.2020 shortlisting the candidates and 25.02.2020 whereby the Selection Committee recommended a panel., Learned Senior Counsel for the Petitioner as a Preface to the arguments has highlighted the qualifications, publications and other achievements of the Petitioner. He submits that the Petitioner is a Professor teaching various subjects such as Law and Language, Law and Literature, Law and Communication, Law and Poetry, Law and Culture, Linguistic Justice and Endangered Languages and so on in NLUD. He has been active in publishing, speaking on and promoting interdisciplinary areas of law, both in India and abroad. Attention is drawn to a lengthy but non exhaustive list of the various books and publications of the Petitioner, succinctly brought out in the writ petition., It is submitted that the Petitioner joined NLUD in 2009 as an Associate Professor. He was promoted as Professor on 01.07.2015 and has been teaching in the Institution till date. His academic credentials include degrees such as LL.B, M.A (Linguistics), M.A (General Linguistics), M.A (English), M.Sc., M.Phil and Ph.D. Petitioner is the Director, Centre for Linguistic Justice and Endangered Languages; Project Coordinator of Study and Research towards Preservation and Promotion of Indigenous and Endangered Languages and a Member of the Publication Committee of the Linguistic Society of India. Petitioner has taught on various themes and subjects in Law, Language, Poetry and Culture, both in India and abroad. The argument is that the academic profile of the Petitioner shows that he has enriched himself in the field of Law at the highest academic level, with an interdisciplinary approach and he is thus a Distinguished Academician and an Eminent Jurist as well as Scholar in Law., It is next contended that the Respondents are bound by the University Grants Commission Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and have to follow the provisions therein for selecting the Vice Chancellor. Relevant University Grants Commission Regulation, relied upon by the Petitioner, governing the selection of Vice Chancellor of the Universities is as under: A person possessing the highest level of competence, integrity, morals and institutional commitment is to be appointed as Vice Chancellor. The person to be appointed as a Vice Chancellor should be distinguished academician, with a minimum of ten years of experience as Professor in a University or ten years of experience in a reputed research and/or academic administrative organisation with proof of having demonstrated academic leadership. The selection for the post of Vice Chancellor should be through proper identification by a Panel of three to five persons by a Search‑cum‑Selection‑Committee, through a public notification or nomination or a talent search process or a combination thereof. The members of such Search‑cum‑Selection Committee shall be persons of eminence in the sphere of higher education and shall not be connected in any manner with the University concerned or its colleges. While preparing the panel, the Search‑cum‑Selection Committee shall give proper weightage to the academic excellence, exposure to the higher education system in the country and abroad, and adequate experience in academic and administrative governance, to be given in writing along with the panel to be submitted to the Visitor/Chancellor. One member of the Search‑cum‑Selection Committee shall be nominated by the Chairman, University Grants Commission, for selection of Vice Chancellors of State, Private and Deemed to be Universities. The Visitor/Chancellor shall appoint the Vice Chancellor out of the Panel of names recommended by the Search‑cum‑Selection Committee. The term of office of the Vice Chancellor shall form part of the service period of the incumbent making him/her eligible for all service related benefits., It is submitted that the Petitioner fulfills the minimum eligibility criteria under the said Regulations, the NLUD Act and the Notification. Petitioner is a distinguished academician, teaching for the past around seventeen years and having more than ten years of experience in NLUD itself teaching Law and Language, Law and Poetry, Law and Literature and so on. Petitioner is a Scholar in law which is allegedly a prerequisite mentioned in the Notification and this is reflected from his articles and publications, both domestic and international as well as his academic standing, internationally as well as the accolades mentioned extensively in the petition. Petitioner is also an eminent jurist. The word Jurist is a word of lexical ambiguity and has not been defined either in the National Law University Delhi Act, 2007 or the University Grants Commission Regulations (hereinafter referred to as Act & Regulations). Without prejudice to the above argument, it is not, according to the Petitioner, mandatory that an eminent jurist applying for the post of Vice Chancellor must be a scholar in law, in view of the subjects being taught and the interdisciplinary thrust of modern academic thinking. It cannot be assumed that only a professor of law is entitled to be a Vice Chancellor as the term eminent jurist includes not only a legal jurist but a person who contributes new dimensions to legal thinking. As per the Petitioner, he has been adding new areas of research scholarship and thinking in the field of law as well as in various areas related to law such as culture, language and poetry., The argument is that it is nowhere prescribed in the Notification or the Act & Regulations that a candidate applying for the post of Vice Chancellor should necessarily be a Professor of law with minimum ten years of experience. As an example, learned Senior Counsel cites the case of Prof. V.S. Elizabeth, the fourth Vice Chancellor of Tamil Nadu National Law University, who had a background in History. It is elaborated that had the intention of the Legislature been to use the term Professor of Law then it would have been expressly so provided in the Act & Regulations. However, the phraseology used is Scholar in Law which is a term broader than Professor of Law and therefore, there is no reason why a narrower interpretation should be adopted when the Legislature thought it appropriate otherwise, and oust the Petitioner on this frivolous ground., Learned Senior Counsel for the Petitioner draws the attention of the Supreme Court of India to the order dated 25.06.2020 passed by the Chancellor rejecting the representation of the Petitioner. He submits that representation has been rejected observing that the Committee has taken a decision based on its subjective satisfaction and argues that a Selection Committee cannot base its decision on a subjective satisfaction as the decision must be objective. It is argued that the eligibility of a candidate could only be decided by an objective test as a subjective satisfaction will lead to a dangerous situation whereby arbitrariness, biasness and malice may seep in. Reliance is placed on the decision in S.K. Gupta v. Union of India & Ors., AIR 1977 Delhi 209, for controverting the reason assigned by the Competent Authority while rejecting the representation. Reliance is also placed on the definitions of the terms subjective and objective in Black's Law Dictionary and P. Ramanatha Aiyar's Law Dictionary., Learned Senior Counsel further relies on Section 20(6) of the National Law University Delhi Act which is as follows: 20. The Vice Chancellor: (1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) xxx xxx xxx (5) xxx xxx xxx (6) If the office of the Vice Chancellor becomes vacant due to death, resignation or otherwise or if he is unable to perform his duties due to ill health or any other cause, the Chancellor shall have the authority to designate a professor of the University to perform the functions of the Vice Chancellor until the new Vice Chancellor assumes his office or until the existing Vice Chancellor attends to the duties of his office, as the case may be., The argument is that in view of the said provision a designated Professor and not just a Professor of Law of the University can be an acting Vice Chancellor and therefore, there is no reason why Section 20(1) should not be read in light of Section 20(6) to make eligible any designated Professor for appointment as Vice Chancellor and not restrict the field only to a Professor of Law. Thus, the Petitioner being a Professor in the University having more than ten years of diverse, interdisciplinary and multidisciplinary teaching experience and being an eminent jurist should be called for an interaction to make the spectrum of selection broad‑based and competitive., Per contra, learned Counsel for the Respondent No.2/NLUD argues that the relief sought by the Petitioner that he should be called for an interaction pursuant to his application for the post of Vice Chancellor, NLUD, cannot be sought as a matter of right. As per the Petitioner, candidates who fulfilled the prerequisite qualifications under the Notification were required to be called for an interactive meeting and thus being eligible he could not be excluded. This, according to the Counsel for Respondent, is no more than a self‑serving statement of the Petitioner, who has no right to be called for an interaction, being ineligible. Even otherwise, Petitioner has been unable to point out any provision either in the NLUD Act or University Grants Commission Regulation or even the Notification which mandates calling every candidate who applies for the post for an interaction. On the contrary, the procedure for appointment of the Vice Chancellor, stipulated in the National Law University Delhi Act, 2007, has no provision making it obligatory for the Selection Committee to call all applicants for interaction., It is argued that the Petitioner's challenge to the Chancellor's order dated 25.06.2020 is also premised on the misplaced notion that the Petitioner meets the eligibility criteria and interaction with all applicants is mandatory. Learned counsel defending the order submits that the order is a speaking order, based on record and consistent with the NLUD Act. Dealing with the grievance in the representation, the Chancellor has correctly observed that as per the procedure laid down under Section 20 of the NLUD Act, there is no duty vested in the Selection Committee to call each and every candidate for interaction. The argument of the Petitioner that the Chancellor ought to have determined or commented on the Petitioner's eligibility is also erroneous and beyond the scope of the representation itself, as well as the provisions of the NLUD Act. As per Section 20, the Chancellor is only to select a Vice Chancellor from amongst the panel of candidates recommended by the Selection Committee. Selection Committee has undertaken the task of shortlisting candidates from the eligible candidates and drawing up a panel for final selection by the Chancellor. As stipulated in the Proviso to Section 20(2), it is also open to the Chancellor to call for fresh recommendations, if he does not approve of any of the persons so recommended. The observation in the order that the panel has been prepared on the subjective satisfaction of the Committee cannot be faulted with in view of Supreme Court of India's consistent judgments that it is for the Committee comprising of experts to decide who is best suited to be selected and the Court cannot sit as an appellate authority and interfere in the said satisfaction., It is argued that, pertinently, Petitioner has neither challenged the Notification nor any provision of the NLUD Act and thus cannot, at this stage, challenge the process of selection, which has been conducted strictly in terms of the statutory provisions. It is also argued that there is no allegation of bias or malice against the members of the Selection Committee and it is settled law that in the absence of any such allegations it is not open for the Supreme Court of India, in judicial review, to interfere with the considered decision of Selection Committee. Supreme Court of India has consistently held that where the jurisdiction to make selection is vested in a Selection Committee comprising of expert members, Courts have to trust their assessment unless it is actuated with malice or mala fide or arbitrariness or there are violations of statutory rules. In the present case, the Selection Committee comprised of persons of high integrity, holding high offices and had the necessary expertise for shortlisting eligible candidates and preparing a panel for consideration of the Chancellor. Merely because the Petitioner has not been shortlisted by the Selection Committee does not imply that the decision is arbitrary or flouts any statutory provision., It is vehemently argued that the Petitioner cannot question the decision of the Committee and insist on being called for the interaction as he is ineligible for the post of Vice Chancellor. Section 20(1) requires that the Vice Chancellor has to be an academic person and an outstanding scholar in law or an eminent jurist. Relevant provision of the NLUD Act relied upon by the counsel for Respondent is as follows: 20. The Vice Chancellor: (1) The Vice Chancellor shall be an academic person and an outstanding scholar in law or an eminent jurist. He shall be a whole time salaried officer of the University., It is argued that the requirement in the Notification is in sync with the nature of the post as NLUD Act sets up a Law School and not a general University. Black's Law Dictionary is relied upon to argue that an eminent jurist is a legal scholar who is versed or skilled in law; the term is commonly applied to those who have distinguished themselves by their writings on legal subjects or to Judges. Petitioner does not fit into these descriptions and is clearly ineligible in terms of the NLUD Act. It is emphasized that the Petitioner does not teach law subjects and only heads the Centre for Linguistic Justice and Endangered Languages. It is an admitted case of the Petitioner that he teaches English Language and Linguistics at NLUD and has only four years of experience as a Professor. Besides, there is hardly any doubt that his work has been on the intersection of Law and Language and thus it cannot be said that he is a Professor in the core study of law and its principles., Petitioner does not qualify, according to the Respondent, under the Notification as he is not a Professor with ten years experience, which is clearly the prerequisite of eligibility, as stipulated therein. Petitioner also does not qualify in the second and the alternate category of ten years experience in a reputed research and/or academic administrative organization with proof of demonstrated academic leadership as the Notification has to be read in consonance with the NLUD Act, which mandates scholarship in Law. Petitioner clearly does not have any demonstrated academic leadership in law for ten years and the application of the Petitioner lists out routine administrative tasks and publications on the intersection of Law and Language., Last but not the least, it is argued that the petition suffers from delay and laches. Petitioner seeks quashing of the decisions of the Selection Committee dated 05.02.2020 and 25.02.2020, apart from the decision dated 25.06.2020 rejecting his Representation. Petition has been filed clearly after a delay of six months from the former and three months from the latter. It is also argued that when the decision to shortlist candidates for the interaction was taken, it was not questioned or challenged by the Petitioner and he waited for the Committee to recommend a panel and thereafter raised a grievance, months later. Thus the relief sought is even otherwise infructuous and Petitioner cannot be called for interaction at this stage., I have heard the learned Senior Counsel for the Petitioner and the learned counsel for the Respondent., The fulcrum and heart of the dispute before the Supreme Court of India lies in the eligibility of the Petitioner for consideration to the post of Vice Chancellor, NLUD and legality of the action of the Selection Committee in not calling the Petitioner for the interaction. The conundrum that the Court is called upon to resolve is the right of a candidate to be called for an interview vis‑vis the discretion and prerogative of a Selection Committee to draw a list of candidates for the purpose of interview in a selection process. Before proceeding to decide the issues raised, in my view, it is uncontrovertibly comprehensible to look at the fundamental principles on the scope of judicial review to interfere in a matter related to a selection process, undertaken by a duly constituted Selection Committee, having expertise to do so., It is a settled law that the scope of judicial review of Courts and/or Tribunals in matters of selection is extremely limited. Courts have repeatedly affirmed that recommendations of Selection Committees cannot be challenged except on grounds of malafides or violations of statutory rules. Court cannot sit as an Appellate Authority to examine the recommendations or findings of a Selection Committee. Supreme Court of India has observed in several judgments that the discretion to select is that of a Selection Committee only and it is not the business of the Court to examine its recommendations for evaluating and substituting its opinion for that of the Committee. Selection Committees are carefully constituted and are manned by experts in the field and their assessments have to be invariably respected and trusted unless they are actuated and bristle with malice or arbitrariness. While there are plethora of judgments enunciating the said proposition but to avoid prolixity and not burden the judgment, I may only refer to a few., In University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491, the Court was dealing with selection of candidates by a Board of Experts appointed by the University for the post of Reader, an academic post. Negating the challenge to the recommendations of the Board, the Supreme Court of India held as under: Boards of Appointments are nominated by the universities and when recommendations made by them and the appointments following on them, are challenged before courts, normally the courts should be slow to interfere with the opinions expressed by the experts. There is no allegation about mala fides against the experts who constituted the present Board; and so, we think, it would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be. The criticism made by the High Court against the report made by the Board seems to suggest that the High Court thought that the Board was in the position of an executive authority, issuing an executive fiat, or was acting like a quasi‑judicial tribunal, deciding disputes referred to it for its decision. In dealing with complaints made by citizens in regard to appointments made by academic bodies, like the universities, such an approach would not be reasonable or appropriate. In fact, in issuing the writ, the High Court has made certain observations which show that the High Court applied tests which would legitimately be applied in the case of writs of certiorari. In the judgment, it has been observed that the error in this case is undoubtedly a manifest error. That is a consideration which is more germane and relevant in a procedure for a writ of certiorari. What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should have shown due regard to the opinion expressed by the Board and its recommendations on which the Chancellor has acted. In this connection, the High Court has failed to notice one significant fact that when the Board considered the claims of the respective applicants, it examined them very carefully and actually came to the conclusion that none of them deserved to be appointed a Professor. These recommendations made by the Board clearly show that they considered the relevant factors carefully and ultimately came to the conclusion that Appellant 2 should be recommended for the post of Reader. Therefore, we are satisfied that the criticism made by the High Court against the Board and its deliberations is not justified., Supreme Court of India in M.V. Thimmaiah v. UPSC, (2008) 2 SCC 119 held as under: Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion. We fail to understand how the Tribunal can sit as an Appellate Authority to call for the personal records and constitute Selection Committee to undertake this exercise. This power is not given to the Tribunal and it should be clearly understood that the assessment of the Selection Committee is not subject to appeal either before the Tribunal or by the courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the overall view of ACRs of the candidates, one may be held to be very good and another may be held to be good. If this type of interference is permitted then it would virtually amount that the Tribunals and the High Courts have started sitting as Selection Committee or act as an Appellate Authority over the selection. It is not their domain, it should be clearly understood, as has been clearly held by this Court in a number of decisions. Our attention was invited to a decision of this Court in R.S. Dass [1986 Supp SCC 617 : (1987) 2 ATC 628] wherein at paragraph 28 it was held as follows: It is true that where merit is the sole basis of promotion, the power of selection becomes wide and liable to be abused with less difficulty. But that does not justify presumption regarding arbitrary exercise of power. The machinery designed for preparation of select list under the regulations for promotion to all‑India service, ensures objective and impartial selection. The Selection Committee is constituted by high‑ranking responsible officers presided over by Chairman or a member of the Union Public Service Commission. There is no reason to hold that they would not act in fair and impartial manner in making selection. The recommendations of the Selection Committee are scrutinised by the State Government and if it finds any discrimination in the selection it has power to refer the matter to the Commission with its recommendations. The Commission is under a legal obligation to consider the views expressed by the State Government along with the records of officers, before approving the select list. The Selection Committee and the Commission both include persons having requisite knowledge, experience and expertise to assess the service records and ability to adjudge the suitability of officers. In this view we find no good reasons to hold that in the absence of reasons the selection would be made arbitrarily. Where power is vested in high authority there is a presumption that the same would be exercised in a reasonable manner and if the selection is made on extraneous considerations, in arbitrary manner the courts have ample power to strike down the same and that is an adequate safeguard against the arbitrary exercise of power.
id_820	1	How to categorise in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee. This function had to be discharged by the Selection Committee by applying the same norm and tests and the selection was also to be made by the Selection Committee as per the relevant rules. The powers to make selection were vested in the Selection Committee under the relevant rules and the Tribunal could not have played the role which the Selection Committee had to play by making conjectures and surmises. The proper order for the Tribunal to pass under the circumstances was to direct the Selection Committee to reconsider the merits of the respondent vis‑vis the official who was junior to him. The jurisdiction of the Supreme Court of India under Article 136 in this respect is, however, wider and cannot be equated with that of the Tribunal., Our attention was invited to a decision of the Supreme Court of India in Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan [(1990) 1 Supreme Court Cases 309‑310, para 12] where it was observed that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinise the relative merits of the candidates. Whether a candidate is fit for a particular post has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. In the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. By sitting in appeal over the selection so made and setting it aside on the ground of the so‑called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction., Similarly, in National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman [(1992) 2 Supreme Court Cases 481, 959, 21 All India Reporter 680] the Supreme Court of India held that the expert committee's finding should not be lightly interfered with. The function of the Selection Committee is neither judicial nor adjudicatory; it is purely administrative. Where selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility and there is no rule or regulation requiring the Selection Committee to record reasons, the Selection Committee is under no legal obligation to record reasons in support of its decision of selecting one candidate in preference to another. Even the principles of natural justice do not require an administrative authority or a Selection Committee to record reasons for the selection or non‑selection of a person in the absence of a statutory requirement., Our attention was invited to a decision of the Supreme Court of India in P.M. Bayas v. Union of India [(1993) 3 Supreme Court Cases 319, 769, 24 All India Reporter 846]. In that case, with regard to the IAS (Recruitment) Rules, 1954, which contemplated that special cases and special circumstances could justify the selection of incumbents, the Court held that the State Government must be satisfied regarding the existence of special circumstances. The Tribunal was not justified in holding that there was no material on the record to show the existence of special circumstances and was wholly unjustified in asking the Central Government to show the existence of special circumstances in terms of Rule 8(2) of the Rules., In UPSC v. M. Sathiyapriya [(2018) 15 Supreme Court Cases 796] the Supreme Court of India set aside the exercise undertaken by the Tribunal and the High Court to reassess the recommendations of a Selection Committee constituted by the Union Public Service Commission for appointment by promotion to the Indian Police Service. The Court observed that the Selection Committee consists of experts in the field, is presided over by the Chairman or a Member of the Union Public Service Commission and is duly represented by officers of the Central Government and the State Government who have expertise in the matter. It is not open to the Central Administrative Tribunal or the High Court to sit over the assessment made by the Selection Committee as an appellate authority. The question of how categories are assessed in light of the relevant records and what norms apply in making the assessment is exclusively to be determined by the Selection Committee. Since the jurisdiction to make selection as per law is vested in the Selection Committee and its members have expertise, courts may interfere only where the process of assessment is vitiated by bias, mala fides or arbitrariness., The Court further noted that while the expert body's opinion may not deserve acceptance in all circumstances, it is not proper to say that the expert body's opinion is never subject to judicial review. In the constitutional scheme, the decision of the Selection Committee or Board of Appointment cannot be said to be final and absolute. Any other view would have a dangerous consequence. The Supreme Court reminded that the Selection Committee, as an expert body, had carefully examined the experience, Annual Confidential Reports and other relevant factors before selecting the eligible candidates for the Indian Police Service. The settled legal position is that courts must show deference to the recommendations of an expert committee consisting of members with expertise, unless malice or arbitrariness in the committee's decision is established. The doctrine of fairness in administrative law does not convert tribunals and courts into appellate authorities over the decision of experts., The Supreme Court of India has repeatedly observed that the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of statutory rules. Courts cannot sit as an appellate authority or umpire to examine the recommendations of the Selection Committee like a court of appeal. This discretion is given to the Selection Committee only, and the courts rarely sit as a court of appeal to examine the selection of a candidate; nor is it the business of the court to examine each candidate and record its opinion. Since the Selection Committee constituted by the Union Public Service Commission is manned by experts in the field, their assessment must be trusted unless it is actuated with malice or bristling with mala fides or arbitrariness., Significantly, the Supreme Court of India upheld the recommendations of the Selection Committee which had evolved its own classification, at variance with the grading given by the State Government, relying on the earlier judgment in UPSC v. K. Rajiah [(2005) 10 Supreme Court Cases 15] where the Court held that the power to classify a candidate as outstanding, good, unfit etc. is vested with the Selection Committee and is incidental to the selection process. In the absence of allegations of malice or bias against the members of the Selection Committee, the Court could not reassess its recommendations as a Court of Appeal since the Selection Committee is constituted and manned by experts in the field., In Lila Dhar v. State of Rajasthan [(1981) 4 Supreme Court Cases 159] the Supreme Court of India observed that in services where selection must combine academic ability with personality, some weight must be given to the interview but there is no thumb rule on the weightage. The weight must vary from service to service according to the requirements of the service, the minimum qualifications prescribed, the age group, the body entrusted with the interview and other factors. It is a matter for determination by experts and research, not for courts unless exaggerated weight is given with proven oblique motives. The Kothari Committee suggested that the subject may be examined in detail by the Research Unit of the Union Public Service Commission., In Mehmood Alam Tariq and Others v. State of Rajasthan [(1988) 3 Supreme Court Cases 241] the Supreme Court succinctly reiterated the ratio laid down in Lila Dhar, stating that matters reflecting policy require judicial restraint and have little adjudicative disposition., In Secretary (Health) Department of Health & Family Welfare v. Anita Puri [(1996) 6 Supreme Court Cases 282] the Supreme Court of India held that when a selection is made by an expert body like the Public Service Commission, which is advised by experts having technical experience and high academic qualification, courts should be slow to interfere with the opinion expressed by experts unless allegations of mala fide are made and established. It would be prudent for courts to leave decisions on such matters to the experts who are more familiar with the problems they face than the courts. If the expert body considers suitability of a candidate after giving due consideration to all relevant factors, the court should not ordinarily interfere., In The Chancellor v. Bijayananda Kar [(1994) 1 Supreme Court Cases 169] the Supreme Court observed that decisions of academic authorities should not ordinarily be interfered with by courts. Whether a candidate fulfills the requisite qualifications is a matter to be decided by the academic bodies and the concerned selection committees which invariably consist of experts on the subjects relevant to the selection. The Court noted that the Chancellor must have examined the eligibility of Dr. Mohapatra before rejecting the representation of Dr. Kar., From a reading of the law as enunciated by the Supreme Court of India, the inexorable conclusion is that it is not within the domain of the courts, sitting in judicial review, to enter into the merits of a selection process, a task which is the prerogative of and in the expert domain of a Selection Committee, subject to the caveat that proven allegations of mala fides or violation of statutory rules may invite intervention. It is not the decision but only the decision‑making process which is open to judicial scrutiny., The law so enunciated equally applies to the threshold stage of shortlisting candidates for interview or interaction. Shortlisting on the basis of eligibility and other objective criteria requires expertise and, once undertaken by the Selection Committee, the principle of judicial restraint must be applied., The constitution of the Search‑cum‑Selection Committee is envisaged both under the University Grants Commission Regulations and the National Law University Delhi Act, 2007. Regulation 7.3(ii) of the UGC Regulations stipulates that the members of the Search‑cum‑Selection Committee shall be persons of eminence in the sphere of higher education. The procedure for selection to the post of Vice‑Chancellor envisages preparing a panel of three to five persons by public notification, nomination, talent search or a combination thereof. While preparing the panel, the Committee shall give proper weightage to a candidate’s academic excellence, exposure to higher education in the country and abroad, and adequate experience in academic and administrative governance. The recommendations are then sent to the Visitor/Chancellor for appointment of the Vice‑Chancellor from among the panel. Sections 20(2) and 20(3) of the National Law University Delhi Act, 2007 prescribe that the Vice‑Chancellor shall be appointed by the Chancellor on the recommendations of the governing Council from a panel of not less than three persons recommended by a Selection Committee, and that the Selection Committee shall consist of three members – one nominated by the Executive Council, one by the Chairman of the University Grants Commission and one by the Chancellor from among retired or serving Judges of the High Court of Delhi, with the Chancellor’s nominee acting as Convenor. No employee of the University shall be nominated as a member of the Selection Committee., It is pertinent to mention that the learned counsel for Respondent No.2 accentuated the constitution of the Selection Committee in the present case, comprising persons of high integrity, having held high offices and possessing the necessary expertise for shortlisting and recommending a panel for the post of Vice‑Chancellor, National Law University Delhi. The Committee, after perusing the provisions of law, the requirements of the post and the minimum eligibility under the notification dated 11‑10‑2019, the UGC Regulations and the relevant provisions of the NLU Delhi Act, short‑listed candidates for interview/interaction and finally recommended a panel for the Chancellor to make appointment in accordance with Section 20 of the Act. There is no allegation of mala fides or bias against any member of the Selection Committee, nor any challenge to any rule or regulation. The petitioner’s grievance is limited to not being invited for the interactive session. The representation was made by the petitioner nearly four months after the interaction process was concluded. The contentions must be examined in the background of the facts and the judgments cited above, keeping in mind that there is no allegation of bias or mala fides against any member of the Selection Committee., The principal contention of the petitioner is that, being eligible for the post of Vice‑Chancellor, he had a right to be called for an interview/interaction and therefore the selection process is vitiated. The first question is whether the law mandates that all candidates who apply for the post must be called for interaction, and the second question is whether the petitioner was eligible to lay a challenge to the selection process., In my view, the answer to the first question is negative. An applicant who applies for appointment does not have a vested right, let alone a fundamental right, to be called for an interview/interaction. The learned senior counsel for the petitioner has neither asserted nor established any provision in the Act or Regulations that obliges the Committee to call every applicant for an interview. Courts have repeatedly observed that the right to apply for a post and the right to be considered for a post cannot be extended to a right to be called for interview. In any selection by interview, not all applicants may be interviewed and a conscious decision by the Committee to shortlist and not call a few does not amount to non‑consideration of those applications if the elimination is by due process. Thus, settled law does not vest a right to be called for interview even when a candidate fulfills the eligibility criteria., In this context, I may refer to the judgment of the Division Bench of the Karnataka High Court in Ramanagouda Hanumantha Patil v. High Court of Karnataka, 1996 SCC Online Kar 136. The petitioners had applied for the post of District Judge under a notification issued by the High Court under Article 233 of the Constitution of India read with the Karnataka Judicial Services (Recruitment) Rules, 1983. They claimed that having fulfilled the eligibility criteria, they ought to have been called for interview. The Court held that while every eligible person is entitled to apply for and be considered for selection, there is no obligation to call for interview all candidates who satisfy the minimum eligibility requirement. Where the number of applicants is high, unless a statute or rule specifically provides otherwise, the number of candidates to be called for interview must be in reasonable proportion to the vacancies. The process of shortlisting is a matter to be settled by the Selection Committee, which may evolve any rational and reasonable method to reduce the number of candidates to a manageable limit. The criteria for shortlisting should be rational, reasonable, non‑arbitrary and non‑discriminatory. The right to apply for a post and the right to be considered for a post cannot be extended to a right to be called for interview., The High Court further observed that there is no obligation to call for interview all candidates who satisfy the minimum eligibility requirement. Where there are a large number of candidates eligible for a few posts, a process of elimination to shortlist candidates for interview is permissible and necessary to avoid waste of public time and to ensure effective interviewing. The shortlisting procedure may be devised by the Selection Committee after ascertaining the total number of applications received. The criteria adopted for shortlisting must be rational, reasonable, have a clear nexus with the object sought to be achieved and must be non‑arbitrary and non‑discriminatory. The provision that selection will be by interview does not require that all applicants be interviewed; failure to call a candidate for interview does not amount to non‑consideration of his application if he has been eliminated by due process., In the Division Bench judgment of the Punjab and Haryana High Court in Subhash Chander Sharma v. State of Haryana, 1983 SCC Online P&H 795, the Court considered the large number of candidates called for interview and the provisions of Rule 9(1) of the Punjab Civil Service (Executive Branch) Rules, 1930, which required a candidate to obtain at least 45% marks in the written examination to be eligible for viva voce. The Court held that the Rules did not compel the authority to interview all candidates who crossed the minimum threshold and that the Selection Committee could, in its wisdom and discretion, adopt a method of shortlisting that is subject to statutory provisions, if any. The Committee may classify applicants according to qualifications and experience and call for interview only those who fall within the selected categories, without this classification amounting to hostile discrimination.
id_820	2	On a plain reading of this provision in the larger context of the rules for the holding of the examination, it seems to follow that this is merely with regard to the minimum marks in the written test which would render the candidate eligible for interview. It cannot possibly be misread to mean that all candidates who obtain 45 per cent marks acquire any indefeasible right to be called for interview. The aforesaid regulation 3, as is manifest, is couched in negative terms and fixes the floor level below which the candidates stand debarred and cannot be called for interview even if the Commission was inclined to do so. However, the converse thereof is certainly not true. The impossible construction that every candidate obtaining 45 per cent marks has an indefeasible right to appear in the viva voce can only lead to disastrous results. One can visualise that in an examination of this kind, even for ten to fifteen vacancies, as many as five thousand persons may qualify by obtaining 45 per cent marks in the written examination. Are all of them to be necessarily called for the viva voce test? We certainly do not think so. Consequently, the respondents somewhat ambivalent stand that the rules required the interview of all the 1,300 candidates must be rejected out of hand., We are of the view that it is well-settled that unless the statutory provisions specifically provide otherwise the number of candidates to be called for interview has necessarily to be in a reasonable proportion to the number of vacancies to be filled in. Herein, as held already, there was no statutory requirement to call every candidate acquiring pass marks., In the light of this position of law, there is no force in the contention of learned Senior Counsel for the petitioner that the petitioner has a vested right to be called for a personal interaction by the Selection Committee. The Committee shortlisted candidates on the basis of their respective profiles and eligibility criteria under the provisions of the Notification and the Act and Regulations, as argued by Respondent No.2. The petitioner was not shortlisted as, according to the learned counsel, he was found ineligible for the post. The assessment was purely in the domain of the Committee and this Supreme Court of India cannot substitute its wisdom and interfere in the considered decision. Additionally, the Supreme Court of India has no reason to question or doubt the assessment of the Committee in the absence of any allegations of malice. Even otherwise, assuming for the sake of argument that the petitioner was eligible in all respects, there is no provision in the Act and Regulations or the Notification mandating the Committee to call all applicants for the interaction and thus in view of the settled law no fault or infirmity can be found with the decision in not inviting the petitioner for interaction., A somewhat similar situation had arisen before a coordinate bench of this Supreme Court of India in the case of Puneet Sharma versus Union of India, 2019 Supreme Court Cases Online Delhi 8629, where the petitioners had challenged the process of selection to the post of member of Income Tax Appellate Tribunal. The Search-cum-Selection Committee resolved to call for interview twenty-four most experienced applicants and decided to hold an interview of the shortlisted candidates. The contention of the petitioners was that the procedure of shortlisting for the interview was arbitrary and violative of Article 14 of the Constitution of India. No communication was received by the applicants with regard to any benchmark or criteria for initial scrutiny to prepare the shortlist for the interviews., The Supreme Court of India, relying on the judgment of the Supreme Court of India in Madhya Pradesh Public Service Commission versus Navnit Kumar Potdar, (1994) 6 Supreme Court Cases 293, dismissed the petition after observing that it is open to the Selection Committee to shortlist applicants on a rational and reasonable basis and the decision cannot be held to be arbitrary. The relevant paragraph relied upon from the judgment in the case of Madhya Pradesh Public Service Commission is as follows: Once the applications are received and the Selection Board or the Commission applies its mind to evolve any rational and reasonable basis, on which the list of applicants should be shortlisted, the process of selection commences. If with five years of experience an applicant is eligible, then no fault can be found with the Commission if the applicants having completed seven and a half years of practice are only called for interview because such applicants having longer period of practice shall be presumed to have better experience., Reliance was also placed by the Supreme Court of India for the same proposition on Union of India versus T. Sundararaman, (1997) 4 Supreme Court Cases 664 and Arun Tewari versus Zila Mansavi Shikshak Sangh, (1998) 2 Supreme Court Cases 332., The next contention of the petitioner is that no reasons were communicated to the petitioner for not calling him for interaction and even the order rejecting his representation is devoid of reasoning to exclude the petitioner, despite being eligible for the post. While the learned Senior Counsel for the petitioner was emphatic in his argument, he was unable to point out any rule or regulation or judgment requiring the Selection Committee to communicate or even record any reason., It is no longer res integra that while selecting a candidate, the Selection Committee is not required to record reasons for preferring one candidate to the other or non-selection of a candidate and much less while shortlisting for interaction and thus the action of the Committee cannot be faulted with. This being the position of law, the petitioner can hardly have a grievance with the non-communication of the reasons. Learned Senior Counsel has pitched the argument on a high pedestal of violation of Article 14 of the Constitution of India and principles of natural justice, but it would suffice to quote passages from a few judgments by the Supreme Court of India in this context. In B.C. Mylarappa versus Dr. R. Venkatasubbaiah, (2008) 14 Supreme Court Cases 306, the Supreme Court of India observed as follows: It is not in dispute that there is no rule or regulation requiring the Board to record reasons. Therefore, in our view, the High Court was not justified in making the observation that from the resolution of the Board selecting the appellant for appointment, no reason was recorded by the Board. In the absence of any rule or regulation requiring the Board to record reasons and in the absence of mala fides attributed against the members of the Board, the selection made by the Board without recording reasons cannot be faulted with., In National Institute of Mental Health and Neuro Sciences versus K. Kalyana Raman (Dr), 1992 Supplement (2) Supreme Court Cases 481, the Supreme Court of India observed as follows: The function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. The High Court seems to be in error in stating that the Selection Committee ought to have given some reasons for preferring Dr Gauri Devi as against the other candidate. The selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility. There is no rule or regulation brought to our notice requiring the Selection Committee to record reasons. In the absence of any such legal requirement the selection made without recording reasons cannot be found fault with. The High Court in support of its reasoning has however referred to the decision of this Supreme Court of India in Union of India versus Mohan Lal Capoor, [(1973) 2 Supreme Court Cases 836 : 1974 Supreme Court Cases (Law & Society) 5 : (1974) 1 Supreme Court Reports 797]. That decision proceeded on a statutory requirement. Regulation 5(5) which was considered in that case required the Selection Committee to record its reasons for superseding a senior member in the State Civil Service. The decision in Capoor case cannot, therefore, be construed as an authority for the proposition that there should be reason formulation for administrative decision. Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Supreme Court of India in R.S. Dass versus Union of India [1986 Supplement Supreme Court Cases 617 : (1987) 2 All India Reporter 628] in which the Capoor case was also distinguished., The said law has been very recently affirmed by the Apex Court in Baidyanath Yadav versus Aditya Narayan Roy and Others, 2019 Supreme Court Online Supreme Court 1492 and the relevant paragraphs are as under: Moreover, we find ourselves in disagreement with the conclusion of the High Court that the decision of the State Screening Committee was arbitrary for nondisclosure of reasons. A catena of decisions of this Supreme Court of India has established that even the principles of natural justice do not require a duly constituted selection committee to disclose the reasons for its decision, as long as no rule or regulation obliges it to do so. In this regard, we may refer to the decision of this Supreme Court of India in National Institute of Mental Health (supra), which has also been subsequently affirmed in several cases, including Union Public Service Commission versus Arun Kumar Sharma (supra). In National Institute of Mental Health (supra), the Supreme Court of India, following the decision in R.S. Dass versus Union of India, (1986) Supplement Supreme Court Cases 617, observed as follows: The function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. Giving of reasons for decision is different from, and in principle distinct from, the requirements of procedural fairness. Procedural fairness is the main requirement in the administrative action. The fairness or fair procedure in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. As there is no such requirement mandating the disclosure of reasons in the relevant rules, regulations and guidelines, there is no doubt in our minds that the procedure adopted by the State Screening Committee cannot be faulted. Having thus found that the State Screening Committee was correct in considering only the two names recommended by the departmental Selection Committee, we now turn our attention to the crucial question of whether Respondent No.1's name was wrongly excluded by the departmental Selection Committee itself, on account of any bias, malice or arbitrariness., In so far as the alleged violation of principles of natural justice is concerned, it is settled by various judicial pronouncements that rules of natural justice are not rigid rules and are flexible in their application depending upon the background of the statutory provision, the rights that are affected and the consequences that they entail. All situations cannot be painted with the same brush. In this context, I may quote a passage from the judgment authored by Justice Krishna Iyer in Chairman, Board of Mining Examination versus Ramjee, (1977) 2 Supreme Court Cases 256 as follows: Natural justice is no unruly horse, no lurking lion, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of such situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction., I may also allude to a passage from the judgment in R.S. Dass versus Union of India, 1986 Supplement Supreme Court Cases 617 as follows: It is well established that rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case. These principles do not apply to all cases and situations. Applications of these uncodified rules are often excluded by express provision or by implication. In Union of India versus Tulsiram Patel [(1985) 3 Supreme Court Cases 398 : 1985 Supreme Court Cases (Law & Society) 672] a Constitutional Bench of this Supreme Court considered the scope and extent of applicability of principles of natural justice to administrative actions. Madon, J. summarised the position of law on this point and observed as follows: So far as the audi alteram partem rule is concerned, both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Maneka Gandhi case (Maneka Gandhi versus Union of India, (1978) 1). In the instant cases statutory regulations do not expressly or by implication apply the rule of audi alteram partem in making the selection. On the other hand the scheme contained under the regulations exclude the applicability of the aforesaid rule by implication. Select List is prepared each year which ordinarily continues to be effective for a year or till the fresh Select List is prepared. If during the process of selection a senior officer is proposed to be superseded by virtue of not being included in the Select List, and if opportunity is afforded to him to make representation and only thereafter the list is finalised, the process would be cumbersome and time consuming. In this process it will be difficult for the Committee to prepare and finalise the Select List within a reasonable period of time and the very purpose of preparing the Select List would be defeated. Scheme of the Regulations therefore clearly warrants exclusion of principle of audi alteram partem. No vested legal right of a member of the State Civil Service who after being considered, is not included in the Select List, is adversely affected. Non-inclusion in the Select List does not take away any right of a member of the State Civil Service that may have accrued to him as a government servant; therefore no opportunity is necessary to be afforded to him for making representation against the proposed supersession., The contention of the petitioner that reasons or justification must be provided by the Committee for not calling him for the interaction fails in view of the judgments referred to above as no provision has been brought to the notice of the Supreme Court of India which ordains the Committee to provide reason for not shortlisting a candidate for interaction, in the present case., Learned Senior Counsel for the petitioner vehemently rebutted the stand of learned counsel for the respondent that the petitioner is ineligible and thus the Committee was justified in not calling him for the interaction. He argued that the petitioner fulfills the minimum eligibility conditions as per the requirements of the Notification dated 11 October 2019, Act and Regulations, in as much as he is a distinguished academician teaching for the past seventeen years and having experience of ten years in a reputed research and/or academic administrative organization with proof of demonstrated academic leadership and is also a scholar in law and an eminent jurist. It was also argued that eminent jurist has not been defined under the Act and Regulations and it is not necessary to be a scholar in law for anyone to be an eminent jurist. This, according to learned Senior Counsel, has to be looked at in the background of the interdisciplinary thrust of modern academic thinking and the interdisciplinary character of NLUD. In any case, it is emphasized that the petitioner has added new areas of research, scholarship and thinking in the field of law and has published several papers and is well versed with dimensions like law and culture, law and language, linguistic justice, etc., I have already observed in the earlier part of the judgment that it is not for the Court to reassess the shortlisting by or the recommendations of a Selection Committee. The petitioner is calling upon the Court to substitute the opinion of a Selection Committee and re-examine whether the petitioner fulfills the criteria of eligibility by determining and interpreting the terms distinguished academician, eminent jurist or a scholar in law, which is impermissible. This domain and realm is beyond the scope of power of judicial review of this Supreme Court of India under Article 226 of the Constitution of India and the Court cannot substitute its wisdom for that of the Selection Committee., The issue of eligibility of the petitioner has been perspicuously addressed by the counsel for the respondent. It is pointed out that as per Section 20 (1) of the NLUD Act, the Vice Chancellor shall be an academic person, an outstanding scholar in law and an eminent jurist. The requirement is in line with the fact that the NLUD Act sets up a law school and not a general university. It is also brought out that as per Black's Law Dictionary, eminent jurist is a legal scholar skilled in law, who has distinguished himself by his writings in legal subjects or a judge. Yet another author describes a jurist as a person learned in law with the abilities and desire to contribute to the good of law. It is argued that the petitioner does not fit into these descriptions and is ineligible in terms of the Act and Regulations., Respondent No.2 has also succinctly brought out that the petitioner does not teach any law subject and only heads the Centre for Linguistic Justice and Endangered Languages. The petitioner has been teaching English and Linguistics at NLUD and has about four years of experience as a professor. His application, as per the respondent, demonstrates that he has worked on the intersection of law and language and English and linguistics are at best means of expressing law but cannot amount to core study of law and its principles. Respondent contended that the petitioner does not fit into the eligibility criteria of a professor with ten years experience under the Notification, having been appointed as a professor only on 1 July 2015. The claim of the petitioner that he falls in second category i.e. ten years of experience in a reputed research and/or academic administrative organization, as per respondent, cannot be isolated from the provisions of the NLUD Act which mandate outstanding scholarship in law. It is highlighted by the respondent that the application of the petitioner, instead of demonstrating academic leadership in law for ten years, only lists out routine administrative tasks and publications on intersection of language and law, including his current post-doctoral specialization on infusing literature and linguistics into legal action., It is evident that the Act and Regulations have left the assessment of a candidate possessing the specialized and academic qualifications for eligibility as well as recommendation of a panel for appointment to the expertise and wisdom of a high level expert Committee. The Court has no expertise to delve into the interpretation or determination of these qualifications. A Selection Committee comprising of eminent persons has taken a conscious decision to shortlist candidates for the interview. It is for the Committee to determine which candidate fits into the description of an academician or eminent jurist or a scholar of law and it is not open for the Court to make the said assessment. The Court therefore finds no reason to interfere in the well considered decision of the expert Committee and defers to their decision. Relevant would be to note passages from two judgments in this regard., In Dr. Ira Pandit versus University of Delhi and Others, 1994 Supreme Court Cases Online Delhi 190, the Court held as follows: These experts had satisfied themselves of the respondent No.4 fulfilling the requisite eligibility criteria including the experience qualification basing their satisfaction on the certificate dated 16 October 1993 quoted hereinabove and which was before them. It would indeed be treading on thin ice for us if we were to venture in reviewing the decision of the educational experts like an appellate authority., In National Institute of Mental Health and Neuro Sciences versus Dr. K. Kalyana Raman and Others, All India Reporter 1992 SC 1806, their Lordships of the Supreme Court of India have sounded a note of caution while dealing with such matters by laying down the law in the following terms: When the Selection Committee consisted of experts in the subject for selection and they were men of high status and also of unquestionable impartiality, the Court should be slow to interfere with their opinion., Assuming it may be possible to take two views of the nature of experience contemplated by the relevant provision of university, we need remind ourselves of the law laid down by their Lordships in Dr. Uma Kant versus Dr. Bhika Lal Jain and Others, All India Reporter 1991 SC 2272: It is well settled that in matters relating to educational institutions, if two interpretations are possible, the courts would ordinarily be reluctant to accept that interpretation which would upset and reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by such educational authorities., In Dalpat Abasaheb Solunke versus Dr. B.S. Mahajan, All India Reporter 1990 SC 434, their Lordships held: The Committee consisted of experts and it selected the candidates after going through all the relevant materials before it. Therefore setting aside the selection on the ground of the so-called comparative merits of the candidates, as assessed by the Court while sitting in appeal over selection so made would not be permissible., In J. Ranga Swamy versus Government of Andhra Pradesh and others, All India Reporter 1990 SC 535, their Lordships held that it was not for the Judge to decide or direct what should be the qualifications to be prescribed for a post unless there is something rendering the requirement prima facie preposterous., To sum up, the confidence reposed in a body of experts, persons of high status and unquestioned competence, is not to be questioned lightly. Courts should be cautious in, and possibly avoid, assuming role of experts. If it is not the field of law, the interpretation placed or the view taken by experts or body of experts should be allowed to prevail, by giving benefit of doubt too, if need be., In V.K. Agrawal (Dr.) versus University of Delhi, 2005 Supreme Court Online Delhi 1208, it was observed as follows: On the facts of the case we find no merit in this appeal. It is not for this Court to say whether a teacher is a distinguished teacher or not. This Court does not consist of experts in the subject concerned, and the Court must ordinarily defer to the opinion of the experts. The advisory committee consists of experts, who considered the case of the appellant and did not recommend grant of re-employment to him. We cannot sit in appeal over the decision of the advisory committee, which was accepted by the Vice Chancellor., In Reserve Bank of India versus C.L. Toora, (2004) 4 Supreme Court Cases 657 the Supreme Court of India held that the High Court should not set aside the selection held by a high power selection board. This is the view which has consistently been followed by the Supreme Court of India. This Court cannot ordinarily interfere with the decision of selection committees consisting of experts, as in National Institute of Mental Health and Neuro Sciences versus Dr. K. Kalyana Raman, 1992 Supplement (2) Supreme Court Cases 481. The advisory committee appointed by the Vice-Chancellor consists of experts, and we cannot sit in appeal over its decisions., Learned Counsel for the appellant submitted that while reasons have to be recorded in granting re-employment no reasons are required in rejecting the prayer for re-employment. He submitted that this is arbitrary. We cannot agree with this contention in view of the aforesaid decision of the Supreme Court of India where it has been held that no reasons need be given by the selection committee unless required by the statute., Learned Counsel for the appellant submitted that the Vice-Chancellor had to apply his mind himself instead of referring the matter to the advisory committee. We do not agree. The Vice-Chancellor, though no doubt a man of great academic distinction, cannot possibly be an expert in every subject. Hence he can certainly take the opinion of an advisory committee consisting of experts, particularly when guidelines have been framed for this purpose by the Executive Council., Learned Counsel for the appellant submitted that the appellant is a person of great distinction. As already stated above it is not for this Court to decide whether a person is of distinction or not as that is a matter for experts to decide. This Court cannot interfere with such a decision of experts unless there is a violation of some statute or there is some shocking arbitrariness, which is not so in this case. It is well settled that in academic/educational matters Courts should be reluctant to interfere, vide Rajendra Prasad Mathur versus Karnataka University, 1986 Supplement Supreme Court Cases 740: All India Reporter 1986 SC 1448, J.P. Kulshreshtra versus Allahabad University, (1980) 3 Supreme Court Cases 418: All India Reporter 1980 SC 2141, State of Mysore versus Govinda Rao, All India Reporter 1965 SC 491, etc., Learned Senior Counsel for the petitioner, in order to highlight that a Vice Chancellor need not be a professor in law, structured his argument on the foundation of appointment of one Professor V.S. Elizabeth who was appointed as Vice Chancellor of Tamil Nadu National Law University, with a background in History. In my view, the said argument is based on a foundation which cannot be sustained in law and therefore the edifice of the argument crumbles. This is so as Tamil Nadu National Law University is a separate university, having an existence distinct from that of NLUD. The two have been established and incorporated by different, stand-alone legislative enactments and the provisions of one have no nexus or connection with the other. As rightly pointed out by the learned counsel for the respondent, the criteria laid down for the appointment of Vice Chancellor of NLUD are not pari materia with those laid down for the appointment of Vice Chancellor of Tamil Nadu National Law University and Section 11 of the Tamil Nadu National Law School Act, 2012 imposes no such restriction., The petitioner has also assailed the order dated 25 June 2020 passed by the Chancellor, deciding the representation of the petitioner. Learned Senior Counsel had strenuously argued that the order records that the decision has been taken by the Committee based on its subjective satisfaction which may lead to a dangerous situation whereby arbitrariness, bias and mala fide may seep in. In the opinion of this Supreme Court of India, the expression subjective satisfaction used in the impugned order dated 25 June 2020 is being over emphasized by the petitioner. A perusal of the order shows that it is noted that under Section 20 of the NLUD Act, there is no duty vested in the Selection Committee to call each and every candidate for an interaction.
id_820	3	The use of the words subjective satisfaction are only to highlight that it is the domain of the Selection Committee to decide not only shortlisting of candidates for interview but also to draw out a panel based on the criteria laid down under the National Law University Delhi Act. The word subjective in the order does not connote personal whims or fancies as is sought to be made out by the petitioner only to suit his convenience. The dictionary meaning of the words subjective satisfaction is satisfying oneself and the satisfaction as required is of a reasonable and prudent standard, arrived at, based on some material before the authority. The Supreme Court of India must always be mindful of the fact that it cannot substitute its objective opinion for subjective satisfaction of a Selection Committee. This argument thus does not further the case of the petitioner., In this regard, I may also allude to a judgment in the case of Union Public Service Commission v. I.P. Tiwari and Others, (2006) 12 SCC 317, more particularly paragraphs 13 and 14, which are as follows: 13. Although, on behalf of the respondents it has been urged that there was no bar which precluded the Tribunal from looking into the original Annual Confidential Reports of the respective candidates, what we are required to consider is whether it was at all prudent on the part of the Tribunal to have adopted such a procedure which would amount to questioning the subjective satisfaction of the Selection Committee in preparing the select list. 14. From the submissions made and the materials on record, we are satisfied that the methodology which has been evolved and included in the Regulations for grading the eligible officers has been religiously followed by the Selection Committee which did not call for any interference by the Tribunal. The High Court has merely followed the decision of the Tribunal without independently applying its mind to the facts involved., I may also mention a pertinent aspect of the matter here. The decision to shortlist as well as the recommendations of the Selection Committee, after the interactions, dates back to February 2020. The petitioner chose to file a representation only on 03.06.2020 and even after rejection of the representation, the petitioner waited for two months to file the present petition seeking relief of a direction to the respondent to call him for interaction, conscious of the fact that the panel had been recommended. The Supreme Court of India finds no justification to upset the apple cart at this stage at the instance of the petitioner and in this context the objection of the respondent on delay and laches has merit., For all the aforesaid reasons, the Supreme Court of India finds no reason to interfere in the impugned orders and the decision of the Selection Committee. There is no merit in the petition and the same along with the pending application is accordingly dismissed. No order as to costs.
id_821	0	District Bar Association Dehradun versus Ishwar Shandilya and others., The Bar Council of India has preferred the present application seeking appropriate direction for the constitution of Grievance Redressal Committees for the redressal of grievances of advocates and bar associations at different levels, as submitted in an affidavit dated 15 September 2021, including directions to all the High Courts to constitute the suggested Grievance Redressal Committees for the States as well as District and Taluka courts within their respective territorial jurisdiction., Shri Manan Kumar Mishra, learned Senior Advocate and Chairman of the Bar Council of India, submitted that in order to check and control the frequent strikes and boycotts, the Bar Council of India has already filed an affidavit in Miscellaneous Application No. 859/2020 arising out of Special Leave Petition (Civil) No. 5440/2020 on 15 September 2021. The Council has suggested various measures for controlling the strike or abstention and has proposed a mechanism for redressal of the grievances of advocates and bar associations at all levels. He stated that the Bar Council is of the firm view that illegal and unreasonable strikes and boycotts are always detrimental and that Bar Councils can never approve or encourage such practices. It was further submitted that, in a meeting of Chairmen and Office Bearers of all the State Bar Councils, the Bar Council of India and all representatives of lawyers were of the unanimous opinion that a grievance redressal mechanism should be available to advocates at all levels—from the Talukas, Mouzas, District Courts and High Courts—where members of the Bar could vent their grievances. He observed that many times members of the Bar may have very genuine grievances and, due to non‑resolution of such grievances, may resort to strike. Accordingly, genuine grievances such as dissatisfaction arising from procedural changes in filing or listing of matters in High Courts or District Courts, or grievances pertaining to misbehaviour of any member of the lower judiciary or any other serious grievance against judicial officers, can be ventilated before the Grievance Redressal Committees so that the members of the Bar, who are also part of the justice delivery system, may feel that their genuine grievances are heard., Having heard Shri Manan Kumar Mishra, we reiterate that no member of the Bar can go on strike or abstain from court work. Time and again, the Supreme Court of India has emphasized and criticised advocates going on strike and abstaining from work. If a member of the Bar has any genuine grievance or difficulty because of procedural changes in filing or listing of matters, or any grievance pertaining to misbehaviour of a member of the lower judiciary, they may make a representation, and it is appropriate that such genuine grievances be considered by a forum so that strikes can be avoided. Therefore, we request all the High Courts to constitute a Grievance Redressal Committee in their respective High Courts, which may be headed by the Chief Justice and consist of two other senior judges—one from the service side and one from the Bar—nominated by the Chief Justice, as well as the Advocate General, the Chairman of the State Bar Council and the President of the High Court Bar Association. The High Court may also consider constituting a similar Grievance Redressal Committee at the District Court level. The Grievance Redressal Committee may consider genuine grievances related to differences of opinion or dissatisfaction because of procedural changes in filing or listing of matters of the respective High Courts or District Courts, and any genuine grievance pertaining to misbehaviour of any member of the lower judiciary, provided such grievance is genuine and not intended to exert pressure on any judicial officer. The present application stands disposed of in terms of the above. Interim Application No. 51257/2023 shall also stand disposed of., The Registry is directed to send copies of this order to the Registrar General of all the High Courts for further steps in terms of the present order.
id_823	0	Neutral Citation Number: 2023/DHC/000409 W.P.(CRL)1326/2022. Reserved on: 7th October 2022. Decided on: 19th January 2023. Through: Mr. M. Sufian Siddiqui, Mr. Rakesh Bhugra and Ms. Alya Veronica, Advocates. Through: Mr. Sanjay Jain, Additional Solicitor General of India with Mr. Nishant Tripathi, Mr. Akash Kishore, Ms. Harshita Sukhija and Ms. Tanya Aggarwal, Advocates for respondents, along with Inspector Suhash Chand Yadav, Police Station Jamia Nagar, Ms. Nandita Rao, Assistant Superintendent of Police (Criminal)., The petitioner, Amanatullah Khan (hereinafter referred to as the petitioner), filed the present petition under Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) for judicial review to seek quashing of the History Sheet opened apropos the petitioner and the purported proposal declaring him as Bad Character and the entry of the name of the petitioner in the Surveillance Register‑X, Part‑II, Bundle A at Police Station Jamia Nagar, South‑East, and also for seeking directions to initiate legal/departmental action against the delinquent police officials for exercising powers under Punjab Police Rules, 1934 (hereinafter referred to as the Rules) in a mala fide and perverse manner with material irregularities and impropriety., In a social welfare State like India, a large number of administrative and local authorities are being created to carry out welfare activities and these authorities are vested with discretion. The discretion, when coupled with the word administrative, reflects choosing from various available alternatives with reference to the rules of reason and justice and not according to personal whims; exercise of discretion should not be arbitrary, vague or fanciful. Administrative discretion is latitude given to governmental agencies to interpret and implement public policies. Suitable control over the exercise of discretion is necessary; otherwise, administrative authority may abuse or misuse the conferred power and become an arbitrary body. The discretionary power conferred on an administrative authority is not absolute and must be exercised within legal parameters., The judicial review is a tool by which legality or lack thereof can be examined in the exercise of administrative discretionary power or any administrative action. Judicial review ensures that an individual is given fair treatment by the authority and is designed to prevent excess and abuse of power by any administrative authority and any probability of favouritism. Judicial review is a suitable tool within the powers of the judiciary to set aside any action taken by any public or administrative authority stated to be inconsistent or in conflict with law. It was held in the case of Chief Constable of North Wales Police v. Evans, (1982) 3 All ER 141 that the purpose of judicial review is to ensure that the individual receives fair treatment. In Laker Airways Ltd. v. Department of Trade, (1977) 2 All ER 182, it was observed that discretionary power is to be exercised for the public good and this exercise can be examined by the courts. Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service, (1984) 3 WLR 1174, observed that administrative action is subject to judicial review on the grounds of illegality, irrationality and procedural impropriety., In India, negation of arbitrariness in the exercise of public power is considered a cardinal component of the rule of law. The courts in India have invalidated arbitrary exercise of administrative power. Article 14 of the Constitution strikes at arbitrariness in State action and ensures fairness and equality of treatment. The decision‑making process should be reasonable and rational and should not be arbitrary and violative of Article 14. The Supreme Court in E. P. Royappa v. State of Tamil Nadu, AIR 1978 SC 555 observed that Article 14 embodies a guarantee against arbitrariness. The Supreme Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597 observed that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The power of judicial review is considered an integral part of the constitutional system and is described as a basic and essential feature of the Constitution of India. It was also observed in S. R. Bommai v. Union of India, AIR 1994 SC 1917 that the purpose of judicial review is to ensure that the individual is given fair treatment by the authority and is a basic feature of the Constitution., The power of judicial review has certain inherent limitations and is not without restrictions. Judicial review is concerned with legality rather than the merits of the case. The courts cannot substitute their own view in the exercise of judicial review. Judicial review is not an appeal against the decision taken by the concerned authority; it is a protection and not a weapon. The power of judicial review cannot be exercised to amend law but to ensure that the government carries out its function in accordance with legal and constitutional principles. The Supreme Court in State of Punjab v. Gurdial Singh, (1980) 2 SCC 471 observed that the court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court lock‑jawed save where power has been polluted by oblique ends or is otherwise void on well‑established grounds. The constitutional balance cannot be upset. The Supreme Court in Tata Cellular v. Union of India, (1994) 6 SCC 651 observed that judicial review is concerned with reviewing and not with the merits of the decision. It was observed that the judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations: the ambit of judicial intervention and the scope of the court’s ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action. Judicial review is concerned with reviewing, not the merits of the decision in support of which the application for judicial review is made, but the decision‑making process itself., The Supreme Court in State of N.C.T. of Delhi & another v. Sanjeev @ Bittoo, Criminal Appeal No. 498/2005 decided on 04.04.2005 observed that the scope of judicial review of administrative orders is limited to the legality of the decision‑making process and not the legality of the order, and that a mere possibility of another view cannot be a ground for interference., The facts as mentioned in the present petition are that the petitioner is a Member of the Delhi Legislative Assembly from Okhla Constituency and, as such, represents the will of the people of his constituency. The petitioner is a popular leader of the masses and is enjoying his second term as Member of Legislative Assembly. He has been the Chairman of the Minority Welfare Committee, Delhi Legislative Assembly, and is holding a third term as Chairman of the Delhi Waqf Board. In the capacity of Chairman of the Delhi Waqf Board, he is undertaking various charitable functions including financial aid for medical treatment, education, house construction, marriage, etc., to needy and destitute persons across religions. He is also very active in providing shelter and provisions to victims of riots and natural calamities or pandemics., The respondent, being the Commissioner of Police, is responsible for the acts of his subordinate officers and to initiate legal or departmental action against delinquent subordinate police officials as contemplated in the Delhi Police Act, 1978., The South Delhi Municipal Corporation (SDMC) on 12 May 2022 brought bulldozers/JCB machines to tear down houses of the poor. The petitioner, elected MLA from Okhla Constituency, on that date and in the capacity of the elected representative of the people and also exercising his fundamental rights guaranteed under Articles 19(1)(a), 19(1)(b) and 21 of the Constitution, protested in a peaceful manner and without arms at Kanchan Kunj, falling within the jurisdiction of Police Station Kalindi Kunj, against the demolition drive undertaken by SDMC in that area. The petitioner, representing the will of the people, took a stand that no house of any poor should be demolished. The right to protest, covered under Article 19, has a special place in a democracy and the Supreme Court of India has held that the right to assembly and peaceful agitations are a basic feature of a democratic system. The imposition of Section 144 of the Code is a reasonable restriction, but the concerned authority on 12 May 2022 did not impose prohibitory orders under Section 144. The protest was only in the interest of the local public., The Delhi Police, led by the Additional Commissioner of Police, Sarita Vihar, and accompanied by personnel from the Paramilitary Armed Forces, without any provocation and without giving any prior notice, resorted to a baton charge on the protestors. The Additional Commissioner of Police punched and pushed the petitioner, but the petitioner was protected by his unarmed bodyguards. The petitioner was detained by the police along with other persons and was taken to Police Station Kalkaji at about 02:15 pm, where he was unlawfully detained till late in the evening. The police registered FIR No. 246/2022 under Sections 147, 148, 149, 186, 353, 332, 153 of the Indian Penal Code against the petitioner and four to five persons including his unarmed bodyguards. The petitioner was remanded to judicial custody till 13 May 2022. The police brazenly trampled upon the fundamental, human and statutory rights of the petitioner and also flouted the guidelines laid down by the Supreme Court in Dilip K. Basu v. State of West Bengal & others, (1997) 7 SCC 169, and did not follow the directions given by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 at the time of registration of FIR No. 246/2022. The petitioner was arrested in violation of the directions given by the Supreme Court in Arnesh Kumar. The respondent did not take any action to protect the precious rights of the petitioner despite an e‑mail sent to the respondent by the former Vice Chairman of the Delhi Bar Council., The petitioner, on 13 May 2022, was to be produced before the Metropolitan Magistrate and his bail application was to be considered. The petitioner learned from social media that the Station House Officer, Police Station Jamia Nagar (respondent no. 4), on 28 March 2022 had submitted a dossier to the Assistant Commissioner of Police, New Friends Colony (respondent no. 3) and Deputy Commissioner of Police, South East (respondent no. 2) along with a proposal for opening a History Sheet of the petitioner and to place his name as Bad Character in Register‑X, Part‑II, Bundle A to keep close surveillance on his activities. The proposal also accompanied a list of a total of eighteen cases stated to be pending or registered against the petitioner. The petitioner has already been discharged, acquitted or had offences compounded in fourteen cases. The proposal, besides referring to the petitioner as Bad Character, also alleged that the petitioner had formed a group consisting of persons from his village and neighboring villages and was indulging in land grabbing and illegal constructions, besides creating terror in general; most of the cases against the petitioner relate to intimidation, threatening, hurt, riots, causing hindrance and discharge of duties of public servants and causing enmities between two groups or communities; and the petitioner was portrayed as a habitual and desperate criminal with no respect for the law, repeatedly indulging in serious criminal activities. However, there was no material to support these allegations., The approval was sought from respondent no. 3 and respondent no. 2 on the basis of the above‑mentioned allegations for opening a criminal history of the petitioner. Respondent no. 3 approved the proposal on 29 March 2022 and respondent no. 2 also approved the proposal on 30 March 2022 in a mechanical manner without recording definite reasons or application of mind, which is in contravention of Rule 23 of the Punjab Police Rules, 1934. Surveillance Register No. X is provided in Volume III, Chapter XXIII of the Rules. Rule 23.5 deals with entries in and cancellation from the Surveillance Register and stipulates that ordinarily before the name of any person is entered in Part II of the Surveillance Register, a History Sheet shall be opened for such person. The rule further stipulates that if, from the entries in the History Sheet, the Superintendent is of the opinion that such person should be subjected to surveillance, he shall enter the name in Part II of the Surveillance Register, but provided that the names of persons who have never been convicted or placed on security for good behaviour shall not be entered until the Superintendent has recorded definite reasons for doing so. The record of such reasons shall be treated as confidential and the person concerned shall not be entitled to a copy thereof. However, no definite reasons were provided by respondent no. 2 prior to approving the purported dossier and the proposal. The Surveillance Register must be written by the Officer in charge of the police station and entry in Part I can only be made by order of a Gazetted Officer. The Superintendent must record reasons before entering the name of a person in Part II of the Register. The History Sheet can be prepared under Rule 23.8, which clearly prescribes that it requires great care. These rules have been enacted to ensure that persons of bad character or suspects are kept under surveillance and check. The circular dated 21 September 2000 issued by the Deputy Commissioner of Police (Headquarters) provides that the Deputy Commissioner of Police must record reasons to keep a person’s name in a Surveillance Register., The Supreme Court in Malak Singh v. State of Punjab, AIR 1981 SC 760 held that the police do not have a licence to enter the name of whosoever they like in the Surveillance Register. The Deputy Commissioner of Police under Rule 23.5 is not bound to open the History Sheet of an offender. The expression ‘ordinarily’ used in the rule leaves discretion with the concerned officer to apply his mind and consider the conduct of the accused., The purported dossier, along with the proposal and the official noting at the foot of the proposal, was supposed to be confidential as per Rule 23.5 of the Rules but was circulated in a pre‑planned manner on 13 May 2022 at around 12:30 pm, i.e., before the consideration of the bail application of the petitioner at Saket Courts. The copies of the dossier were deliberately leaked by the Delhi Police to the print and social media. The reputation of the petitioner deserved to be preserved by the concerned authorities and cannot be allowed to be sullied with the passage of time. The dossier and the proposal were leaked by the police deliberately in the public domain as they had not been placed before the Metropolitan Magistrate who heard the bail application on 13 May 2022., There was no proximate cause or immediate ostensible justifiable reason which triggered the Station House Officer, Police Station Jamia Nagar (respondent no. 4) to prepare the purported dossier and proposal of the petitioner on 28 March 2022, as the last case stated to be registered against the petitioner was in 2021, whereas the purported proposal was sent for approval on 28 March 2022 and subsequently approved by respondent no. 2 on 30 March 2022 without recording special reasons or application of mind. The mala fide conduct of the Delhi Police is also manifestly apparent from the fact that the entire dossier and the purported proposal were deliberately leaked in the media. The petitioner was also subjected to inhuman and degraded treatment by the Assistant Commissioner of Police, Kalkaji, without any provocation on 12 May 2022 during the demolition drive, in contravention of his fundamental rights guaranteed under Article 21 of the Constitution. The petitioner sent a legal notice dated 21 May 2022 calling upon respondent no. 1 to revoke the proceedings in question, but no response or action was taken on the notice., The petitioner sought quashing of the opening and approval of the History Sheet declaring him as Bad Character and consequential entries in the Surveillance Register being exercised by respondents no. 2 to 4 on the grounds that it was exercised with irregularity and impropriety in a mala fide manner and in contravention of the Rules applicable to the National Capital Territory of Delhi. The proposed exercise of powers by respondents no. 2 to 4 was devoid of any application of mind and in brazen defiance of the Rules. The purported approval of the petitioner’s proposal of History Sheet and Bad Character by respondents no. 3 and 4 was done in a mechanical manner without recording any special or definite reasons. The respondents acted in a perverse and mala fide manner and violated the circular dated 21 September 2000 issued by the Deputy Commissioner of Police (Headquarters). The last case was registered against the petitioner on 3 April 2021 vide FIR No. 59/2021 and was also a counter‑blast to the FIR lodged by the petitioner. The petitioner has already been discharged, acquitted or had offences compounded in fourteen of the eighteen cases; the remaining four cases are pending for investigation or trial. The petitioner also raised other grounds as detailed in the petition. The petitioner, feeling aggrieved, prayed as follows: (a) quash the History Sheet opened apropos the petitioner, the purported proposal declaring him as Bad Character, and the entry in the name of the petitioner, if any, in Surveillance Register‑X, Part‑II, Bundle A at Police Station Jamia Nagar, District South‑East; (b) direct the Commissioner of Police to initiate appropriate legal or departmental action against the delinquent police officials, viz. Deputy Commissioner of Police – South East (respondent no. 2), Assistant Commissioner of Police – New Friends Colony (respondent no. 3), and Station House Officer, Police Station Jamia Nagar (respondent no. 4), for exercising their powers under the Punjab Police Rules, 1934 as applicable to the National Capital Territory of Delhi, in a mala fide and perverse manner with material irregularity and impropriety; and (c) grant any further relief which this Delhi High Court may deem fit and proper in the facts and circumstances of the present case., The respondent filed a Status Report dated 27 July 2022, hereinafter referred to as the Status Report. It states that the petitioner is involved in twenty‑two criminal cases, of which three cases registered at Police Stations Usmanpur, Anti‑Corruption Bureau, Delhi and Parliament Street are under investigation and final reports shall be filed in the concerned courts shortly. Four cases registered at Police Stations Shaheen Bagh, Kalindi Kunj, Civil Lines and Jamia Nagar are pending for trial before the concerned courts. The investigating agency filed a supplementary charge sheet in FIR No. 302/2017 registered at Police Station Jamia Nagar before the concerned court on 15 July 2022 after further investigation, recording of statements of witnesses and collection of other material witnesses for offences punishable under Sections 147, 148, 149, 323, 341, 356, 379, 506, 34 of the Indian Penal Code and Section 27 of the Arms Act. The petitioner, along with other persons, also assaulted the then Chief Secretary, Delhi, for which FIR No. 54/2018 was registered at Police Station Civil Lines and charges have already been framed by the trial court against the petitioner on 11 August 2021. The cases at Police Stations Shaheen Bagh and Kalindi Kunj were also registered against the petitioner in May 2022 for assaulting, causing hurt and obstructing public servants., The Delhi Police, at the level of Assistant Commissioner of Police, after considering and appraising the material and information available against the petitioner regarding his activities, forwarded a proposal for keeping the petitioner under surveillance for necessary approval and decided to maintain surveillance of the petitioner following the due procedure under the Rules., The respondent, through respondent no. 3, sent a formal proposal to respondent no. 2 on 28 March 2022 for opening a History Sheet of the petitioner under the Rules. Respondent no. 4 approved the opening of the History Sheet of the petitioner on 30 March 2022 and the entry of the petitioner’s name in Surveillance Register No. X, Part‑II, after careful review based on the pertinent information and justification specified in the proposal. The name was entered in Register No. X, Part‑II under Rule 23.4 following due procedure. The petitioner is not entitled to any information as to the surveillance as per Rule 4., The petitioner and his supporters on 9 May 2022 obstructed South Delhi Municipal Corporation staff from discharging their official duty during an anti‑encroachment removal programme on Road Number 13, Shaheen Bagh, for which FIR No. 182/2022 under Sections 186, 353, 34 of the Indian Penal Code was registered at Police Station Shaheen Bagh against the petitioner and other persons, and the case is pending before the trial court. The SDMC also conducted a demolition programme in the vicinity of Police Station Kalindi Kunj on 12 May 2022, and the petitioner and his supporters arrived and attempted to impede the SDMC workers, also pelting stones at SDMC staff and police officials. Accordingly, FIR No. 246/2022 under Sections 147, 148, 149, 186, 353, 332, 153 of the Indian Penal Code was registered at Police Station Kalindi Kunj. The petitioner, along with his supporters, was taken into custody and arrested after following due process of law., The petitioner was found to be involved in twenty‑two criminal cases for offences such as hurt, molestation, assault on public servants, obstructing police officials from discharging their duties, criminal intimidation and corruption. The Delhi Police has not circulated the History Sheet pertaining to the petitioner on social media on 13 May 2022. It is prayed that the present petition be dismissed., Sh. M. Sufian Siddiqui, Advocate, the learned counsel for the petitioner, and Sh. Sanjay Jain, the learned Additional Solicitor General of India for the respondents, were heard. Record and file bearing H.S. No. 89A produced from the office of the Deputy Commissioner of Police, South East (respondent no. 2) were perused., The learned counsel for the petitioner advanced oral arguments and also submitted written arguments. He argued that the approval accorded by the Deputy Commissioner of Police was devoid of recording definite reasons and that the Status Report is silent on this legal issue. The Delhi Police has leaked the confidential documents pertaining to the petitioner to a rival political party, and the spokesperson of the rival party has circulated the entire file pertaining to the History Sheet of the petitioner on social media. The purported order of respondent no. 2 was not part of the entire file pertaining to the History Sheet of the petitioner and there was no indication that the approval was granted by respondent no. 2 after recording definite reasons or that, vide a separate order, definite reasons had been recorded., The case of the petitioner does not fall under clauses (a), (c) and (d) of Sub‑rule (3) of Rule 23.4. Clause (b) would be applicable to the petitioner. Rule 23.5(1) lays down that no entry shall be made in Part II except by order of the Superintendent, who is strictly prohibited from delegating his authority. Rule 23.5(2) provides for opening of History Sheets prior to a person’s name being put on the Surveillance Register. Rule 23.8 provides that a History Sheet may be opened under the written order of a police officer who is not below the rank of Inspector., He further argued that the questions of law requiring adjudication by this Court are: (i) whether the police authority who initiated action had reasonable ground or sufficient material for believing that the petitioner is a desperate character, a habitual offender or a person habitually addicted to crime; (ii) whether the petitioner’s involvement in eighteen cases, of which he has been discharged, compounded or acquitted in fourteen cases, two cases are pending investigation with charge sheets not filed, and two cases are pending trial, could be construed as reasonable ground or sufficient material for preparing the History Sheet by respondent no. 4 and for approval by respondent no. 2 under the Rules; (iii) whether the statutory provisions envisaged in the Rules have been strictly followed while preparing the History Sheet and granting purported approval thereon; (iv) whether the purported opinion of the police authority is based on evidence on record or on reasonable grounds, or whether it was formulated on the basis of conjectures, surmises and predilections; and (v) whether the Delhi Police has acted in a mala fide manner by deliberately leaking confidential documents and thereafter taking no action on the leakage of strictly confidential documents, besides raising other legal and factual issues., The concerned authorities have violated Rules 23.8(3) and (4) in preparation of the purported History Sheet, which was required to be prepared with great care but was prepared in fragrant disregard of the dictum of law laid down by the Division Bench of this Court in Sarjeet Singh v. Commissioner of Police & Others, 2022 (62) DRJ 644 (DB), as well as the law laid down by the Supreme Court. The powers under the Rules are required to be exercised with great care and caution and in conformity with law as laid down in various judgments passed by this Court and by the Supreme Court., He further argued that the proposed History Sheet is an example of non‑application of mind and mala fide exercise of powers. There was no proximate cause for opening the purported History Sheet and the approval thereof by respondent no. 2. The Delhi Police never initiated any proceedings as per Section 110 of the Code. The counsel for the petitioner argued that the proposed action of opening the History Sheet and subsequent approval by the Deputy Commissioner of Police should be quashed and the writ petition allowed. The learned counsel for the petitioner relied on Amarendra Kumar Pandey v. Union of India & Others, 2022 Live Law (SC) 600; Deepak Solanki @ Sansar v. State & Others, Writ Petition (Criminal) 14/2005 decided on 03 July 2009; Amrik Singh v. Commissioner of Police, Criminal Writ Petition No. 300/1985 decided on 06 April 1987; Mohd. Anis v. Commissioner of Police and Others, 1993 (25) DRJ (DB); Peter Samuel Wallace v. Inspector General of Police, New Delhi & Others, (1981) 20 DLT 333; and Sarjeet Singh v. Commissioner of Police & Others, 2022., The learned Additional Solicitor General of India, assisted by Ms. Nandita Rao, Additional Standing Counsel for the respondents, advanced oral arguments and written arguments on behalf of the respondents. It was argued that the petitioner can be reasonably believed to be a habitual offender whether he has been convicted or not and that the non‑conviction of the petitioner is not a disqualification for entering his name in the Surveillance Register. Rule 23.5 further provides the procedure for making entries in the Surveillance Register and the record produced from the office of the Deputy Commissioner of Police, South East, before this Court reflects that there was complete procedural compliance in this regard.
id_823	1	It is further argued that as per Rule 23.5(2) before the name of any person is entered in Part II of the Surveillance Register, a History Sheet should be opened for such person and if from the entries in the History Sheet the Superintendent of Police is of the opinion that such person should be subjected to surveillance, he shall enter his name in Part II of the Surveillance Register provided that he shall record the definite reasons for doing so, if the person so proposed to be entered in the Register has never been convicted nor placed on security for good behaviour. The Competent Officer has recorded the definite reasons regarding the justification of the petitioner's name being placed in Part II of the Register., It is further argued that Rule 23.8 deals with the preparation of History Sheets and submitted that the History Sheet qua the petitioner was prepared in accordance with the letter and spirit of Rule 23.8. The learned Additional Solicitor General of India, after referring the list of 21 cases registered against the petitioner during the period from 2016 to 2022, argued that most of the cases registered against the petitioner are in and around Jamia Nagar, from where the petitioner is an elected representative, and mere compounding of few cases, discharge in few other cases and acquittal in a couple of other cases cannot dilute factors required in the assessment of the element of habitual offender., There is no violation of Rules 23.8(4) or any provisions of the Code and every decision was taken on careful analysis of the cogent material which comprised the complaints made against the petitioner and lodging of several FIRs etc. It is argued that the present petition be dismissed. The learned Additional Solicitor General of India for the respondents also relied upon case law as referred by the learned counsel for the petitioner., It is reflected from the combined reading of the petition filed by the petitioner and the Status Report submitted on behalf of the respondents that the petitioner is Member of Legislative Assembly of Delhi from Okhla Constituency and is enjoying a second term as Member of the Legislative Assembly (MLA). The petitioner was arrested on 12.05.2022 in pursuance of FIR bearing no. 246/2022 registered under sections 147, 148, 149, 186, 353, 332, 153 IPC at Police Station Kalkaji and was produced before the concerned Metropolitan Magistrate on 13.05.2022. On 13.05.2022 the petitioner came to know about submissions of dossier on 28.03.2022 by respondent No. 4 to respondent No. 3, who approved the proposal on 29.03.2022 and subsequent approval by respondent No. 4 on 30.03.2022 for opening a History Sheet of the petitioner and to place his name as Bad Character (BC) in Register‑X, Part II, Bundle A for keeping close surveillance on the activities of the petitioner. The petitioner was stated to be involved in 18 cases, of which the petitioner was discharged/acquitted or offences were compounded etc. in 14 cases and the 18 cases were related to intimidation, threatening, hurt, riots, causing hindrance in discharge of the duties of public servants and causing enmities between two groups/community. As per the Status Report, the petitioner was found to be involved in 22 criminal cases, of which 3 cases pertaining to Police Station Usmanpur, Anti‑Corruption Bureau, Delhi and Parliament Street are under investigation and 4 cases registered at Police Stations Saheen Bagh, Kalindi Kunj, Civil Line and Jamia Nagar were pending trial before the concerned courts., The main allegation of the petitioner, as argued by the learned counsel for the petitioner, is that the name of the petitioner was entered in Register‑X, Part II, Bundle A without following due process of law and the Rules and in a mechanical manner and without recording definite reasons and application of mind in contravention of Rule 23 of the Rules. There was no proximate cause or immediate ostensible, justifiable reasons to prepare the dossier and proposal of the petitioner on 28.03.2022 and the consequent approval accorded by respondent No. 2 on 30.03.2022 was without recording special reasons and application of mind. As argued by the respondents, respondent No. 4, through respondent No. 3, sent a proposal to respondent No. 2 on 28.03.2022 for opening a History Sheet of the petitioner under the Rules and, on the basis of subjective satisfaction and after giving proper reasons, respondent No. 2 approved the opening of the History Sheet qua the petitioner and also the entry of his name in Register‑X, Part II, Bundle A after following due process of law., It is necessary to refer to Chapter XXIII of the Rules applicable to Delhi to understand the real controversy between the petitioner and the respondents. Chapter XXIII deals with prevention of offences. Rule 23.4 deals with Surveillance Register No. X. Rule 23.5 deals with entries in and cancellation from the surveillance register. Rule 23.8 deals with preparation of History Sheets. The relevant Rules read as follows: 23.4. Surveillance Register No. X – (1) In every police station, other than those of the railway police, a Surveillance Register shall be maintained in Form 23.4(1). (2) In Part I of such register shall be entered the names of persons commonly resident within or commonly frequenting the local jurisdiction of the police station concerned, who belong to one or more of the following classes: (a) All persons who have been proclaimed under section 87 of the Code of Criminal Procedure. (b) All released convicts in regard to whom an order under section 565 of the Criminal Procedure Code has been made. (c) All convicts whose sentence execution is suspended in whole, or any part of whose punishment has been remitted conditionally under section 401 of the Criminal Procedure Code. (d) All persons restricted under Rules of Government made under section 16 of the Restriction of Habitual Offenders (Punjab) Act. (3) In Part II of such register may be entered at the discretion of the Superintendent: (a) persons who have been convicted twice or more of offences mentioned in Rule 27.29; (b) persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not; (c) persons under security under sections 109 or 110 of the Code of Criminal Procedure; (d) convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without the imposition of any conditions. Note – This rule must be strictly construed, and entries must be confined to the names of persons falling in the four classes named therein., Entries in and cancellations from the surveillance register – (1) The surveillance register shall be written up by the officer in charge of the police station personally or by an Assistant Sub‑Inspector in a clear and neat script. No entry shall be made in Part II except by the orders of the Superintendent, who is strictly prohibited from delegating this authority. No entry shall be made in Part I except by the order of a gazetted officer. Entries shall be made either under the personal direction of, or on receipt of a written order from, an officer authorized by this rule to make them. In the latter case, original orders shall be attached to the register until the entry has been attested and dated by a gazetted officer. (2) Ordinarily, before the name of any person is entered in Part II of the surveillance register, a History Sheet shall be opened for such person. If, from the entries in the History Sheet, the Superintendent is of the opinion that such person should be subjected to surveillance, he shall enter his name in Part II of the surveillance register, provided that the names of persons who have never been convicted or placed on security for good behaviour shall not be entered until the Superintendent has recorded definite reasons for doing so. The record of such reasons shall be treated as confidential and the person concerned shall not be entitled to a copy thereof., Preparation of History Sheets – The initial preparation of a History Sheet requires great care and should invariably be done by the officer in charge of the police station himself or by a thoroughly experienced Assistant Sub‑Inspector under specific orders. (1) The description of the criminal should enable the reader to form a picture of the individual, with special attention to peculiarities of appearance, gait, speech, etc., by means of which the person may be distinguished. (2) The space for relations and connections should be filled in to afford clues to those persons with whom the criminal is likely to harbour when wanted by the police, including relations or friends living at distances from his home, and his associates in crime, abettors and receivers. The particular nature of each person’s connection should be noted, and when persons shown as connections themselves have History Sheets, a cross‑reference with those sheets should be given. (3) Under property and mode of earning livelihood, particulars should be entered to facilitate a judgment as to whether the criminal is at any time living beyond his means, whether he is capable of furnishing a personal recognisance of any value, whether he is an owner of property, a tenant or a wage earner, and so on. (4) The description of the crime to which the individual is addicted should be in detail, showing not merely the class of crime but the particular type, methods followed, localities chiefly frequented, weapons or instruments used, etc. When these particulars have been carefully and concisely entered, the initial entry on the reverse side of the form should be made in the form of a summary of the individual’s criminal career up to the date of the History Sheet being prepared, and should include the particular reasons and authority for its preparation. Copies of History Sheets prepared and published by the Criminal Investigation Department and published in the Criminal Intelligence Gazette shall be filed with the History Sheets of the persons concerned in their home police stations. The police‑station History Sheets in all such cases will be endorsed with the letters C.I.D. and the criminal’s provincial numbers in red ink. The activities of all such criminals subsequent to the publication of their provincial History Sheets must be communicated promptly to the Criminal Investigation Department through the District Central Investigating Agency. Duplicates of the sheets of criminals known or suspected to operate on the railway shall be supplied to the nearest railway police station and the originals shall be endorsed with the letter R in red ink. The District Police shall also supply the Railway Police Station with copies of all subsequent entries made in such History Sheets, so that the Railway Police copies may be kept strictly up to date., The combined reading of the above Rules reflects that the following facts are required to be considered before entering the name of a person in Register X, Part II, Bundle A as provided under Rule 23.4: (i) In every police station other than Railway Police, a Surveillance Register shall be maintained in Form 23.4(1). (ii) The name of persons in Part II of the Surveillance Register may be entered at the discretion of the Superintendent (Deputy Commissioner of Police in Delhi) who are reasonably believed to be habitual offenders. (iii) The Surveillance Register shall be written up by the Officer‑in‑charge of the police station personally or by an Assistant Sub‑Inspector in a clear and neat script. (iv) The entry in Part II can only be made by the orders of the Superintendent (Deputy Commissioner of Police in Delhi) who is strictly prohibited from delegating his authority. (v) Ordinarily a History Sheet is required to be opened in respect of the person before his name is entered in Part II of the Surveillance Register. (vi) The names of persons who have never been convicted or placed on security for good behaviour shall not be entered until the Superintendent has recorded definite reasons for doing so; the record of such reasons shall be treated as confidential and the person concerned shall not be entitled to a copy thereof. (vii) The History Sheet initially required to be prepared with great care should invariably be done by the Officer‑in‑charge of the police station himself or by a thoroughly experienced Assistant Sub‑Inspector under specific orders., The Rules have been enacted to prevent the commission of offences but must be exercised with utmost care and caution as they impact the curtailing of liberty of the affected person. These Rules cannot be invoked on fanciful surmises of the concerned police officer. The Supreme Court in Dhanji Ram Sharma v. Superintendent of Police, North District, Delhi Police and others, AIR 1966 SC 1766, observed that the provisions under the Rules have been enacted to prevent the commission of offences and to collect intelligence affecting public peace. For the efficient discharge of their duties, police officers have been empowered by the Punjab Police Rules to open the History Sheets of suspects. The powers must be exercised with caution and in strict conformity to the Rules, and a police officer must be satisfied that the condition precedent has been satisfied. The Supreme Court in Malak Singh v. State of Punjab, AIR 1981 SC 760, observed that the principle that a person must be given an opportunity of being heard does not apply to history sheeters and the Surveillance Register. The enquiry was held to be confidential and the principle of natural justice is expressly excluded. The observance of natural‑justice principles may defeat the very object of the rule providing for surveillance. It was reiterated that these provisions relate to the maintenance of History Sheets and the Surveillance Register for the purpose of preventing crimes and are purely administrative and non‑judicial acts., The Supreme Court in Malak Singh also held that the police do not have a licence to enter the name of whomever they like in the Surveillance Register and that entry in violation of Rule 23.4 of the Punjab Police Rules would be mala fide. In other words, the Delhi High Court would be well within its powers to quash such an order. The Court observed that this does not give the police a licence to enter names of persons they like or dislike in the Surveillance Register; nor can surveillance be used to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can surveillance intrude so as to offend the dignity of the individual. Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance beyond the limits prescribed by the Rules, will entitle a citizen to the court's protection, which the court will not hesitate to give. The rules prescribing the conditions for making entries in the Surveillance Register and the mode of surveillance recognise the caution and care required of police officers. Rule 23.4 enjoins a duty upon the police officer to construe the rule strictly and confine entries to the class of persons named in the rule. Similarly, Rule 23.7 demands that there be no illegal interference in the guise of surveillance. Surveillance, therefore, must be unobtrusive and within bounds., The Division Bench of the Delhi High Court in Sarjeet Singh v. Commissioner of Police & others, 2002 (62) DRJ 644 DB, also referred to decisions of the Supreme Court., The History Sheet file pertaining to the petitioner bearing HS No. 89A was produced from the office of respondent No. 2 and carefully perused. The perusal reflects that 22 cases were registered against the petitioner via different FIRs, of which 18 cases were registered before the preparation of the dossier and proposal by respondent No. 4 on 28.03.2022. The details of these cases as submitted by the respondents are reproduced below:\n\nDate \| Section of Law \| Police Station \| Present Status of Case\n--- \| --- \| --- \| ---\n09.01.1995 \| Under sections 147, 148, 149, 323, 324, 34 IPC \| Police Station Sri Niwas Puri \| Acquitted on 22.03.2006 by Ravinder Bedi, Metropolitan Magistrate, Patiala House Court, New Delhi\n18.10.2008 \| Under sections 323, 341, 427, 34 IPC \| Police Station Jamia Nagar \| Discharged on 30.06.2010 by Shri Naveen Arora, Metropolitan Magistrate, Patiala House Court, New Delhi\n27.10.2008 \| Under West Bengal Act \| Police Station Jamia Nagar \| Discharged on 21.12.2008; Court observed that merely installing a banner at an electric pole does not fall within the definition of defacement. Discharged on 12.02.2013 by Smt. Somya Chauhan, Metropolitan Magistrate, Patiala House Court\n04.10/2010 \| Under sections 353, 363, 186, 506, 34 IPC and 23/26 J.J. Act \| Police Station Jamia Nagar \| Discharged on 03.05.2018\n05.01.2011 \| (Details omitted for brevity) ...\n(Additional case entries continue in the same format, covering cases up to 12.05.2022, including charges, discharges, acquittals, compounding, and pending investigations across various police stations such as Jamia Nagar, Usmanpur, Shaheen Bagh, Kalindi Kunj, and others.), It is further reflected that in the proposal dated 28.03.2022 the name of the petitioner, his parentage, native village, and number of cases are mentioned as per the requirement of Form No. 23.4(1) alongside reference to his family history and involvement in land grabbing and illegal constructions. It is also mentioned that most of the 18 cases are related to threatening, hurt, riots, causing hindrance in the duties of public servants, etc., and that he was found to be a habitual criminal of the area. The proposal was recommended for approval by respondent No. 4 after considering the requirement of surveillance of the petitioner’s activities, recommending that a History Sheet be opened and his name entered in Register‑X, Part II, Bundle A. Respondent No. 3, through proceedings on 29.03.2022, scrutinised the criminal record and career history of the petitioner, who is found to be involved in 18 cases including attempted murder, riots, hurting religious sentiments, causing hurt, eve‑teasing, threat, and obstructing government servants. Respondent No. 3 was convinced that the petitioner needs continuous surveillance by the police and recommended approval for opening the History Sheet in Bundle A. Respondent No. 2, after perusing the record and the reports given by respondents No. 4 and No. 3, was convinced that the petitioner is a habitual criminal and his activities must be kept under surveillance; consequently, he accorded approval for entering the petitioner’s name in Register‑X, Part II, and for placing the History Sheet in Bundle A., The learned counsel for the petitioner primarily argued that respondent No. 2 accorded approval on 30.03.2022 without giving definite and justifiable reasons and without application of mind. The learned Additional Solicitor General for the respondents argued to the contrary. Administrative authority vested with power to determine questions affecting the rights of individuals must exercise that power in conformity with the rules of natural justice, including the requirement of passing reasoned orders. Due to the expanding horizon of judicial review, the requirement to give reasons has become an indispensable part of judicial review. The Privy Council in Minister of Natural Revenue v. Wright’s Vanadian Ropes Ltd., (1947) AC 109 held that a Minister who failed to give reasons for a special tax assessment had not shown that it was correct and that the taxpayer’s appeal must be allowed. In R v. Civil Service Appeal Board ex Cunningham, (1991) 4 All ER 310, an award of abnormally low compensation to an unfairly dismissed prison officer by the Civil Service Appeal Board, which made it a rule not to give reasons, was quashed by the Court of Appeal, holding that natural justice demanded the giving of reasons both in deciding whether dismissal was unfair and in assessing compensation. In England, a series of cases have held that statutory tribunals must give satisfactory reasons so that the losing party may know whether to exercise the right of appeal on a point of law (see also Nortan Tool Co. Ltd. v. Tewson, [1973] WLR 234)., It is suitably established in India that an adjudicatory authority is required to give reasons for its decision. The Supreme Court in Siemens Engineering and Manufacturing Co. v. Union of India, AIR 1976 SC 1785, reiterated that the rule requiring reasons to be given in support of an order is a basic principle of natural justice, which must inform the quasi‑judicial process. The Court observed that mere pretence of compliance with this rule would not satisfy the requirement of law. In Maneka Gandhi v. Union of India, AIR 1990 SC 1984, it was held that giving reasons is a healthy check against abuse or misuse of power. The duty to give reasons was further crystallised in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, and the reasons for a reasoned decision were discussed. The Court observed that a reasoned decision: (i) guarantees consideration by the authority; (ii) introduces clarity in decisions; and (iii) minimises chances of arbitrariness in decision‑making, thereby ensuring fairness. The Court further held that the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi‑judicial functions, irrespective of whether the decision is subject to appeal, revision or judicial review. The reasons need not be as elaborate as those in a court judgment; their extent and nature depend on the particular facts and circumstances, but they must be clean and explicit to indicate that the authority has given due consideration to the points in controversy., The Supreme Court in Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney & others, (2009) 4 SCC 496, held that the purpose of disclosure of reasons is that people should have confidence in judicial and quasi‑judicial authorities and minimise chances of arbitrariness. The Court observed that unless reasons are disclosed, a person cannot know whether the authority has applied its mind. Giving reasons therefore is an essential requirement of the rule of law, and some reasons, at least in brief, must be disclosed in a judicial or quasi‑judicial order, even if it is an order of affirmation., The Supreme Court in Namit Sharma v. Union of India, (2013) 1 SCC 745, regarding the duty to give reasons, held that it is a solemn duty of every adjudicatory body, including tribunals, to state the reasons in support of its decisions. Reasoning is the soul of a judgment and embodies one of the three pillars on which the foundation of natural‑justice jurisprudence rests. It informs the claimant of the basis for rejection of his claim and provides grounds for challenging the order before a higher authority. The reasons enable the authorities before whom an order is challenged to test the veracity and correctness of the impugned order. As the distinction between administrative and quasi‑judicial bodies becomes faint, even administrative bodies are required to pass reasoned orders. Relevant judgments include Siemens Engineering & Manufacturing Co. of India Ltd. v. Union of India & Anr., [(1976) 2 SCC 981] and Assistant Commissioner, Commercial Tax Department Works Contract and Leasing, Kota v. Shukla & Brothers [(2010) 4 SCC 785]., Any authority conferred with discretionary power must exercise that power after applying its mind to the facts and circumstances of the case. The authority should not act mechanically in the exercise of discretion.
id_823	2	The Supreme Court of India in East Coast Railway v. Mahadev Appa Rao, (2010) 7 SCC 2794 observed that every order passed by a public authority must disclose due and proper application of mind by the person making the order., The petitioner is not convicted in any criminal case registered against him by various FIRs; therefore it was mandatory for respondent No. 2 to give adequate reasons before granting approval on 30 March 2022. The Division Bench of the Delhi High Court in Sarjeet Singh observed that it is not necessary for the court to consider whether the person has been convicted, but there must be proper satisfaction of the concerned officer before the name of a person is entered in the history sheet. Under Rule 23.5(2), if from the entries in the history sheet the Superintendent of Police is of the opinion that such person should be subjected to surveillance, he shall enter the name in Part II of the register, provided that the name of a person who has never been convicted or placed on security for goods behaviours shall not be entered until the Superintendent has recorded the definite reasons for doing so. In this process, before making a departure in cases where there is no conviction recorded, special reasons have to be recorded., In Jarnail Singh v. State of Haryana and another, 1997 (2) All India Criminal Law Reporter 834, the name of the person was entered in the surveillance register although he had already been acquitted of criminal conspiracy and was not a habitual offender; there was no warrant for showing him as a history sheeter and the order was quashed. In Kanwarjit Singh v. State of Haryana and others, 1997 (3) All India Criminal Reporter 494, the Superintendent of Police had not recorded any reason nor was the petitioner shown to be a previous convict for offences contemplated under Rule 23.9 of the Rules. The Punjab and Haryana High Court set aside the order, holding that there was no reason recorded by the Superintendent of Police nor was the petitioner shown to be convicted twice for offences contemplated under Rule 27.29 of the Rules, and therefore there was no justification in the order., The perusal of the History Sheet file No. 89A pertaining to the petitioner reflects that initially respondent No. 4 applied his mind before making the proposal and subsequently respondent No. 2, after considering the report of respondent No. 4 and respondent No. 3, accorded approval after due application of mind. The History Sheet further shows that the concerned authorities gave definite, appropriate and adequate reasons before processing and granting approval for entering the name of the petitioner in Register‑X, Part‑II, Bundle A. It cannot be said that the approval given by respondent No. 4 on 30 March 2022 was without application of mind; the approval was accorded by respondent No. 2 on the recommendation of respondent No. 4 and respondent No. 3 after compliance with the Rules. There is no force in the argument advanced by the learned counsel for the petitioner that the approval was given by respondent No. 2 without definite, justifiable and adequate reasons., The learned counsel for the petitioner argued that the petitioner was never convicted in any criminal case and that fourteen of the eighteen cases registered against him resulted in acquittal, compounding, discharge or quashing, so there was no occasion for respondent No. 2 to accord approval on 30 March 2022. He further argued that the petitioner is not a habitual offender and there was no reason to believe otherwise, referring to Sarjeet Singh. The learned Additional Solicitor General for the respondents argued that the cases registered against the petitioner were from 2016 to 2022 and pertain to the area of Jamia Nagar, where the petitioner is an elected representative, and that the petitioner is a habitual offender., A habitual criminal offender can be referred to a person who has been previously convicted of one or more crimes and is currently facing new charges. The coordinate Bench of the Delhi High Court in Amrik Singh v. Commissioner of Police, 1987 (13) DRJ 206, observed that a habitual offender or a person habitually addicted to crime is one who is a criminal by habit or disposition formed by repetition of crimes. Reasonable belief of the police officer that the suspect is a habitual offender is sufficient to justify action under these rules, but the belief must be reasonable and based on reasonable grounds (Dhanji Ram Sharma v. Superintendent of Police, North District, Delhi Police and ors., 1766)., Applying the said principles to the facts of the present case, it can be said that the respondents acted in haste and slipped badly in bringing the name of the petitioner on Bundle A and in the Surveillance Register. Along with the counter‑affidavit, the respondent filed a list of fifteen cases in which the petitioner was involved, relating to the period from 2 April 1962 to 19 August 1985. In the first twelve cases, the petitioner was either discharged or acquitted after trial. Except in one case of 1977, where on his confession he was directed to pay a fine of Rs 100 under Section 114 of the Indian Penal Code, the remaining four cases are pending trial. There was a gap of more than five years between the first two cases and another gap of three years preceding each of the succeeding three cases. Till March 1975, he faced charges in eight cases, resulting in discharge in six cases and acquittal in the remaining two., A Division Bench of the Delhi High Court in Mohd. Anis v. Commissioner of Police and others, 1993 (1) Chandigarh Criminal Case 545, which is also referred to in Sarjeet Singh, concluded that the order of opening a History Sheet and surveillance is a precautionary measure and must be based on past conduct in the light of surrounding circumstances. The past conduct must be of such a nature that an inference can be drawn that the person concerned is habitually addicted to crime. The expression ‘habitual’ was held to mean repeatedly or persistently, and the ingredients for such a finding were not satisfied. The order was quashed, observing that a solitary case registered almost six years before the impugned order could not persuade any reasonable person that the petitioner was habitually addicted to crime, as there was no material to show persistent engagement in a series of criminal acts and the cases were too remote in time and ended in acquittal or discharge., Another Division Bench of the Delhi High Court in Sarjeet Singh observed that it is not necessary for the person concerned to be convicted of certain offences, but in that event a reason must be recorded specifically to bring the name of such a person in the registers., The learned counsel for the petitioner also referred to Deepak Solanki @ Sansar v. State & Others, Writ Petition (Criminal) 14/2005 decided on 03 July 2009 by the coordinate Bench of the Delhi High Court, wherein it was held that it is easy to label a person a ‘habitual offender’ or a person ‘addicted’ to crime, but when such a decision is challenged, the authorities must satisfy the court that the decision was based on relevant material and that no relevant material was excluded. The Supreme Court in Gopalan Chari v. State of Kerala (1981) 1 SCR 1271 observed that expressions like ‘by habit’, ‘habitual’, ‘desperate’, ‘dangerous’, ‘hazardous’ cannot be flung in the face of a man without specificity of facts, and that the court must insist on concrete evidence before depriving personal liberty., It is correct that the petitioner is not a previous convict and that in most of the cases registered against him the petitioner was discharged, acquitted, the offences were compounded or the FIR was quashed. However, the recommendation dated 28 March 2022 proposed by respondent No. 4 and the recommendation dated 29 March 2022 made by respondent No. 3 are duly and appropriately coupled with adequate and sufficient reasons. Subsequently, respondent No. 2 accorded approval on 30 March 2022 after proper application of mind. There is no legal or factual force in the arguments advanced by the learned counsel for the petitioner that the petitioner, being not a previous convict, cannot be placed under surveillance after his name is entered in Register X, Part II, Bundle A., The learned counsel for the petitioner also argued that the petitioner was arrested on 12 May 2022 by the police in pursuance of FIR No. 246/2022 registered under sections 147, 148, 149, 186, 353, 332, 153 IPC, and was to be produced before the Metropolitan Magistrate on 13 May 2022, when his bail application was fixed for hearing. On 13 May 2022, the petitioner learned from social media that respondent No. 4 on 28 March 2022 had already submitted a dossier to respondents No. 3 and No. 4 along with a proposal for opening a History Sheet and placing his name in Register X, Part II, Bundle A for close surveillance. The proposal, which was required to be confidential under Rule 23.5, was circulated and leaked in a pre‑planned manner on 13 May 2022 before consideration of his bail application, and the spokesperson of a rival political party also referred to the dossier on social media. The respondents, in their Status Report, have refuted these allegations., The learned counsel for the petitioner further argued that the petitioner’s reputation deserved preservation by the police and that the police deliberately placed the dossier and proposal in the public domain, as the facts were not placed before the Metropolitan Magistrate at the time of consideration of the bail application. He relied upon Peter Samuel Wallace v. Inspector General of Police, New Delhi & Others, (1981) 20 DLT 333, where a coordinate Bench of the Delhi High Court observed that the petitioner’s complaint that the police leaked information about his bad character, which was also published by the press, was unsubstantiated and led to the conclusion that continuation of the petitioner’s history sheet was improper., Rule 23.5 deals with entries to be made in the surveillance register and further provides that ordinarily a History Sheet shall be opened for a person before his name is entered in Part II of the Surveillance Register. The Superintendent of Police is required to record definite reasons once a person is subjected to surveillance on the basis of entries made in the History Sheet if the person is not convicted in the past. The record of the reason shall be treated as confidential and the concerned person shall not be entitled to a copy of the reasons. Although the dossier and recommendation dated 28 March 2022 and the subsequent approval by respondent No. 2 may not have been placed before the Metropolitan Magistrate on 23 May 2022 at the time of the bail consideration and might have been leaked in the public domain, there is no evidence or material on record indicating that the dossier and subsequent approval were leaked by the Delhi Police. The arguments advanced by the learned counsel for the petitioner are without factual basis., It was observed by the Division Bench of the Delhi High Court in Sarjeet Singh that the principle of judicial review is a basic structure of the Constitution. If an order is violative of the Rules and the Act, is without application of mind or is mala fide, the court would not hesitate to set aside such an order. The Supreme Court in Amarendra Kumar Pandey v. Union of India & Others, 2022 Live Law (SC) 600, observed that action based on subjective opinion or satisfaction can be judicially reviewed to find the existence of facts or circumstances on which the authority is alleged to have formed the opinion. The court should not inquire into the correctness of facts unless the facts found are unsupported by any evidence or the finding is so perverse that no reasonable person would say the facts exist. The doctrine of reasonableness may be invoked where there are no reasonable grounds for the formation of the authority’s opinion., It is apparent from the record that respondent No. 4, at the time of making the recommendation for opening the History Sheet, entering the name of the petitioner in Register X, Part II, Bundle A and keeping surveillance on his activities, followed the Rules and gave sufficient reasons in support of his recommendation. Respondent No. 3 also forwarded the recommendation made by respondent No. 4 to respondent No. 2 for approval after applying his mind and considering the necessary facts. Respondent No. 2 considered and recorded sufficient and adequate reasons before granting approval for entering the name of the petitioner in Register X, Part II and placing his History Sheet in Bundle A. The concerned authorities followed due procedure of law and complied with the mandatory requirements of the Rules in a reasonable manner. The approval given by respondent No. 2 was just, fair and reasonable, not based on any personal prejudice or predilection, and was not contrary to the strict provisions of the Rule. There was no mala fide exercise of discretion by respondent No. 2 while granting the approval on 30 March 2022., The petition filed by the petitioner, the Status Report submitted by the respondents, and the arguments advanced on behalf of both parties along with the referred case law were considered. The present petition is devoid of any merit and is therefore dismissed. However, the petitioner shall be at liberty to make a representation for deletion or cancellation of his name from Surveillance Register X in accordance with the Rules and law, which shall be decided by the respondents without any delay., The present petition, along with any pending applications, stands disposed of.
id_824	0	Versus Appearance: Mr Ashish M Dagli (2203) for the Applicants No. 1 and 2, and Mr Jay V Ajmera (10517) for the Respondent No. 1. Date: 05/10/2020. Pursuant to the order dated 24 September 2020, the advocate Mr Ajmera deposited Rs 10,000 before the Registry of the High Court of Gujarat. He appeared today through video conferencing, tendered an unconditional apology and stated that he would not repeat the act. The Registrar, Judicial, also tendered his exhaustive report dated 04 October 2020, which I have perused. The report is forwarded to the Bar Council of Gujarat and the Bar Association of the High Court of Gujarat for their perusal., The Supreme Court, in the case of In Re Vs Vinay Chandra Mishra reported in 1995 (2) SCC 584, observed: “A lawyer has to be a gentleman first. His most valuable asset is the respect and goodwill he enjoys among his colleagues and in the Court.” In the case of R. D. Saxena vs Balram Prasad Sharma, 2000 (7) SCC 264, the Court observed: “While dealing with money or any other article or document entrusted, an advocate is expected to always keep in mind the high standards of the profession and its values adopted and practiced for centuries. ‘Professional obligations’ of a lawyer are distinguished from the ‘business commitments’ followed by the trading community. The legal profession owes social obligations to society in discharge of professional services to litigants.”, The Bar Council of India Rules state: “An advocate shall at all times compose himself in a manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for a member of the Bar in his non‑professional capacity may still be improper for an advocate.”, In the case of Devendra Bhaishanker Mehta vs Union of India, 1993 (1) G. L. H. 36, the Court observed: “To say the least, an advocate enrolled under the Advocates Act, 1961, having a licence to represent litigants is expected to maintain a high standard of morality and an unimpeachable sense of legal and ethical propriety.”, Although I cannot direct the Bar Council of Gujarat or the Bar Association of the High Court of Gujarat to undertake a colloquium for their members, I hope that the foregoing observations of the Apex Court are conveyed so that such inopportune and regrettable incidents can be avoided. The Apex Court has addressed the lawyer as a gentleman who must maintain high standards of morality and an unimpeachable sense of legal and ethical propriety. With the aforementioned observations, the High Court of Gujarat closes the undesirable chapter with the hope that such incidents will not occur in the future. It is clarified that forwarding the Registrar’s report and the observations of this Court shall not be construed as adverse against Advocate Mr Ajmera. His apology is accepted by the High Court of Gujarat with no hard feelings or malice. I advise him to be mindful of the observations of the Apex Court as he continues his professional journey., The learned advocates for the respective parties were heard through video conferencing. The application is filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with the FIR registered as Crime Reference Number 11193053200692 of 2020 with Savarkundla Rural Police Station, District Amreli, for offences punishable under Sections 406, 409, 420, 465, 467, 471, 120B and 34 of the Indian Penal Code, 1860., The learned advocate for the applicant submitted that the allegations are vague, the applicant has been falsely implicated, and that he was arrested on 18 August 2020 and has been incarcerated since then. He stated that the case is based on documentary evidence already collected, that the FIR was filed belatedly after five years of the alleged incident without satisfactory explanation for the delay, and that the applicant has no antecedent. The learned Additional Public Prosecutor appearing for the respondent‑State opposed the grant of regular bail, citing the nature and gravity of the offence. Both parties did not press for a further reasoned order., The Court considered the following aspects: (i) the applicant has been in custody since 18 August 2020; (ii) the investigation is ongoing and the charge‑sheet has not been filed; (iii) there appears to be a delay in lodging the FIR, as the complainant was aware of the transaction and a notice dated 01 November 2018 was issued by ICICI Bank; (iv) prima facie no criminal antecedents are pointed out against the applicants. The Court also took into consideration the law laid down by the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, [2012] 1 SCC 40. Having regard to the submissions and the facts and circumstances, and considering the nature and gravity of the accusation, the Court is of the view that discretion should be exercised in favour of the applicants for the grant of bail. The applicants assure that they will abide by any terms and conditions imposed by the Court and will not commit any breach., The Court is persuaded to exercise its discretion in favour of the applicants. The investigation is ongoing and the charge‑sheet is not filed; the trial is likely to take a considerable period of time. Accordingly, the application is allowed. The applicants are ordered to be released on regular bail in connection with Crime Reference Number 11193053200692 of 2020 with Savarkundla Rural Police Station, District Amreli, upon execution of a personal bond of Rs 10,000 (Ten Thousand) each with two sureties of like amount to the satisfaction of the trial Court, subject to the following conditions: (a) not to take undue advantage of liberty or misuse liberty; (b) not to act in a manner injurious to the interest of the prosecution, not to obstruct or hamper the police investigation, and not to tamper with evidence; (c) surrender passport(s), if any, to the trial Court within one week; (d) not leave the State of Gujarat without prior permission of the trial Court; (e) appear before the concerned Police Station once a month for six months between 11.00 a.m. and 2.00 p.m.; (f) furnish the present residential address to the Investigating Officer and to the Court at the time of execution of the bond and not change residence without prior permission of the trial Court., The authorities will release the applicants only if they are not required in connection with any other offence at the time. If any of the above conditions are breached, the Sessions Judge concerned may issue a warrant or take appropriate action. The bail bond is to be executed before the lower Court having jurisdiction to try the case. The concerned Court may delete, modify or relax any of the conditions in accordance with law. At trial, the trial Court shall not be influenced by the preliminary observations made by this Court while granting bail. The application is allowed in the aforesaid terms. The order is absolute to the aforesaid extent. The Registry is directed to intimate the concerned jail authority and the concerned Sessions Court about the present order by sending a copy through fax, email or any other suitable electronic mode. The learned advocate for the applicant is also permitted to send a copy of this order to the concerned jail authority and the concerned Sessions Court through fax, email or any other suitable electronic mode.
id_826	0	Petitioner Through: Dr. Amit George, Advocate versus Respondent Through: Mr. Santosh Kumar Tripathi, Senior Counsel, Government of National Capital Territory of Delhi, with Mr. Arun Panwar, Mr. Kartik Sharma, Mr. Rishabh Srivastava and Ms. Prashansa Sharma, Advocates., This Public Interest Litigation is brought before us by the Delhi High Court Legal Services Committee. It addresses the pressing issue of supply of clean drinking water and maintaining hygienic sanitary conditions within the Tihar Jail Complex., The Petitioner draws our attention to a concerning report, stemming from an inspection conducted by a panel counsel. The investigation underscores a worrying deficiency in providing inmates with drinking water in the Tihar Jail Complex. Additionally, the sanitary conditions are described as less than satisfactory. The state of washrooms and toilets is particularly concerning; many are in disrepair, and even the basic privacy of inmates is compromised due to broken doors, hampering their ability to maintain personal hygiene in private., On 17th April 2023, the representative for the Government of National Capital Territory of Delhi updated the Delhi High Court that initiatives to enhance the basic amenities in Tihar Jail are underway, evidenced by the recent issuance of a work order., Contrary to the government's assertion, Dr. Amit George, the counsel for the Delhi High Court Legal Services Committee, submits a starkly different picture. He argues that they have been inundated with complaints from Tihar Jail inmates, who claim an alarming scarcity of basic necessities like clean drinking water and proper sanitation facilities. Supporting this claim, he insists that there has been no discernible improvement in the living conditions within Tihar Jail., The report and accompanying photographs clearly reveal that inmates are bereft of essential amenities, including safe drinking water and functional toilets. Rule No. 425 of the Delhi Prison Rules, 2018, mandates that every inmate should have uninterrupted access to fresh drinking water at all times. These rules emphasize the importance of not only providing inmates with clean water but also ensuring a well‑maintained sanitation system and washroom facilities. The Supreme Court, in the case of State of Andhra Pradesh v. Challa Ramkrishna Reddy and Others [(2000) 5 SCC 712], has poignantly remarked that the right to life stands paramount among human rights. As enshrined in Article 21 of the Constitution of India, this right remains inviolable, irrespective of an individual's incarcerated status. A prisoner's basic constitutional rights persist even behind bars. Therefore, any measures restricting an individual's freedom must not infringe upon their inherent dignity and rights., Recognizing the pressing nature of this issue, we deem it necessary to authorize an independent committee for a meticulous inspection of Tihar Jail. To this end, we establish a Fact‑Finding Committee consisting of Dr. Amit George, Mr. Santosh Kumar Tripathi, Ms. Nandita Rao, and Mr. Tushar Sannu. Their mandate is to impartially evaluate the present conditions and update us on the status of drinking water, sanitation, overall hygiene, and the maintenance of washrooms and toilets within the complex., The Director General (Prison) of Tihar Jail is directed to facilitate the Committee's work, providing all requisite resources and support to enable a thorough examination of the jail premises., A detailed status report from both the Committee and the Government of National Capital Territory of Delhi is anticipated before our subsequent hearing.
id_827	0	WP(C) Number 665 of 2023 Sri Tarun Chakma, Petitioner(s) versus the State of Tripura and twenty‑seven others, Respondent(s)., For the petitioner: Mr. S. Kar Bhowmik, Senior Advocate; Mr. E. L. Darlong, Advocate; Mr. S. Bal, Advocate; Ms. P. Das, Advocate. For the respondents: Mr. S. S. Dey, Advocate General; Ms. A. Chakraborty, Advocate., Heard: Mr. S. Kar Bhowmik, learned senior counsel assisted by Mr. E. L. Darlong, Mr. S. Bal and Ms. P. Das, learned counsel appearing for the petitioner; also heard Mr. S. S. Dey, learned Advocate General assisted by Ms. A. Chakraborty, learned counsel appearing for the respondents‑State. By filing the instant writ petition, the petitioner has complained that the organisations namely Uttar Andharcharra Chakma Samajik Bichar Committee and Kanchancherra Chakma Samajik Bichar Panchayat and related members of Bichar Committees have castigated the petitioner as anti‑social and outcasted him from the Chakma community, amounting to serious religious persecution since the petitioner embraced Christianity on 04.11.2022. A show‑cause notice was issued to the petitioner as to why he professed Christianity. Thereafter, through some proceedings, the Bichar Committee of the aforesaid organisations passed an order declaring him anti‑social, outcasting him and depriving him of socialising, mixing and interacting with the members of the Chakma community. A public campaign was launched against the petitioner, warning members of the Chakma community to isolate him and his family. The Bichar Committees further warned not to cooperate with the petitioner in any manner whatsoever. The petitioner is an auto‑driver and it was warned that no members of the Chakma community would board or use his auto‑rickshaw for transportation., Mr. Dey, learned Advocate General appearing for the respondents‑State, submitted that the Officer‑In‑Charge of Pecharthal Police Station and the State Administration have become aware of this fact and have taken action to normalise the situation and mitigate the matter. He also submitted that two meetings were held between members of the Christian and Buddhist communities and that the situation is presently under control., According to Mr. Kar Bhowmik, learned senior counsel for the petitioner, respondents numbered eight to twenty‑eight have taken an active role in committing illegal activities that are against the ethos of the Constitution as well as the Chakma Customary Laws Code, 1997, promulgated by the State of Mizoram and ordinarily followed by the Chakma community in the State of Tripura. Prima facie, I find serious illegalities and unconstitutional activities on the part of respondents eight to twenty‑eight. They are violating the Indian Constitution and attempting to infringe the fundamental rights of the citizens of India. The members of the Chakma community, particularly respondents eight to twenty‑eight, must remember that India is a secular country and every person has the fundamental right to preach, profess and choose his own religion. No one can invade such a right., In view of this, I direct respondents eight to twenty‑eight to refrain from committing such illegal and unconstitutional activities against any member of their community and to respect the Indian Constitution. The notices and the impugned orders of religious persecution and outcasting of the petitioner, as passed by respondents eight and nine, shall remain stayed until further order. Respondents one to seven are directed to take stern action against those Samajpatis or self‑styled headmen and members of the Chakma community who indulge in such unconstitutional activities. The State Administration is also directed to take action against any members of any community to protect the spirit and ethos of the Indian Constitution. The State Administration shall not hesitate to arrest any members of any community who indulge in unlawful activities and violate the provisions of the Indian Constitution. The State Administration is requested to submit an action‑taken report through affidavit., Issue notice calling upon the respondents to show cause as to why a rule should not be issued as prayed for, and/or as why further or other orders should not be passed as this court may deem fit and proper. Notice is made returnable on 29.11.2023. Since Ms. A. Chakraborty, learned counsel, appears and accepts notice on behalf of respondents one to seven, issuance of formal notice is waived. The petitioner shall take steps for causing service of notice upon the remaining respondents by registered post with acknowledgment of delivery within three days.
id_828	0	Date of decision: 11.04.2022. Writ Petition (Civil) 3667/2022 & Court of Municipal Application 10870/2022 (interim directions). Writ Petition (Civil) 3822/2022 & Court of Municipal Application 11357/2022 (stay). Writ Petition (Civil) 3842/2022 & Court of Municipal Application 11402/2022 (interim relief). Writ Petition (Civil) 3866/2022 & Court of Municipal Application 11513/2022 (stay). Writ Petition (Civil) 4363/2022 & Court of Municipal Application 13024/2022 (directions)., Appearance: For petitioners: Mr. Ashok Agarwal, Mr. Kumar Utkarsh and Mr. Manoj Kumar, Advocates; Mr. Sandeep Deshmukh, Mr. Nishant Sharma and Mr. Rakesh K. Sharma, Advocates in Writ Petition (Civil) 3822/2022; Mr. Ajeet Yadav, Advocate in Writ Petition (Civil) 3842/2022; Dr. Jugesh Aspal, Advocate in Writ Petition (Civil) 3866/2022; Mr. Subhash Chandran K. R., Ms. Yogamaya M. G. and Mr. Subhash T. M., Advocates in Writ Petition (Civil) 4363/2022. For respondents: Mr. Chetan Sharma, Additional Solicitor General with Mr. Apoorv Kumar, Chief General Secretary, Mr. S. Rajappa, Mr. Gowrishankar, Mr. Amit Gupta, Mr. Sahaj Garg, Mr. Rishav Dubey, Mr. Mohit Prasad, Mr. Jitendra Kumar Tripathi, Advocates; Mr. Rishikesh Kumar, Additional Solicitor General, Government of National Capital Territory of Delhi with Ms. Sheenu Priya and Mr. Sudhir Shukla, Advocates for Respondent 3., The petitioners, who are about five years old but have not yet completed six years as on 31 March 2022, have approached the Supreme Court of India assailing the admission criteria for the academic year 2022‑23 issued by the Kendriya Vidyalaya Sangathan (KVS) on 24 February 2022, which prescribes the minimum age for admission to Class I as six years or above., On 24 February 2022, the respondent No.1 issued guidelines for admission to all KVS schools with effect from the academic year 2022‑23. According to these guidelines, a child must be six years old as on 31 March of the academic year in which admission is sought to Class I. This newly introduced criterion superseded the earlier criterion, which permitted children who were five years or more as on 31 March of the relevant academic year to apply for admission to Class I. The petitioners, who will turn six years on or after 1 April 2022 and are therefore ineligible to apply for Class I as per the impugned guidelines, have approached the Supreme Court of India., At the very outset, it may be noted that although the petitioners initially sought quashing of the guidelines with a direction to the respondents to reframe them, during the course of arguments they confined their relief only to this academic year. Their grievance therefore relates primarily to the issuance of these guidelines increasing the minimum age for admission to Class I by one year just before the start of the academic year, which they contend is wholly arbitrary., In support of the petition, submissions have been made by Mr. Ashok Agarwal, Dr. Jugesh Aspal, Mr. Rakesh K. Sharma and Mr. Subhash T. M., Learned counsel for the petitioners submit that although all over Delhi children aged five years or above are eligible to apply for admission to Class I, the respondents introduced the impugned criterion purportedly on the basis of the National Education Policy, 2020 (NEP 2020) without appreciating that any such change should be introduced in a phased manner with adequate notice to all concerned stakeholders. They contend that the NEP, issued in 2020, is yet to be made applicable in a number of states and union territories across the country. Since none of the other schools in Delhi are following the NEP 2020, the KVS, even if it is a special category of school, ought to have ensured that adequate notice was given to all eligible students before introducing the eligibility criterion of six years for admission to Class I., Mr. Ashok Agarwal, learned counsel for the petitioners, submits that without prejudice to his plea that the NEP 2020 does not prescribe that the minimum age for admission to Class I should be six years, this criterion, which is still to be introduced in all other schools in Delhi, could not have been suddenly brought into force by the KVS. He contends that when all other schools in Delhi are still following the five‑year age criterion for entry to Class I, the respondents’ action in following the six‑year age criterion would create two different age groups for admission to Class I in Delhi. This, he argues, is wholly arbitrary and irrational and therefore prays that till the NEP 2020 is introduced in all schools across Delhi, the respondents be also directed to follow the age criterion of five years for admission to Class I., Learned counsel for the petitioners submit that notwithstanding the fact that the impugned guidelines are contrary to the Delhi School Education Act and Rules, 1973 as well as the report of the Ganguly Committee, all the petitioners have been taken by surprise by the impugned guidelines at this belated stage when admissions to most other schools in Delhi have already been completed. They therefore contend that the guidelines are liable to be set aside on this ground alone. The petitioners, who were keen to join KVS, have been left remediless and would be compelled to wait for one more year for admission to Class I. In support of their plea, they rely on a decision of this Court in Suman Mishra v. Government of NCT of Delhi (2016) 227 DLT (CN) 19 and on the decision of the Apex Court in Mahabir Auto Stores v. India Oil Corporation (1990) 3 SCC 752., Mr. Agarwal further submits that the impugned admission guidelines violate Article 21A of the Constitution, which guarantees the right to free and compulsory education. By relying on the decision of the Division Bench of this Court in Social Jurist A Civil Rights Group v. Union of India and Others (2007) SCC Online Del 1515, he submits that Article 21A merely stipulates free and compulsory education to all children between the ages of six and fourteen years but does not prescribe any minimum age for admission of a child in a school., He also submits that even as on date, a number of schools run under the aegis of the Central Government have been permitting children aged five years and above to apply for admission to Class I for the academic year 2022‑23. For this purpose he places reliance on the admission notice issued by the Army Public School, Bangalore and by the Vikram Sarabhai Space Centre, Thiruvananthapuram. It is the respondents’ own case that, in order to ensure effective implementation of the NEP 2020, a roadmap of two to three years has been provided so that the policy can be implemented across the country in a phased manner by first introducing the requirement for the child to attend pre‑primary class from the age of three years, which has admittedly not been done till date. He therefore contends that the NEP 2020 could have been made applicable only to children who had completed their pre‑primary education and not to children like the petitioners., Dr. Jugesh Aspal, learned counsel for the petitioner in Writ Petition (Civil) 3866/2022, submits that since the NEP 2020, on which the impugned guidelines are based, contains contradictory clauses, the respondents ought not to have issued the impugned guidelines in purported implementation of the NEP without reconciling clauses 1.6 and 4 of the NEP 2020. According to him, while Clause 1.6 suggests that children aged five years and above are eligible for admission to Class I, Clause 4 suggests otherwise., They therefore submit that grave prejudice will be caused to all the petitioners as they will lose one full academic year if the impugned guidelines are implemented from this year. Moreover, they would be placed in a disadvantageous position compared to those children who were born in the same year and have already taken admission in other schools in Delhi. They pray that the respondents be directed to permit the petitioners to apply for admission to Class I in the academic year 2022‑23., Per contra, the learned Additional Solicitor General appearing on behalf of the respondents submits that the petitioners, having not challenged the NEP 2020, cannot be permitted to urge that the policy should not be implemented from this academic session merely because other schools in Delhi are yet not following the same. By drawing attention to Section 2(p) of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act, 2009), he submits that the KVS are a distinct category of schools catering mainly to the needs of Central Government employees, including defence personnel who have transferable jobs, and therefore an urgent need was felt to ensure that the NEP, already being followed in twenty‑one states across the country, is also introduced in the KVS at the earliest., He next submits that the petitioners’ plea that the impugned criteria violate the provisions of the Delhi School Education Act and Rules, 1973 and the report of the Ganguly Committee is wholly misconceived, as neither the provisions of the Delhi School Education Act and Rules, 1973 nor the Ganguly Committee are applicable to the KVS, which are a special category of schools running across the country. In support of his plea, he relies on the decision of this Court in Writ Petition (Civil) 3774/2007 titled Neeti Singh Malik v. Union of India, wherein it was held that KVS, being an autonomous body that lays down standards of education to be followed uniformly in all its schools, is outside the purview of the Delhi School Education Act and Rules, 1973., He therefore contends that KVS have a distinct characteristic of their own and are highly sought‑after institutions where a large number of students apply for admission every year. These schools are pace‑setting institutes catering to the needs of a large number of students across the country and therefore have to be at the forefront of implementing new policies and regulations. He submits that the decision of the KVS to implement the NEP from this academic session is fully justified. The petitioners, who were always aware that the new education policy being implemented in the country would be introduced in the KVS as well, cannot now contend that they have been taken by surprise., He further submits that the rationale behind the decision in the NEP 2020 to increase the age for admission to Class I from five to six years was taken by experts to ensure that the development of the child is at par with the class in which he or she is admitted. Moreover, such a change was also necessitated to bring a uniform minimum age for admission to Class I throughout the country, as a disparity was found across various states and union territories. He states that the decision was not taken in haste but after extensive deliberations with stakeholders and after taking into account the needs and overall development of the children., The learned Additional Solicitor General then submits that the impugned criteria do not deprive admission to age‑appropriate classes and therefore the petitioners are not deprived of admission to the KVS. In fact, the only effect of the impugned guidelines is that the petitioners would be eligible to apply for admission in the next academic year, and therefore no irreparable loss or prejudice will be caused to the petitioners. Moreover, in response to the impugned circular, the KVS has already received about seven lakh applications against one lakh seats, of children aged between six and seven years for admission to Class I, a number expected to increase till the closure of the registration process. He submits that if children of five years are now considered for admission, it would create three age groups for admission to Class I, resulting in heterogeneity of the class and discrimination against candidates who had already applied. He therefore submits that permitting such a course of action would require a complete overhaul of the academic programme and other formalities, leading to chaos. He also places reliance on the decision of the Andhra Pradesh High Court in M. Sireesha (Smt.) & Others v. Commissioner, Kendriya Vidyalaya Sangathan, New Delhi & Others (1998) SCC Online AP 315, where the court declined to interfere with the raising of the minimum age for admission to Class I introduced just before the beginning of the academic session. He contends that the balance of convenience is against the petitioners., The learned Additional Solicitor General submits that the admission criteria of the KVS are not in violation of the provisions of the RTE Act, 2009 but are in harmony with the Act. He submits that Section 3 of the Act mandates that every child aged between six and fourteen years has a right to free and compulsory education in a neighbourhood school till the completion of elementary education. Elementary education, as defined under Section 2(f) of the Act, means education from Class I to VIII. He thus submits that even the RTE Act 2009 stipulates the age of admission to Class I as six years., By placing reliance on the decision of the Apex Court in P. Suseela & Others v. University Grants Commission (2015) 8 SCC 129, he submits that it is not as if the petitioners’ admission to the KVS is being taken away. The petitioners had only applied for admission with a legitimate expectation of being admitted to the KVS, and a vested right would have accrued only if they had actually been granted admission. In the present case the petitioners do not have any crystallised right of admission in KVS and would still be eligible for admission in the next academic year. He also relies on the decision of the Madhya Pradesh High Court in Kendra Vidyalaya No.1, Rewa v. Ayan Abdullah Usmani & Others (2019) SCC Online MP 4388, wherein the Division Bench, referring to the decision of the Apex Court in Regional Officer, CBSE v. Ku. Sheena Peethambaran & Others (2003) 7 SCC 719, emphasized that no interim orders for grant of admission of students who are ineligible as per the prescribed criteria should be issued., Before considering the rival submissions, it may be noted that on 5 April 2022, when the petition was taken up for consideration, learned counsel for the petitioners submitted that they were neither assailing the NEP nor its implementation by respondent No.1 but were restricting their challenge to the belated changes in the admission criteria issued by respondent No.1. I am therefore confining this decision to the consideration of the petitioners’ plea that the introduction of the changed age criterion on 24 February 2022 from five to six years for admission to Class I for the academic session 2022‑23 can be said to be belated, arbitrary and liable to be set aside on this ground alone., Having given thoughtful consideration to the submissions of the parties, even though I find merit in the petitioners’ plea that the change in age criterion brought about by the impugned guidelines on 24 February 2022 was a little late, the fact remains that the same does not in any manner debar the petitioners from seeking admission in KVS; it only postpones their right to seek admission to the next academic year. The respondents have urged that this change was necessitated to ensure that the NEP, formulated after extensive consultations with experts, is made applicable across the country at the earliest., No doubt, the policy formulated in 2020 is yet to be implemented across schools in Delhi, despite having been already implemented in twenty‑one states. However, the RTE Act, 2009 places the KVS in a separate category, and all branches of KVS across the country, being run by the same management, are obliged to follow uniform criteria. The anxiety of the KVS to introduce the age criterion of six years in accordance with the NEP 2020 is therefore understandable. I may also note that during arguments, the fact that, as held in Neeti Singh Malik (supra), the Delhi School Education Act and Rules, 1973 are not applicable to the KVS, was not seriously disputed by the learned counsel for the petitioners, and therefore there is merit in the respondents’ plea that the KVS was obligated to adopt a uniform criterion for admissions in all its branches across the country., Since the NEP 2020 is not under challenge, the respondents’ plea that the minimum age of six years for admission to Class I, as laid down in the policy to ensure that the development of the child is commensurate with the class in which he or she is admitted, needs to be accepted. Once a conscious and well‑considered decision has been taken by experts that the entry age for admission to Class I should be six years, this Supreme Court of India cannot and should not interfere with that decision. Merely because some inconvenience is caused to the petitioners, who will have to wait for the next academic year to apply for admission to the KVS, cannot be a ground to direct the KVS to make an exception for its schools located in Delhi. Any such direction would have a rippling effect on the age criteria applicable to KVS schools situated across the country, including states wherein the NEP 2020 has been implemented and consequently the minimum age for admission to Class I has been fixed as six years in all schools in those states., The petitioners’ plea that the age criterion of five years is still continuing in some schools such as the Army Public School, Bangalore and Vikram Sarabhai Space Centre, Thiruvananthapuram, overlooks the fact that the NEP 2020 is being introduced in the country in a phased manner and the purpose of the impugned guidelines is to bring uniformity in the admission criteria in all branches of the KVS across the country., The petitioners have also not disputed the respondents’ claim that they have already received about seven lakh applications for admission to Class I in furtherance of the impugned notice. These applicants are between six and seven years of age, and therefore I find merit in the respondents’ contention that permitting five‑year‑old children to join Class I in the KVS would lead to a huge imbalance in the class, making the situation almost unworkable. Not only would the syllabus have to be re‑worked, but admission of five‑year‑old children together with children who could be almost seven years old would be highly undesirable. The balance of convenience therefore tilts in favour of the respondents., Reference may be made to the observations of the Madhya Pradesh High Court in Ayan Abdullah Usmani (supra), which state: “In such circumstances, in our considered opinion, the age criteria prescribed in the guidelines cannot be relaxed and should not be relaxed by the Court, as such relaxation amounts to perpetuating discrimination as those who are aware of the guidelines and did not fulfill the age criteria did not apply and obtain admission, whereas the respondents, after having obtained admission as per the guidelines, have sought relaxation to obtain undue advantage.”, The law on granting interim orders in academic matters has been extensively considered by the Supreme Court in Dental Council of India v. Dr. Hedgewar Smruti Rugna Seva, Mandal, Hingoli & Others (2017) 13 SCC 115, wherein the practice of granting interim orders and thereafter claiming sympathetic considerations at the time of final hearing was deprecated., In view of the law laid down by the Supreme Court, any direction to permit respondents who admittedly do not fulfill the eligibility criteria and had themselves obtained admission in accordance therewith in Class II and have thereafter taken an about‑turn and challenged the same, to continue with Class III and to treat their admission as in Class III, would amount to issuing a fiat directing the appellant school to disobey its own Rules and Regulations, which would be destructive of the rule of law., I have considered the decision in Suman Mishra (supra), heavily relied upon by the petitioners, and find that it does not advance their case. In that decision, the Court dealt with a situation where the upper age limit was reduced at the last minute, making some eligible children ineligible for admission. In the present case, the petitioners will not become ineligible to apply for admission to Class I in KVS; rather, after attaining the age of six years, they will become eligible for admission in the next academic year., I have also considered the decision in Mahabir Auto Stores (supra) and find that it does not aid the petitioners. Even if the petitioners’ claim that they were taken by surprise were accepted, they had no vested right to claim admission in KVS, nor have they been debarred from seeking admission. The only effect of the impugned guidelines is to shift their eligibility to the next academic year, which cannot be a ground to interfere with the guidelines, especially when the respondents have already received over seven lakh applications for admission to Class I for the academic year 2022‑2023., I have also examined the decision in Social Jurist (supra) and find that it is not applicable to the present facts. In that decision, the Court dealt with the effect of Article 21A of the Constitution, whereas in the present case the impugned guidelines are based on the NEP 2020, which is not under challenge., For the foregoing reasons, I am unable to persuade myself to agree with the petitioners. The writ petitions are accordingly dismissed without any order as to costs.
id_829	0	Arising out of Police Station Case No. 485 Year 2020 Thana Kahalgaon District Bhagalpur. Jawed Akhtar son of Mohd Sikandar Ansari resident of village Baraini, Police Station Kahalgaon, District Bhagalpur, petitioner versus the State of Bihar, opposite parties. Appearance: for the petitioner Mr Ranjan Kumar Jha, Advocate; for the opposite party Mr Yogendra Kumar, Additional Public Prosecutor. Heard on 31-06-2021. The petitioner seeks regular bail in connection with Kahalgaon Police Station Case No. 485 of 2020 registered for offences punishable under Sections 153A and 294 of the Indian Penal Code, 1860, and Sections 67 and 67A of the Information Technology Act. The allegation as per the First Information Report is that the petitioner shared some objectionable Facebook photographs of Hindu deities. Learned counsel for the petitioner submits that the petitioner has not committed any offence as alleged and had no intention to hurt the religious feelings of any community. Counsel further submits that the First Information Report shows that the petitioner shared a post of one Reehan Khan and that the post did not originate from the petitioner's Facebook account. The petitioner is a twenty‑year‑old student. Counsel also submits that Sections 294 of the Indian Penal Code and Sections 67 and 67A of the Information Technology Act are bailable offences and that Section 153A does not appear to be attracted. The petitioner has remained in custody since 9 August 2020, has no criminal antecedent and the charge sheet has already been submitted., Having regard to the submissions and the material on record, and considering that the petitioner is a student, the charge sheet is filed, and he has been in custody since 9 August 2020 without any criminal antecedent, I am inclined to grant regular bail. Accordingly, the petitioner shall be released on regular bail upon furnishing bail bonds of Rs 10,000 (Ten thousand rupees) with two sureties of the same amount each to the Patna High Court, Miscellaneous No. 1055 of 2021 dated 16 June 2021, with the satisfaction of the Chief Judicial Magistrate, Bhagalpur, in connection with Kahalgaon Police Station Case No. 485 of 2020. It is made clear that at the time of furnishing bail bonds all parties shall follow the guidelines regarding social distancing.
id_83	0	The petition is filed under Section 406 of the Criminal Procedure Code seeking transfer of complaint No. 5561 of 2022 titled Manoj Bajpayee versus Kamaal Rashid Khan alias KRK pending before the Court of Judicial Magistrate, First Class, Indore, Madhya Pradesh to the Court of Chief Judicial Magistrate, Mumbai, Maharashtra., Heard learned counsel for the petitioner as also learned counsel for the respondent and perused the petition papers as also the reply filed to the transfer petition along with the documents enclosed., Considering that the complaint has been initiated at a place where it is alleged that the complainant had knowledge of the defamatory tweets, we see no reason to accept the request for transfer. The Transfer Petition is, accordingly, disposed of. Pending application(s), if any, shall stand disposed of., Transfer Petition (Criminal) No. 151/2023 Date: 26-04-2023. These matters were called on for hearing today., For Petitioners: Dr. Vinod Kumar Tewari, Advocate on Record; Mr. Kamal Pundir, Advocate; Mr. Durgesh Gupta, Advocate; Mr. Rajesh Sain, Advocate; Ms. Shivani, Advocate., For Respondents: Mr. Mayank Kshirsagar, Advocate on Record; Mr. Paresh Joshi, Advocate; Ms. Abha Goel, Advocate; Ms. Rashmi Joshi, Advocate; Ms. Pankhuri, Advocate; Mr. Akhilesh Yadav, Advocate., Upon hearing the counsel the Judicial Magistrate Court, First Class, Indore, Madhya Pradesh made the following: The Transfer Petition is disposed of in terms of signed order. Pending application(s) shall also stand disposed of. (Signed order is placed on the file).
id_830	0	Appellant Irfan Shaikh alias Irfan Khan filed the present criminal appeal under Section 21(4) of the National Investigation Agency Act, 2008, challenging the order dated 21 October 2021 refusing bail to the appellant by the Special Judge, National Investigation Agency/Anti Terrorism Squad/Additional District and Sessions Judge, Court No. 3, Lucknow in Bail Application No. 6152 of 2021: Irfan Khan alias Irfan Shaikh versus State of Uttar Pradesh., It is alleged that Sub‑Inspector Vinod Kumar furnished information to the Anti Terrorism Squad that certain anti‑national and anti‑social elements and religious organisations, allegedly on the direction of foreign intelligence agencies, have been involved in converting people to Islam by receiving funds from foreign countries. These elements are said to have targeted weaker sections of society, including children, women, and persons belonging to Scheduled Castes and Scheduled Tribes, with the objective of changing the demography of the country and disturbing public order., During interrogation in Case Crime No. 473 of 2001, registered under Sections 419, 420, 295A, 505, 506 of the Indian Penal Code at Police Station Masoori, Ghaziabad, it emerged that accused Umar Gautam, a convert to Islam, was involved in converting approximately one thousand non‑Muslims to Islam and facilitating their marriages to Muslims. It was also disclosed that Umar Gautam and his associates operate an organisation called Islamic Dawa Centre, which receives substantial funding from various sources, including foreign countries. Additionally, students of the Noida Deaf Society were allegedly converted through misrepresentation, allurement and fraudulent means., Subsequently, a First Information Report, Crime No. 09 of 2021, under Sections 420, 120B, 153A, 153B, 295A, 511 of the Indian Penal Code and Sections 3 and 5 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, was registered on 20 June 2021 at the Anti Terrorism Squad Police Station, Gomti Nagar, Lucknow against accused Umar Gautam, Mufti Qazi Jahangir Qasmi, Chairman Islamic Dawa Centre and unknown persons. Investigation revealed that Umar Gautam had formed a gang for the purpose of religious conversion and that Irfan Khan, who was working as an interpreter in the Sign Language Training and Research Centre, New Delhi, acted as a vital link in the syndicate. The appellant’s name surfaced from the statements of co‑accused Jahangir and Rahul Bhola., The appellant filed bail application No. 6152 of 2021 before the Special Judge, National Investigation Agency/Anti Terrorism Squad/Additional District and Sessions Judge, Court No. 3, Lucknow, which was rejected by order dated 21 October 2021. Consequently, the present criminal appeal under Section 21(4) of the National Investigation Agency Act, 2008 has been filed before the Supreme Court of India, challenging the aforesaid order., The hearing was conducted before Shri O. P. Tiwari and Shri Furqan Pathan, learned counsel for the appellant, and Shri S. N. Tilhari, learned Additional Government Advocate for the State. Counsel for the appellant argued that the appellant is not a member of any association nor involved in any crime, was not named in the First Information Report, and has no relation with co‑accused Umar Gautam. The appellant, they contended, has been falsely implicated without any evidence, and the statements of co‑accused are the sole basis for his accusation., The appellant’s counsel further submitted that, according to the statement of victim Aditya Gupta alias Abdul Kadir recorded under Section 164 of the Criminal Procedure Code, the appellant and others were found sitting at the office of Islamic Dawa Centre, known as the I.D.C. The counsel highlighted the appellant’s respectable family background, his contributions to the deaf community, and his service as an interpreter in the Indian Sign Language Training and Research Centre, Okhla, New Delhi, since 2016 under the Ministry of Social Justice and Empowerment. He was among the top twenty‑five interpreters during his college years and a gold medalist, having represented India abroad and participated in numerous government‑organized events., The appellant’s counsel also argued that the statements of Aditya Gupta recorded under Section 161 of the Criminal Procedure Code by the Anti Terrorism Squad are false, as are the statements of other witnesses, namely Mohd. Shabba and Firoz Ahmad. They emphasized that the appellant has no criminal antecedents. The initial charge sheet filed on 13 August 2021 listed offences under Sections 417, 120B, 153A, 153B, 295A, 298 of the Indian Penal Code and Sections 3, 5, 8 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021. A supplementary charge sheet dated 17 September 2021 added offences under Sections 121A and 123 of the Indian Penal Code. The counsel contended that the trial court rejected bail on mere surmise without considering the statements of all witnesses, and that the appellant has been in custody since 28 June 2021., The Additional Government Advocate vehemently opposed the bail prayer, stating that the Anti Terrorism Squad, after due investigation, recorded statements of various witnesses indicating the appellant’s involvement in the commission of the crime. According to the advocate, statements of three witnesses—Aditya Gupta alias Abdul Kadir, Mohd. Shabba and Firoz Ahmad—show that the appellant, along with co‑accused Umar Gautam, Asif and Munna Yadav, played a constructive role in converting deaf and dumb persons by misrepresentation and persuasion. The appellant, being a Central Government employee, allegedly misused his official position to facilitate illegal conversions of students of the Indian Sign Language Training and Research Centre to Islam., The advocate further noted that material and clinching evidence collected during investigation led to charge sheet No. 11/21 dated 13 August 2021, and a subsequent charge sheet No. 11A dated 17 September 2021, charging the appellant and co‑accused with offences under Sections 417, 120B, 153A, 153B, 295A, 298 of the Indian Penal Code, Sections 3, 5, 8 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, and additionally Sections 121A and 123 of the Indian Penal Code. Consequently, the advocate argued that the appellant is not entitled to bail., Pleadings between the parties have been exchanged. The Court has examined the submissions of the learned counsel, perused the impugned order and the material placed on record., The record shows that although the appellant was not named in the First Information Report, his involvement emerged from the statements of co‑accused Jahangir and Rahul Bhola recorded under Section 161 of the Criminal Procedure Code, as evidenced by Annexures CA‑3 and CA‑4 to the counter affidavit. It also transpires that the appellant played an indispensable role in the conversion of deaf and dumb persons by misrepresentation and persuasion, as reflected in statements recorded under Sections 161 and 164 of the Criminal Procedure Code. Witness Firoz, a Notary Advocate, stated that a notary form was brought by the appellant for illegal conversion and that the appellant, as a Central Government employee, was authorized for such work. Investigation further revealed that many students of the Noida Deaf Society had been converted to Islam., Annexures CA‑17, CA‑18, CA‑20 and CA‑21 of the counter affidavit indicate that the Islamic Dawa Centre is operated by the Fatima Charity Foundation of accused Umar Gautam, which maintains an account in the name of Fatima Charity Foundation with Kotak Mahindra Bank (Account No. 0711131345). No bank account exists in the name of the Islamic Dawa Centre. Large sums have been received in the personal bank accounts of accused Umar Gautam and his son Abdullah Umar for financing the activities of the Islamic Dawa Centre. Annexure CA‑22, a copy of chat data extracted from the mobile phone of accused Umar Gautam by the Forensic Science Laboratory, shows a conversation between Umar Gautam and a person named Irfan Atlantaa, including discussions about paying money to new Muslims in India., Considering the facts and circumstances, particularly the finding that the Investigating Officer, after due investigation, has gathered cogent and clinching evidence that, with the connivance of co‑accused Umar Gautam and others, the appellant was involved in anti‑national activities of conversion by misusing his official position, the Court finds no sufficient ground to grant bail to the appellant., Accordingly, while affirming the order dated 21 October 2021, the criminal appeal of the appellant Irfan Shaikh alias Irfan Khan, involved in Case Crime No. 9 of 2021, under Sections 120B, 121A, 123, 153A, 153B, 295A, 298, 417 of the Indian Penal Code and Sections 3, 5, 8 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, is dismissed.
id_831	0	Criminal Writ Petition No. 5212 of 2021 Date of Decision: June 10, 2021 Daya Ram & another Petitioners Versus State of Haryana & others Respondents Present: Mr. Lupil Gupta, Advocate, for the petitioners. Mr. Sukhdeep Parmar, Deputy Advocate General, Haryana., The petitioners, who are yet to attain the marriageable age, have approached the High Court of Punjab and Haryana at Chandigarh by way of this criminal writ petition under Article 226 of the Constitution of India for issuance of directions to the official respondents Nos. 2 to 4 for protection of their life and liberty from their estranged family members, who are opposing their live-in relationship., The facts, in brief, leading to the filing of this petition are that petitioner No.1 Daya Ram, born on 18‑04‑2001 (20 years and 2 months old) and petitioner No.2 Reenu, born on 25‑10‑2006 (14 years and 8 months old), knew each other for the last one year, fell in love, but the parents of Reenu opposed their relationship. As the parents of Reenu were making arrangements to solemnise her marriage with a boy of their choice and upon learning this, she requested them not to do so; however, the parents remained adamant. Petitioner No.2 left her house on 01‑06‑2021 and contacted petitioner No.1 and decided to reside together in a live‑in relationship till they attain the marriageable age., As per pleadings, it is apprehended that the parents of petitioner No.2 would not spare them as they received continuous threats, whereupon they sent a representation dated 03‑06‑2021 (Annexure P‑3) to the Superintendent of Police, Sirsa by post, and prayed for stern action against the parents of Reenu. Since the representation has failed to evoke any response from the official respondents, and till date no protection has been provided, the petitioners have approached this court for issuance of necessary directions., Learned counsel for the petitioners argued that the petitioners are mature enough to understand good and bad, are in love and have decided to marry, but their proposal was turned down by the parents and other relatives of Reenu, so they were left with no alternative but to live together in a live‑in relationship. He submitted that till date there is no physical intimacy between the petitioners as they are waiting to attain the statutory marriageable age; therefore, the private respondents have no right to interfere in their life. In support of his arguments, counsel placed reliance upon the decisions of this court rendered in Preeti and another Versus State of Haryana and others and Soniya and another Versus State of Haryana and others (Annexures P‑4 and P‑5). At the time of hearing, counsel also produced copies of the decision dated 03‑06‑2021 in Seema Kaur and another Versus State of Punjab and others as well as the order dated 04‑06‑2021 of the Hon’ble Supreme Court passed in Gurwinder Singh and another Versus State of Punjab and others (Special Leave to Appeal (Criminal) No. 4028 of 2021) and contended that in view of the guarantee provided by Article 21 of the Constitution of India, their right to life cannot be put in danger and prayed for issuance of necessary directions to the official respondents to provide security to the petitioners., The above prayer was vehemently opposed by Mr. Sukhdeep Parmar, learned State counsel, assisted by Sub‑Inspector Devi Lal, on the ground that the petitioners have approached this court without a valid cause of action and the petition is not maintainable. According to him, petitioner No.2 is a minor who was removed from the lawful custody of her natural guardians by petitioner No.1 and, on the basis of the complaint given by her father (respondent No.5), a case FIR No. 200 dated 23‑05‑2021, under Sections 363, 366‑A, 379 and 120‑B IPC, already stands registered against Daya Ram and others at Police Station Nohar, District Hanumangarh (Rajasthan). Learned State counsel produced the copy of the said FIR to show that Daya Ram along with others is an accused and is wanted by the police, so no indulgence is warranted by this court. He prayed that the writ petition be dismissed., The society, for the last few years, has been experiencing profound changes in social values, especially among exuberant youngsters, who in pursuit of absolute freedom leave the company of their parents to live with the person of their choice, and to obtain the seal of the court to their alliance, they file petitions for protection by posing threat to their life and liberty. Such petitions are ordinarily based on the sole ground of apprehension of threat predicted against the disapproving parents or other close relatives of the girl only, as the decision of the couple is rarely opposed by the family members of the boy. Their right to live together is either based on a sudden, secretive and small destination marriage or upon live‑in relationship. The aggrieved persons can avail the alternative remedy, but a large number of petitions land in the lap of this court as, according to the petitioners, alternative remedy is less felicitous. Majority of such petitions contain formal symbolic averments, grounds with imaginary cause of action, and are rarely founded upon actual or real existence of threat, and these types of cases consume considerable time of this court, that too at the cost of many other cases waiting for hearing., The prayer in all these petitions is based upon the fundamental right to life guaranteed under Article 21 of the Constitution of India. The expression ‘right to life’ as contained in Article 21 is not confined to its literal meaning, but also includes the rights of children and women, as they are more vulnerable to abuse. Further, Article 15(3) also leans in favour of women and children as it empowers the State to make laws favouring them. The adverse effects of child marriage were analysed in depth by the Hon’ble Supreme Court in Independent Thought Versus Union of India and another, (2017) 10 Supreme Court Cases 800. The relevant observations read as follows:, 89. We have adverted to the wealth of documentary material which shows that an early marriage and sexual intercourse at an early age could have detrimental effects on the girl child not only in terms of her physical and mental health but also in terms of her nutrition, education, employability and general well‑being. To make matters worse, the detrimental impact could pass on to the children of the girl child who may be malnourished and may be required to live in an impoverished state due to a variety of factors. An early marriage therefore could have an inter‑generational adverse impact. In effect, the practice of early marriage or child marriage even if sanctified by tradition and custom may yet be an undesirable practice today with increasing awareness of its detrimental effects and the detrimental effects of an early pregnancy. Should this traditional practice still continue? We do not think so and the sooner it is given up, it would be in the best interest of the girl child and for society as a whole., 90. We must not and cannot forget the existence of Article 21 of the Constitution which gives a fundamental right to a girl child to live a life of dignity. The documentary material placed before us clearly suggests that an early marriage takes away the self‑esteem and confidence of a girl child and subjects her, in a sense, to sexual abuse. Under no circumstances can it be said that such a girl child lives a life of dignity. The right of a girl child to maintain her bodily integrity is effectively destroyed by a traditional practice sanctified by the Indian Penal Code. Her husband, for the purposes of Section 375 of the IPC, effectively has full control over her body and can subject her to sexual intercourse without her consent or willingness since such an activity would not be rape. Anomalously, although her husband can rape her but he cannot molest her; if he does so he could be punished under the provisions of the IPC. This was recognised by the Law Commission of India in its 172nd report but was not commented upon. It appears therefore that different and irrational standards have been laid down for the treatment of the girl child by her husband and it is necessary to harmonise the provisions of various statutes and also harmonise different provisions of the IPC inter‑se., 99. However, of much greater importance and significance is Section 42‑A of the Protection of Children from Sexual Offences Act. This section provides that the provisions of the POCSO Act are in addition to and not in derogation of the provisions of any other law in force, which includes the IPC. Moreover, the section provides that in the event of any inconsistency between the provisions of the POCSO Act and any other law, the provisions of the POCSO Act shall have overriding effect. It follows that even though the IPC decriminalises the marital rape of a girl child, the husband of the girl child would nevertheless be liable for punishment under the provisions of the POCSO Act for aggravated penetrative sexual assault., 100. Prima facie it might appear that since rape is an offence under the IPC (subject to Exception 2 to Section 375) while penetrative sexual assault or aggravated penetrative sexual assault is an offence under the POCSO Act and both are distinct statutes, there is no inconsistency. However, there is no real distinction between the definition of rape under the IPC and the definition of penetrative sexual assault under the POCSO Act. There is also no real distinction between the rape of a married girl child and aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. Additionally, the punishment for the respective offences is the same, except that the marital rape of a girl child between 15 and 18 years of age is not rape in view of Exception 2 to Section 375 of the IPC. In sum, marital rape of a girl child is effectively nothing but aggravated penetrative sexual assault and there is no reason why it should not be punishable under the provisions of the IPC. Therefore, it appears that only a notional or linguistic distinction is sought between rape and penetrative sexual assault and rape of a married girl child and aggravated penetrative sexual assault. There is no rationale for this distinction and it is a completely arbitrary and discriminatory distinction. Finally, the Hon’ble Supreme Court concluded that being purposive and harmonious constructionists, the only pragmatic option is to harmonise the system of laws relating to children and require Exception 2 to Section 375 of the IPC to be meaningfully read as: ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.’ It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected., No doubt, the concept of live‑in relationship between two adults of opposite gender has got recognition in India also, as the legislature has injected some legitimacy in this kind of alliance while promulgating the Protection of Women from Domestic Violence Act, 2005 and liberally defined domestic relationship in Section 2(f). However, despite this elasticity, some sections of society are reluctant to accept such relationships. It has to be constantly borne in mind that the length of the relationship coupled with discharge of certain duties and responsibilities towards each other makes such relationship akin to marital relations., The Hon’ble Supreme Court in (2013) 15 Supreme Court Cases 755 (Indra Sarma Versus V.K.V. Sarma) discussed the nature of live‑in relationship and made the following observations: 56.1 Duration of period of relationship – Section 2(f) of the Domestic Violence Act uses the expression ‘at any point of time’, which means a reasonable period of time to maintain and continue a relationship, which may vary from case to case depending on the facts. 56.2 Shared household – defined under Section 2(s) of the Domestic Violence Act. 56.3 Pooling of resources and financial arrangements – supporting each other financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long‑term investments, etc., may be a guiding factor. 56.4 Domestic arrangements – entrusting the responsibility, especially on the woman, to run the home, do household activities, is an indication of a relationship in the nature of marriage. 56.5 Sexual relationship – marriage‑like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, to give emotional support, companionship and material affection. 56.6 Children – having children is a strong indication of a relationship in the nature of marriage. 56.7 Socialisation in public – holding out to the public and socialising with friends, relations and others as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage. 56.8 Intention and conduct of the parties – common intention of parties as to what their relationship is to be and their respective roles and responsibilities primarily determines the nature of that relationship., Now reverting to the case in hand and upon considering the pleadings and arguments, the High Court of Punjab and Haryana at Chandigarh finds that petitioner No.2 Reenu, being only 14 years and 8 months old, is a minor. Further, a perusal of the memo of parties reflects that petitioner No.1 Daya Ram is representing her, claiming himself to be the next friend of the minor. Besides, the writ petition is not signed by any of the petitioners and, in support of the pleadings, only the affidavit of petitioner No.1 has been filed. Though, as per averments in the writ petition, entire blame has been put upon the natural guardians of the minor girl to set up compelling circumstances for her to voluntarily leave the house of parents, there is no pleading by him that his interest is not adverse to the interest of the minor and he is acting for the welfare of the minor girl. Petitioner No.1 is already an accused in FIR No.200 dated 23‑05‑2021 and is accused of kidnapping the minor daughter of respondent No.5; therefore, his claim to be lawful representative of the minor girl is not worthy of acceptance. Moreover, the representation (Annexure P‑3) is vague, does not contain relevant particulars and material facts about the background of their friendship, the date and manner of alleged threat extended to them, and there are no details of private respondents mentioned either in the writ petition or in the representation. As per the representation, even the parents of Daya Ram had also opposed their live‑in relationship, but they have not been impleaded in the petition. Strangely, petitioner No.1 has not explained why the minor girl after leaving the house did not make any complaint either to the police against her parents or contact any other close relative to resolve her differences with the parents. Thus, it is apparent that the present petition has been filed hastily by petitioner No.1 to put up a defence to the above FIR registered at the instance of respondent No.5., The judicial pronouncements relied upon by the petitioners are not applicable to the present case. In Preeti’s case and Seema’s case, the girl was a minor and, despite noticing this fact, the maintainability of the petitions without proper representation of the minor girl was not examined. Similarly, the decision in Soniya’s case is not applicable as, in that case, both petitioners were adults and the court, after examining the merits, directed the Senior Superintendent of Police to look into the representation of the petitioners. Likewise, the order dated 04‑06‑2021 passed by the Apex Court is also not applicable in the present case., Consequently, this court is not inclined to exercise the extraordinary writ jurisdiction and the writ petition is dismissed. Respondent No.2 Senior Superintendent of Police, Sirsa is directed to depute a responsible police officer to ensure that the custody of the minor girl is restored to her parents after coordinating with the State of Rajasthan police., Before parting, this court observes that despite the penal provisions in the Prohibition of Child Marriage Act, 2006, child marriages continue in violation of the Act. The Hon’ble Supreme Court in Independent Thought’s case suggested to the Government of India and the State Governments to follow the decision of the State of Karnataka, which declared child marriage void ab initio through an amendment dated 20‑04‑2017. Paragraphs 154 and 155 of that judgment are reproduced: 154. After making the aforesaid observations, the Karnataka High Court constituted a four‑member committee headed by Dr. Justice Shivraj V. Patil, former Judge of this Court, to expose the extent of practice of child marriage. The Committee was also requested to suggest ways to root out the evil of child marriage from society and to prevent it to the maximum extent possible. The Core Committee submitted its report and made various recommendations. One of its recommendations was that marriage of a girl child below the age of 18 years should be declared void ab initio. Pursuant to the report, in the State of Karnataka an amendment was made in the PCMA and Section 1(A) was inserted after sub‑section 2 of Section 3, which reads: (1A) Notwithstanding anything contained in subsection (1) every child marriage solemnised on or after the date of coming into force of the Prohibition of Child Marriage (Karnataka Amendment) Act, 2016 shall be void ab initio. 155. Therefore, any marriage of a child, i.e., a female aged below 18 years and a male below 21 years is void ab initio in the State of Karnataka. This is how the law should be throughout the country. Where the marriage is void, there cannot be a husband or a wife and there is no doubt that protection of Exception 2 to Section 375 IPC cannot be availed of by those persons who claim to be husband of child brides pursuant to a marriage which is illegal and void. This suggestion of the Hon’ble Supreme Court was given in 2017, but the same is yet to attract the attention of the States of Punjab, Haryana and the Union Territory Administration, Chandigarh; therefore, this court feels it necessary to remind the States to consider this important issue to eradicate the menace of child marriage. A copy of the judgment be sent to the Chief Secretaries of the States of Punjab, Haryana and the Advisor to the UT of Chandigarh.
id_833	0	Date of decision: 16th November 2021. Through: Mr. Mohit Mathur, Senior Advocate with Mr. Damanpreet Kohli, Mr. Manish Malhotra, Mr. Tarun Gaur and Mr. Harsh Gautam, Advocates, versus Through: Ms. Meenakshi Chauhan, Learned Additional Public Prosecutor for the State with SI Pramila, PS Janakpuri, Mr. Jitender Kumar Jha and Mr. Sarsij Narayanam, Advocates for the complainant., This petition under Section 438 of the Criminal Procedure Code has been filed for grant of bail to the petitioner in the event of arrest in FIR No. 235/2021 dated 25.05.2021, registered at Police Station Janakpuri for offences under Section 376 of the Indian Penal Code., It is stated that the complainant was working in the Human Resources Department at the company of the petitioner, M/s Dabas Securities and Allied Services. The petitioner allegedly induced and pressurised female employees of his company to have physical relations with him. The complainant says she joined the petitioner’s company during the COVID‑19 lockdown in June 2020, and the petitioner in November 2020 allured her to meet him at a hotel and had forceful sexual intercourse with her. The petitioner is alleged to have forcefully raped the complainant at the Holiday Inn in Agra on 30.12.2020. The FIR states that in January 2021 the petitioner again coaxed her to meet him at a hotel room, which the complainant refused. Subsequently, the petitioner, without any notice or reason, fired the complainant from her job., The complainant later rejoined the job after speaking to the reporting manager, who informed her that she had been harassed in the same manner by the petitioner. After rejoining, she was promoted and her salary increased. Another employee who had joined as receptionist was also coerced into having physical relations with the petitioner, and the complainant, under pressure, succumbed after repeatedly expressing her discomfort in the workplace. The complainant recounted the incident to a colleague and friend, Rajiv Jha, who called the petitioner and asked him to desist from exploiting his employees. Following this call, the petitioner filed an FIR against the complainant’s friend for criminal intimidation., The investigation is still ongoing and the charge sheet has not yet been filed with the Learned Sessions Court. The statement of the victim under Section 164 of the Criminal Procedure Code was recorded by the Learned Magistrate, Dwarka Court on 27.05.2021. The statement of Ms. R.S., a former employee of the petitioner’s company, was recorded telephonically under Section 161 of the Criminal Procedure Code. The statement of another employee, VB, was recorded by the Investigating Officer telephonically on 30.05.2021. The telephonic conversations between the petitioner and the complainant during her tenure have been transcribed and attached to the record., The Learned Sessions Court, Dwarka, Delhi dismissed the petitioner’s plea for anticipatory bail by order dated 01.07.2021. The court reasoned that the contents of the FIR are supported by the Section 164 statement of the complainant. It also relied upon two conversations presented by the Investigating Officer wherein the petitioner approached other female employees for sexual favours. The order records that these statements were later retracted by both employees on 02.06.2021. The court further relied upon the transcriptions of conversations exchanged between the petitioner and the complainant and opined that the petitioner, as the employer, abused his superior position to force the complainant into an involuntary sexual relationship despite her resistance. On her refusal to have intercourse with the petitioner in January 2021, he fired her and asked her to seek employment elsewhere., The court heard arguments of both parties and perused the material on record., Mr. Mohit Mathur, Learned Senior Advocate appearing for the petitioner, submits that the petitioner and complainant were in an employer‑employee relationship which later developed into a consensual physical relationship. He states that the complainant joined the Human Resources Department of the petitioner’s business during the COVID‑19 lockdown in June 2020 and had sexual relations with him on three occasions – twice in December 2020 and once in March 2021. He contends that the complainant travelled to Agra with him for a business trip and stayed with him at a hotel for two days. He argues that if the complainant had been raped, she ought to have lodged an FIR within the shortest time possible and not filed the FIR six months after the first incident of rape was committed., Mr. Mathur further submits that the complainant is a lady in her thirties who has been working since 2011 and is not a newcomer. He argues that she should have intimated her relatives, co‑workers and the police about the first incident and should have taken action such as not attending office or submitting her resignation. He notes that none of these steps were taken and that she established physical relations with the petitioner on two different occasions spread over four months. He contends that the complainant’s behaviour is far from normal and principally dubious, stating that she remained in regular contact with the petitioner and never explicitly objected to his advances or threatened to resign after warning him of legal action., Mr. Mathur also submits that the complainant was given a promotion and a salary raise within six to eight months of joining the company and that filing the FIR of rape against the petitioner was a last‑minute resort done hastily and is only a way to blackmail the petitioner to extract money. He alleges that before filing the FIR the complainant tried to arm‑twist the petitioner by asking her male friend, Rajiv Jha, to extort the petitioner, who then repeatedly called the petitioner demanding money and threatening to disclose the affair to his family. He states that the petitioner filed an FIR (NCR‑0007/2021) at Vasant Vihar Police Station on 24.05.2021 under Section 155 of the Criminal Procedure Code for criminal intimidation and that the present FIR is only a counter‑blast. He further submits that the bill from ITC Maurya Hotel dated 20.12.2020 shows that the room was booked in the name of the complainant., Ms. Meenakshi Chauhan, Learned Additional Public Prosecutor for the State, submits that the charges against the petitioner are grave, especially because the complainant and petitioner were in an employer‑employee relationship where the petitioner had an upper hand as the owner of the company. She states that during investigation it was found that the petitioner behaved similarly with other female employees, enticing them to establish physical relations in exchange for salary hikes and promotions, and that any lady who declined to engage physically was removed from the job. She draws the Court’s attention to sub‑clause (2) of Section 376 of the Indian Penal Code, noting that this is not a case of simple rape (punishment seven years of Rigorous Imprisonment) but falls under sub‑clause (2), where the punishment is a minimum of ten years of Rigorous Imprisonment, which may extend to life imprisonment, with life to be construed literally as the natural life of a person., She further submits that the complainant has been physically exploited and mentally manipulated by the petitioner who lured her with better positions and perks. She argues that the material in the FIR and the Section 164 statement are the same and there is no improvement in the statement. She contends that protection from arrest should not be granted to the petitioner as there is a serious possibility of him tampering with evidence, and the witnesses who had given statements under Section 161 of the Criminal Procedure Code supporting the prosecution have already withdrawn their statements by letters to the Station House Officer. She notes that in rape cases bail is granted rarely and only after the victim’s statement is recorded in trial or after filing of a charge sheet. She holds that the order of the Learned Trial Court dated 01.07.2021 denying anticipatory bail is a perfect order and should be followed by this Court., Mr. Jitendra Jha, Learned Counsel appearing for the complainant, submitted that the delay in filing the FIR was due to the complainant being psychologically manipulated by the petitioner, who promised promotion and a better pay package. He stated that the complainant was subdued because her job depended on the petitioner during the pandemic and financial difficulties. He relied on transcripts of conversations showing the petitioner repeatedly harassing her, calling her, and forcing her to meet him alone at a hotel. He submitted that the complainant was manhandled and raped by the petitioner in the office washroom on 13.05.2021, a fortnight before the filing of the present FIR, and that she filed the FIR as a last resort because she was being tortured and traumatized. He argued that the petitioner is a powerful person who possesses a revolver and that there is a real danger to the complainant’s life if anticipatory bail is granted. He adopted other arguments of Ms. Meenakshi Chauhan., The Court has perused the case file, materials placed in the sealed cover and the annexure containing transcribed telephone calls made between the petitioner and the complainant., Law relating to grant of anticipatory bail has been succinctly laid down by the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, wherein it observed: \85. It is a matter of common knowledge that a large number of under‑trials are languishing in jail for a long time even for allegedly committing very minor offences. This is because Section 438 of the Criminal Procedure Code has not been allowed its full play. The Constitution Bench in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] clearly mentioned that Section 438 of the Criminal Procedure Code is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were Sections 437 and 439 of the Criminal Procedure Code. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some Courts of smaller strength have erroneously observed that Section 438 of the Criminal Procedure Code should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465]. 88. The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court. 89. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. 90. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre‑conviction stage or post‑conviction stage.\, The Court notes that whether the sexual intercourse between the petitioner and the complainant was consensual is to be decided during the trial and refrains from commenting on the merits. However, the Court finds it pertinent that arrest on the basis of mere allegations has the potential to destroy the reputation of the individual, and therefore great care and circumspection must be exercised at the pre‑conviction stage., With regard to grant of anticipatory bail, the Court analyses whether the petitioner is in a position to tamper with evidence or influence witnesses. The Learned Trial Court, by order dated 01.07.2021, dismissed the anticipatory bail application on the ground that the petitioner was in a position of authority and could exert dominance over the complainant and other employee‑witnesses. The Court notes that the two employee‑witnesses have now left the company and therefore the petitioner is no longer in a position to influence them. Mere apprehension of tampering with evidence or influencing witnesses cannot, by itself, be a ground for rejecting an anticipatory bail application., For the foregoing reasons, this Court is inclined to grant bail to the petitioner in the event of arrest on the following conditions: (a) The petitioner shall furnish a personal bond of Rs 50,000/- with two sureties of the same amount, one of whom should be a relative of the petitioner, to the satisfaction of the Learned Trial Court/Duty Magistrate. (b) The petitioner is directed to surrender his passport to the Trial Court. (c) It is mentioned in the Memo of Parties that the petitioner resides at RZ‑H‑705/1, Gali No.1, Raj Nagar‑2, Dabri, New Delhi; he is directed to continue residing at the same address and to intimate any change of address to the Investigating Officer. (d) The petitioner shall visit the concerned police station three times a week, i.e., every Monday, Wednesday and Friday at 10:30 AM and shall be relieved by the Investigating Officer by 12:00 PM after recording his presence in the daily register. (e) The Magistrate shall verify whether the petitioner possesses a revolver or any firearms; if so, the petitioner shall surrender the firearms and its licence before the Magistrate. (f) The petitioner shall be available to join the investigation as and when required by the Investigating Officer. (g) The petitioner should attend all proceedings of the trial through Video Conferencing or physically. (h) The petitioner shall not contact the complainant, her family, or tamper with any witnesses; any attempt to contact a witness shall result in immediate forfeiture of protection., It is made clear that the observations made in this order are only for the purpose of grant of bail and cannot be taken into consideration during the trial., Accordingly, the bail application is disposed of along with any pending applications, if any.
id_835	0	(Arising out of Special Leave Petition (Criminal) No. 8615 of 2023) Leave granted. Heard the learned counsel appearing for the appellant, the learned counsel appearing for the respondent State and the learned counsel appearing for the first informant‑caveator., The appellants in this appeal are the appellants in Criminal Appeal No. 9612 of 2022 before the High Court of Judicature at Allahabad. The appeal against the order of conviction was admitted and the High Court granted bail pending the final disposal of the appeal., The impugned order reads thus: \Mr. Anil Kumar Srivastava, Advocate for the appellants in the connected matter would not like to argue the matter before this Supreme Court of India. This Supreme Court of India directs that the bail and bail bonds of accused‑appellants, Krishna Kumar and two others, shall stand cancelled forthwith. They will surrender on or before ...\, We are shocked to note that the advocate appointed by the appellants was bold enough to tell the concerned Bench of the High Court that he would not like to argue the matter before that Bench. We are separately dealing with the conduct of the advocate., Needless to add that only on account of default by the advocate for the appellants, the appellants ought not to have been penalised by passing a drastic order of cancelling bail., This Supreme Court of India has repeatedly taken the view that in a given case where an unwarranted adjournment is sought by the advocate representing the accused in the appeal against conviction, the Court has an option of appointing an amicus curiae to espouse the cause of the accused and hearing the appeal on merits. The said course could have been adopted by the High Court of Judicature at Allahabad., Prima facie, we are of the view that the conduct of the advocate recorded in the impugned order may amount to infamous conduct and it may also, prima facie, amount to a criminal contempt., We, therefore, while disposing of this appeal, propose to issue a show‑cause notice to the advocate calling upon him to remain present before this Supreme Court of India., Hence, we set aside the second part of the order by which the bail granted to the appellants was cancelled. We restore the order dated 13 December 2022 of the High Court of Judicature at Allahabad granting bail to the appellants till the disposal of the appeal., We make it clear that as and when the appeal is fixed for hearing, if the appellants seek an unwarranted adjournment, it will be open for the Court to proceed with the hearing of the Criminal Appeal by appointing an advocate as an amicus curiae., We make it clear that the High Court of Judicature at Allahabad will hear the application for bail in the connected Criminal Appeal in accordance with law., December 01, 2023. Petition(s) for Special Leave to Appeal (Criminal) No(s). 8615/2023 (Arising out of impugned interim order dated 26‑04‑2023 in Criminal Appeal No. 9612/2022 passed by the High Court of Judicature at Allahabad) Date: 01‑12‑2023. This matter was called on for hearing today., For Petitioners: Mr. Viraj Kadam, Advocate; Mr. Soumya Dutta, Advocate on Record; Mr. Siddhant Upmanyu, Advocate. For Respondents: Mr. Shantanu Krishna, Advocate on Record; Mr. Sidharth Sarthi, Advocate; Ms. Tulika Mukherjee, Advocate on Record; Mr. Purnendu Bajpai, Advocate; Ms. Aastha Shrestha, Advocate., Upon hearing the counsel the Supreme Court of India made the following: Leave granted. The appeal is disposed of in terms of the signed order. Pending applications also stand disposed of., We, therefore, while disposing of this appeal, propose to issue a show‑cause notice to the advocate calling upon him to remain present before this Supreme Court of India. Issue notice to Mr. Anil Kumar Srivastava, advocate calling upon him to appear before this Supreme Court of India in person on 22 January 2024. A copy of this order shall be forwarded along with the notice. Notice be forwarded to the Registrar General of the High Court of Judicature at Allahabad for effecting service on the advocate. As the appellants were represented by the said advocate, we direct the appellants to also forward a copy of this order to the learned Advocate. (Signed order is placed on the file.)
id_836	0	CRRFC No.2/2020 and CRA No.3665/2020 Reserved on 05.04.2022 Delivered on 15.06.2022 These appeals came up for judgment on this day. Justice Subodh Abhyankar passed the following: This criminal reference has been sent by the Fifth Additional Sessions Judge, Indore under Section 366 of the Criminal Procedure Code for confirming the capital sentence awarded to the present appellant. The appellant has also preferred a separate appeal assailing the impugned judgment dated 24.02.2020 passed in Special Police Litigation Case No.53 of 2020 as he stands convicted by the trial court as under: Conviction, Sentence, Section, Act, Imprisonment, Fine, Imprisonment in lieu of Fine – 363 IPC – Five years – Rs.1,000 – 5 months; 366A IPC – Five years – Rs.1,000 – 5 months; 376B IPC – Life Imprisonment – Rs.1,000 – 5 months; 302 IPC – Death Sentence – Rs.1,000 – 5 months; 201 IPC – Five years – Rs.1,000 – 5 months; 5(m) read with Protection of Children from Sexual Offences Act – Life Imprisonment – Rs.1,000 – 5 months. , In brief, the facts giving rise to the present appeal are that on 02.12.2019, Party Witness 1, father of the deceased girl, along with his wife Party Witness 2 lodged a report that he was staying at a footpath opposite Sai Mandir, Mhow Road, Mhow and was engaged in cleaning work near the railway station, while Party Witness 2 was living with him as his wife. They also have a daughter of about four years. On 01.12.2019, at around 11 o’clock at night, while they were sleeping with their daughter, another person named Raju, a garbage collector, was also sleeping nearby. He got up around 5 o’clock on the morning of 02.12.2019 and saw his four‑year‑old daughter missing. He and his wife searched the nearby area and discovered a dilapidated bungalow behind Prashanti Hospital where a girl's body was lying on a blue plastic sheet, her underwear missing, the frock lifted above her waist and her vagina swollen. A report was lodged that an unidentified person had taken the girl while she was sleeping, committed rape and then murdered her. A case at Crime No.485 of 2019 under Sections 363, 366, 376, 376A, 376B, 302 and 201 of the Indian Penal Code and Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 was registered. , During the course of investigation, as a crowd gathered around the girl's body, the police were unable to prepare a lash Panchnama (inquest) at the spot and the body was immediately sent to Madhya Bharat Hospital, Mhow where Safina forms were also issued and a lash Panchnama was prepared. Post‑mortem was conducted by Party Witness 15, Dr. M. K. Mahobiya, and Party Witness 19, Dr. Rupali Joshi. The place of incident was thoroughly investigated and various samples were obtained from the soil and the plastic sheet on which the deceased was lying. A white metal earring was also seized from the spot. On 04.12.2019, CCTV footage was searched and a person was spotted running while holding a girl. The person was clearly visible in the CCTV cameras of Chopra Vatika, wearing a black jacket and white shoes, and also in the CCTV footage of Anand. The footage was procured on three different pen drives through Sub‑Inspector Ravindra Panwar. The person spotted in the CCTV footage was identified by local residents Virendra of Rupali Pansadan and Gajani @ Ashish as the present appellant Ankit Vijayvargiya, who resides in front of Prashanti Hospital and usually comes to smoke bidi in his shop. Panchnamas to this effect were prepared. The appellant was found at his house, identified himself as Ankit Vijayvargiya and, when questioned about the incident, confessed to having committed the offence. After his arrest, his black jacket, white shoes, an earring and a mobile phone were seized under Section 27 of the Evidence Act. , According to the accused, he had taken the deceased girl while she was sleeping in front of Sai Mandir and then took her to a nearby old dilapidated bungalow where he committed rape and, as she was crying, he also strangulated her. The appellant was medically examined and, after obtaining permission from the Inspector General of Police and the trial court, his DNA test was conducted. During the investigation, the digital video recorder relating to the CCTV footage was also seized and a charge‑sheet was filed against the appellant under the aforesaid sections before the trial court, which, after recording the evidence, convicted the appellant under those sections and awarded him the capital sentence. , Counsel for the appellant submitted that the case is purely based on circumstantial evidence and that the appellant has been falsely implicated on the basis of CCTV footage whose identification cannot be verified distinctly. Counsel also submitted that the death penalty awarded to the appellant is excessive as this is not one of the rarest of rare cases where death penalty is mandatory, and that the appellant, a young man aged 20 years, has a full life ahead and no criminal antecedents. Hence, the death sentence may be remitted to life imprisonment if this High Court concludes that no interference is warranted in the appellant's conviction. , Shri S. K. Meena, counsel appearing for the appellant, relied upon various decisions rendered by the Honorable Supreme Court in the case of Sebastian @ Chevithiyan v. State of Kerala (Criminal Appeal Nos. 1568‑1569 of 2008 dated 09.10.2009), Ravi v. State of Maharashtra (Criminal Appeal Nos. 1488‑1489 of 2018 dated 03.10.2019), Vinod alias Rahul Chouhtha v. State of Madhya Pradesh (reported as 2018 SCC OnLine MP 466), State of Madhya Pradesh v. Naveen @ Ajay (reported as 2018 SCC OnLine MP 952) and Anvar P. V. v. P. K. Basheer and others (2014) 10 SCC 473. , Counsel for the appellant also drew the attention of this High Court to a recent decision rendered by the Honorable Supreme Court in the case of Mohammad Firoz v. State of Madhya Pradesh, wherein, under almost similar circumstances, the Supreme Court reduced the sentence from capital punishment to a period of twenty years imprisonment only. It was submitted that in Mohammad Firoz (supra) the deceased was also four years old and the appellant was aged 28 years; the death was due to smothering caused by pressure on the mouth and neck and excessive injury to the genital organ. Accordingly, it is submitted that in the present case the sentence awarded to the appellant should be reduced in the same manner as in Mohammad Firoz (supra). , Counsel for the respondent/State opposed the prayer and submitted that no interference is called for as the learned judge of the trial court rightly appreciated the evidence on record and concluded that no penalty lesser than the capital punishment would be appropriate to do proper justice. Counsel stated that the deceased was a four‑year‑old girl who had a full life ahead, which was cut short by the appellant due to his salacious mindset, and that the appellant is a pervert with no place in society. Counsel also referred to a recent decision of a coordinate bench of this High Court in the case of Irfan @ Bhayu Mevati v. State of Madhya Pradesh (Criminal Appeal No. 7215 of 2018 dated 09.09.2021), wherein the allegation was of violent gang rape of a seven‑year‑old girl. , From the record, it is found that the accused, in his statement recorded under Section 313 of the Criminal Procedure Code, claimed that at the time of the incident his wife had gone for delivery to her matrimonial home. Defence Witness 1, Darshna, and Defence Witness 2, Kalabai, were examined. Defence Witness 1 stated that the appellant was with her the entire night when the incident took place, which contradicts the accused's statement. The prosecution examined thirty witnesses in support of its case. The FIR was lodged on 02.12.2019 at 12:11 AM about the incident that took place during the intervening night of 01.12.2019 and 02.12.2019 between 23:00 hours and 05:00 hours. The FIR was lodged by the father of the deceased, Vishal Chouhan, alleging that his four‑year‑old daughter was taken away by an unknown person while she was sleeping with his wife and subsequently her body was found. , The post‑mortem conducted by Party Witness 15, Dr. M. K. Mahobiya, and Party Witness 19, Dr. Rupali Joshi, found external signs of froth coming out of the nostrils and mouth, abrasions on both sides of the neck possibly caused by nails, and 2‑3 abrasions on each forearm and thigh. Internally, there was a fracture of the neck, fractures of the cricoid and hyoid cartilages, crushing of the esophagus and windpipe, and blood in the vagina. The death was ante‑mortem and caused within 24 hours, with the cause of death being asphyxia due to strangulation. Party Witness 19 testified that the deceased's hymen was ruptured with fresh injury and blood, and that such an injury could be caused by insertion of an object. Party Witness 21, Dr. Hansraj Verma, examined the appellant and found no injuries on his genitalia and no smegma present. , It is not disputed that there is no eyewitness account and the investigation revolves around the CCTV footage coupled with forensic reports. The prosecution examined Party Witness 10, Virendra Chouhan; Party Witness 12, Ashish @ Gajani; Party Witness 18, Hemant Chouhan; and Party Witness 24, Deepak Chouhan. Virendra Chouhan stated that he has known the appellant Ankit for about three years as the appellant used to purchase bidi/cigarettes from his paan‑bidi shop near the railway station and that he had seen the appellant in a video clip shown by the police on 04.12.2019, identifying him immediately. In cross‑examination he denied ever having seen Ankit before. Party Witness 11, Arvind Guru, a pujari at Mahadev Temple where eight CCTV cameras are installed, prepared two pen drives and a panchnama (Exhibit P/14) and a certificate under Section 65‑B of the Evidence Act (Exhibit P/22). Party Witness 12, Ashish @ Gajani, testified that on the night of the incident he was sitting near a fire, saw the appellant attempting to molest an elderly woman, and, after the appellant fled, identified him in the CCTV footage. He admitted that Ankit was his friend but denied that Ankit consumed liquor. He also denied that the appellant was wearing a blue jacket at the time, stating the jacket was black. , Party Witness 13, Shailendra Shukla, the tent‑house owner, provided CCTV footage (Exhibit P/15) recovered from his office at Villas Square, Mhow, saved on three pen drives. Additional CCTV footage was seized from the cameras of Sai Temple through Party Witness 14, Subhash (son of Vasudev) (Exhibit A/3). Party Witness 18, Hemant Chouhan, was a seizure witness of CCTV footage (Exhibit P/13) saved on three pen drives, and his panchnama was prepared (Exhibits P/15 to P/19). He also witnessed the arrest memo of the appellant (Exhibit P/29) and the recovery of the appellant's black jacket, white shoes, mobile phone and white earring (Exhibit P/30). , Four Forensic Science Laboratory reports (Exhibits P/50, P/51, P/52 and P/53) and two additional reports (Exhibits P/92 and P/93) were proved. Exhibit P/50 listed articles sent to the Forensic Science Laboratory, Sagar; Exhibit P/52 listed viscera samples; and the final report (Exhibits P/92 and P/93) was positive, showing that the DNA profile of the articles from the deceased matched the male DNA profile of the articles seized from the appellant. This DNA report is substantial proof of the appellant's involvement, and there is no reason for this High Court to take a different view from that of the trial court. Accordingly, the finding of guilt of the appellant is affirmed. , Regarding sentencing, the trial proceeded on a day‑to‑day basis, commencing on 12.12.2019 and concluding with judgment delivered by the learned judge of the trial court on 24.02.2020. The accused, in his statement under Section 313 of the Criminal Procedure Code, claimed he was taken into custody on the 2nd, beaten by police, had a little girl, was innocent and that his wife had gone for delivery. The order sheets reveal that judgment was delivered at 1:00 PM on 24.02.2020, finding him guilty, and at 5:00 PM the appellant was sentenced to capital punishment. The learned judge noted that the appellant, being married and a father of a minor daughter, committed the heinous offence of raping a four‑year‑old girl, and when the victim began to cry, he covered her mouth, strangulated her, and caused fractures of the cricoid and hyoid cartilages and damage to the windpipe, demonstrating extreme cruelty. Referring to various Supreme Court judgments, the trial court concluded that the case falls within the category of the rarest of rare and the appellant is entitled to capital punishment. , The Supreme Court judgment in Mohammad Firoz (supra) reads: “Once again one of the most barbaric and ugly human faces has surfaced. A tiny bud‑like girl was smothered by the appellant before she could blossom in this world… In the opinion of the Court, any sympathy shown to the appellant would lead to miscarriage of justice.” However, it has been noted that in a series of judgments this Court has not treated such a case as the rarest of rare. The Court cited Bachan Singh v. State of Punjab, stating that death penalty may be imposed only in the gravest cases of extreme culpability, and Machhi Singh v. State of Punjab, emphasizing that the guidelines must be applied to each case. The Court also referred to Shatrughna Baban Meshram v. State of Maharashtra, observing that while Section 302 IPC carries a death penalty, Section 376A IPC allows a wider spectrum of punishment. Considering the facts of the present case, the Court deemed it appropriate to commute the death sentence to imprisonment for life for the offence punishable under Section 302 IPC. Since Section 376A IPC is also applicable, the Court imposed imprisonment for a period of twenty years instead of imprisonment for the remainder of the appellant’s natural life for the offence under Section 376A IPC. The convictions and sentences for the other offences under the Indian Penal Code and the Protection of Children from Sexual Offences Act are affirmed, and all punishments shall run concurrently.
id_836	1	Under the heading Internal Injuries the corresponding observations in Column 21 were: evidence of a tear in the posterior vaginal wall with merging of the vaginal and anal canal (perineal tear). The surface was ragged, margins irregular, blood infiltrated and reddish, extending and tearing (perforating) the rectum, corresponding to Injury 17 under Column 17., On the effect of the injuries and the cause of death, the report stated: whether the ante‑mortem injuries found on the dead body were sufficient in the ordinary course of nature to cause death – Yes. If yes, which of the injuries were individually sufficient in the ordinary course of nature to cause death and which collectively are sufficient? Injury 17 under Column 17 with its corresponding internal injuries mentioned under Column 21 and its consequences. Opinion as to the cause of death: shock and haemorrhage following perineal tear with multiple injuries., Whereas in the case of Mohd. Firoz (supra), the injuries suffered by the victim and the resultant death have been found to be as follows: the post‑mortem of the victim was conducted by Dr. Pradeep Gangadhar Dixit, Professor and Head of Department in Forensic Medicine, Medical College, Nagpur, on 30 April 2013, along with his colleagues. He recorded the following in the post‑mortem note (Exhibit P‑44)., On examination of the external genitals, the labia majora and labia minora were contused, oedematous with blue discolouration. A superficial partially healed vulval laceration was present at the six‑o’clock position measuring 0.3 cm. The vaginal canal was oedematous and hyperemic. The hymen was torn at the three‑, six‑ and seven‑o’clock positions with dilatation of the hymenal opening. The urethral meatus was oedematous and bruised., The following injuries were found on the body of the deceased: a partially healed lacerated wound over the upper lip in the midline involving the mucosal area measuring 0.2 cm, muscle‑deep, with surrounding contusion and bluish discoloration; a similar partially healed lacerated wound over the lower lip measuring 0.2 cm; an abrasion over the lateral aspect of the right side of the neck, three centimetres below the tip of the right mastoid bone, measuring 2 cm and dark brown; a second abrasion two centimetres below the first, measuring 2 cm by 0.3 cm; an abrasion over the right submandibular region measuring 0.3 cm; an abrasion over the nape of the neck on the right side at the level of the C‑7 vertebra measuring 0.4 cm by 0.4 cm; an abrasion over the right infrascapular region measuring 0.2 cm; an abrasion over the left scapular region measuring 1.5 cm by 0.5 cm; multiple abrasions over the lower portion of the stomach on the right side varying from 0.3 cm by 0.2 cm to 0.2 cm by 0.1 cm; multiple linear abrasions over the posterior aspect of the left thigh, middle one‑third, varying from 4 cm by 0.2 cm to 3 cm by 0.1 cm; a tracheotomy wound over the anterior aspect of the neck with stitches in situ performed for ventilator support; a hole on the right side of the neck made to assess central venous pressure; puncture marks over both elbows, the upper portion of the right wrist, the dorsum of the right hand and both legs for administering intravenous fluids., On conducting internal examination of the body, the following were found: symptoms of pneumonia in the right lung; blood clotted over the internal muscles of the neck; all the organs were congested; the brain was edematous., The doctor deposed that all the injuries found on the body were ante‑mortem and kept the opinion regarding the cause of death reserved. Thereafter, on 15 May 2013, the histopathology report (Exhibit P‑46) was received from the Pathology Department, Medical College, Nagpur, in which the final cause of death reported was bronchopneumonia and cerebral hypoxia, caused by smothering of the nose and mouth. In this case, the Supreme Court has not gone into the technical ground of whether the case falls under Section 300 of the Indian Penal Code., On the foregoing discussion, the High Court is of the considered view that, with the parameters of cruelty set so high nowadays for an offence to fall under the ambit of the rarest of rare, as recorded by the Supreme Court in the case of Mohammad Firoz (supra) (see paragraph 40 supra), it is, if not impossible, very difficult for any person to receive the death penalty, no matter how diabolic the actions are. It is also seen that even when the death penalty of an accused is affirmed by the Supreme Court, it would still not be acted upon, leading to further suffering by the victims of heinous crimes., The kin of such victims, who are also victims, spend their lifetime hoping for some solace and justice, but all their hopes are crushed by the procedural system. The High Court is of the view that capital punishment which is not awarded or executed within a reasonable time loses its importance as a deterrent, as people have a very short memory and such offences usually fade into oblivion, awaiting the next one., In such circumstances, the High Court is of the considered opinion that the Government must reconsider the provision of the death penalty as a mode of punishment and deterrence so that at least the victims of such crimes can move on with their lives, accepting their fate, and be saved from nurturing false hope for decades., Considering the totality of the evidence brought on record, viz., the death sentence was awarded to the appellant on the same day on which he was found guilty, depriving the appellant of his valuable right to bring to the notice of the court any mitigating circumstances in his favour, the injuries suffered by the victim, and the fact that the appellant, who is a father of a minor daughter, is thirty years old with no criminal record, chances of his rehabilitation cannot be ruled out, as also the various decisions rendered by the Supreme Court dealing with the subject matter, while affirming the conviction of the appellant as recorded by the Trial Court, we find it fit to impose a sentence of twenty years instead of the death penalty on the appellant., The present Criminal Reference Capital No. 02 of 2020 is decided accordingly, and Criminal Appeal No. 3665 of 2020 filed by the appellant is hereby partly allowed.
id_837	0	No. PR/SCI/2021/01/02 Date: 28.01.2021 Supreme Court of India observes 71st Anniversary: Doors of Justice Remained Open Despite Pandemic, The Supreme Court of India held its inaugural sitting on 28 January 1950 and has completed 71 years of its functioning. In all these years the Apex Court, under the mandate given to it by the Constitution of India, has relentlessly marched towards ensuring the protection of rights and liberties of the citizens, upholding rule of law and the constitutional values., The Supreme Court of India was faced with various challenges in its journey, but it remained committed to its duties and ensured that access to justice remains unhindered. One major and unprecedented challenge recently faced in the year 2020 was the widespread of highly contagious coronavirus. Despite the nationwide lockdown announced from 23 March 2020, the Supreme Court of India ensured access to justice remains unabated., During these unprecedented challenges, the Supreme Court of India remained functional throughout, though the number of benches were reduced. Beyond the usual minimum required 190 days of court sittings in a calendar year, the Supreme Court of India was functional for 231 days, including 13 vacation sittings in the year 2020., The Registry also remained functional for 271 days as against an average of 268 days in the previous three years. The Registry's working strength was affected considerably with 408 officials and staff infected with Coronavirus Disease 2019 and an unfortunate loss of life of one official. However, almost 99 percent of the officials and staff who reported positive for the infection were asymptomatic or had mild symptoms., This early detection and cure was possible due to rigorous implementation of Coronavirus Disease 2019 protocols and regular testing of officials and staff at periodic intervals, strict contact tracing mechanism and sanitisation procedure. Despite technological constraints and other challenges of reduced workforce, Coronavirus Disease 2019 protocols, 43,713 hearings were held by 1,998 benches through video conferencing mode till 31 December 2020.
id_838	0	Date of Decision: 25th August 2023. Civil Suit (Commercial) 604/2022 and Interim Application 14117/2022. Through: Mr. Yatinder Garg, Mr. Akshay Maloo and Ms. Rimjhim Tiwari, Advocates versus Through: Mr. Piyush Beriwal, Mr. Sahaj Garg, Ms. Disha Choudhary and Ms. Anandita Aggarwal, Advocates for defendants 38 and 39. Mr. Mrinal Ojha, Mr. Debarshi Dutta, Mr. Anand Raja and Ms. Tanya Choudhary, Advocates for defendant 22., The hearing was conducted in hybrid mode. The present suit has been filed by the plaintiff Star India Private Limited seeking protection against unauthorized, illegal distribution of the film Brahmastra Part One: Shiva. The plaintiff is a leading production and distribution company in India which has produced a number of Hindi films as set out in the plaint. One such cinematographic film was Brahmastra Part One: Shiva released in 2022 starring Ranbir Kapoor, Alia Bhatt, Mouni Roy, Amitabh Bachchan, Shah Rukh Khan and many others., The defendants in the suit are as follows: Defendant numbers 1 to 18 – rogue websites; Defendant numbers 19 to 21 – co‑producers of the film; Defendant numbers 22 to 28 – Domain Name Registrars; Defendant numbers 29 to 37 – Internet Service Providers; Defendant numbers 38 and 39 – Department of Telecommunications and Ministry of Electronics and Information Technology; Defendant numbers 41 to 359 – additional rogue websites impleaded during the pendency of the present suit., The film was co‑produced with defendants 19 to 21 namely M/s Dharma Productions Private Limited, Mr. Ayan Mukerjee and Mr. Ranbir Kapoor respectively. The film was released on 9th September 2022., The plaintiff apprehended that the rogue websites, defendants 1 to 18, were likely to broadcast or communicate infringing copies of the film on various websites, which would directly impact the plaintiff’s business and erode the value of the film besides infringing its copyright. At the inception of proceedings, when the suit was initially filed only against defendants 1 to 39, the Hon'ble Supreme Court of India granted an interim injunction on 2nd September 2022 in the following terms: There is no gain saying that piracy has to be curbed and needs to be dealt with a heavy hand and injunction against screening of copyrighted content by rogue websites ought to be granted. This position is acknowledged and reaffirmed in several decisions, for example Department of Electronics and Information Technology v. Star India Private Limited, 2016 SCC OnLine Delhi 4160 and UTV Software Communication Ltd. The legal position with regard to grant of dynamic injunctions is settled in UTV Software Communication Ltd. and learned counsel for the plaintiff is right in his submission that several orders have been passed by this Court in the past restraining rogue websites., Accordingly, the following directions are issued: (a) Defendants 1 to 18 and all others acting for and/or on their behalf are restrained from in any manner hosting, streaming, retransmitting, exhibiting, making available for viewing and downloading, providing access to and/or communicating to the public, displaying, uploading, modifying, publishing, updating and/or sharing on their websites through the internet or any other platform the film 'Brahmastra Part One: Shiva' and related contents, till the next date of hearing. (b) Defendants 22 to 28, who are the Domain Name Registrars, shall suspend/block the domain name registrations of the respective defendants as mentioned in the table at paragraph 20 above. (c) Defendants 22 to 28 shall provide complete details such as name, address, email address, IP address and phone numbers of defendants 1 to 18. (d) Defendants 29 to 37 shall block access to the various websites identified by the plaintiff and defendants 38 and 39, i.e., Department of Telecommunications and Ministry of Electronics and Information Technology, shall issue necessary notifications calling upon various Internet Service Providers to block access to the websites of defendants 1 to 18., The plaintiff is given liberty to file an appropriate application to array other rogue websites as and when the same are discovered in the future., The plaintiff shall comply with the provisions of Order 39 Rule 3 of the Code of Civil Procedure within a period of one week from today., Thereafter, by subsequent orders, the said injunction has been extended by the Joint Registrar to other rogue websites as also mirror websites being defendants 41 to 359., It is the case of the plaintiff that the copyright in the film is not in dispute and there were several mirror websites which also cropped up during the pendency of the present suit., Despite knowledge of the order dated 2nd September 2022 passed by this Court, defendants 1‑3 and 6‑11 continued to infringe the plaintiff’s content and to circumvent the Court orders by creating mirror or redirect rogue websites of the domains already blocked by the Internet Service Providers and Department of Telecommunications. The details are set out below:, Original Websites – Mirror Websites: 7movierulez.tc (Defendant No.1) – 7movierulzfree.co (Defendant No.58); 7movierulz.watch (Defendant No.7) – 7movierulz.zone (Defendant No.145); 7movierulz.biz (Defendant No.227); 7movierulz.win (Defendant No.4); vegamovies.wtf (Defendant No.2) – vegamovies.blog (Defendant No.219), vegamovies.rodeo (Defendant No.350); Extramovies.pic (Defendant No.3) – extramovies.loan (Defendant No.), extramovies.autos (Defendant No.9); 9xmovies.yoga (Defendant No.4) – 9xmovie.mom (Defendant No.5); Cinevood.vip (Defendant No.6) – cinevood.help (Defendant No.238); full4movies.store (Defendant No.7) – full4movies.media (Defendant No.), full4movies.team (Defendant No.334); Hdmovie2.click (Defendant No.8) – hdmovie2.cx (Defendant No.169); yomovies.skin (Defendant No.9) – yomovies.guru (Defendant No.268); Prmovies.wiki (Defendant No.261) – prmovies.wtf (Defendant No.10); prmovies.space (Defendant No.) – movierulzhd.lol (Defendant No.11); movierulzhd.world (Defendant No.), movierulzhd.pics (Defendant No.), movierulzhd.world (Defendant No.339)., It is submitted by senior counsel for the plaintiff that evidence has been placed on record to show that these mirror websites were in fact illegally broadcasting the plaintiff’s film Brahmastra Part One: Shiva. Illustratively, a screenshot of the plaintiff’s film being broadcast on one of the defendant rogue websites is provided., In view thereof, senior counsel for the plaintiff submits that this is a case where the decree along with heavy costs is liable to be granted against all the websites which have been impleaded as defendants in this matter., Piracy of cinematographic films is one of the biggest causes for losses in the film industry. Judicial pronouncements over the years have protected the rights of producers in cinematographic films. Various legislative steps have been taken to curb piracy. Recently, amendments have been made in the Cinematograph Act, 1952 to deal with piracy in a much stricter manner. The Cinematograph (Amendment) Act, 2023 was enacted and notified on 4th August 2023. The relevant provisions are as follows: After section 6A of the principal Act, the following sections shall be inserted: 6AA – No person shall use any audio‑visual recording device in a place licensed to exhibit films with the intention of making or transmitting or attempting to make or transmit or abetting the making or transmission of an infringing copy of such film or a part thereof. Explanation – For the purposes of this section, the expression audio‑visual recording device means a digital or analogue photographic or video camera, or any other technology or device capable of enabling the recording or transmission of a copyrighted cinematographic film or any part thereof, regardless of whether audio‑visual recording is the sole or primary purpose of the device. 6AB – No person shall use or abet the use of an infringing copy of any film to exhibit to the public for profit (a) at a place of exhibition which has not been licensed under this Act or the rules made thereunder; or (b) in a manner that amounts to infringement of copyright under the provisions of the Copyright Act, 1957 or any other law for the time being in force. In section 7 of the principal Act, after sub‑section (1), the following sub‑section shall be inserted: (1A) Save as otherwise provided in section 52 of the Copyright Act, 1957, if any person contravenes the provisions of section 6AA or section 6AB, he shall be punishable with imprisonment for a term not less than three months but may extend to three years and with a fine not less than three lakh rupees but may extend to five percent of the audited gross production cost., The present suit reveals that the mushrooming of websites has become the norm, especially with respect to popular copyrighted content. The rights of the plaintiff are not in doubt. The Domain Name Registrars, Department of Telecommunications, Ministry of Electronics and Information Technology and Internet Service Providers have all given effect to the various orders passed in this case. However, in most of these cases the identity of the persons or entities running these infringing websites remains anonymous or known only sometimes to the Domain Name Registrars. Under such circumstances, insofar as the rogue websites and mirror websites are concerned, since there is no representation or defence filed, a permanent injunction restraining infringement is liable to be granted., Accordingly, the suit is decreed in terms of paragraph 69(i) of the plaint in respect of all the rogue websites i.e., defendants 1 to 18 and 39 to 359. The prayer reads: In light of the foregoing, it is most respectfully prayed that this Hon'ble Court may be pleased to pass an order and decree of permanent injunction restraining defendants 1 to 18 and such other websites discovered during the proceedings and notified on affidavit by the plaintiff, their owners, partners, proprietors, officers, servants, employees and all others acting as principal or agent, from in any manner communicating, hosting, streaming, and/or making available for viewing and downloading, without authorization, on their websites or other platforms, the film and related content, so as to infringe the plaintiff’s exclusive rights and copyrights., In addition, considering the large number of websites streaming or found infringing the plaintiff’s copyright, the suit is also decreed against the defendants for damages to the tune of Rs 20,00,000, which will be jointly and severally payable by the mirror websites extracted in paragraph 9 above., The actual costs of the suit are also liable to be awarded to the plaintiff. In view thereof, considering that the present case is a commercial suit, as per the judgment of the Hon'ble Supreme Court in Uflex Ltd. v. Government of Tamil Nadu & Ors. (Civil Appeal Nos. 4862‑4863 of 2021, decided on 17th September 2021) the decree for actual costs is passed., Accordingly, the cost statement shall be filed with the Joint Registrar. The decree sheet shall be drawn., The suit, along with pending applications, is disposed of.
id_839	0	Writ Petition No. 24842 of 2022. The petitioner wife is knocking at the doors of the Writ Court for assailing the order dated 25 November 2022 whereby the learned Additional Principal Judge, Family Court at Bengaluru in Original Suit No. 137 of 2017 having dismissed her application in Interim Application No. 9 (Annexure-A), has refused to club two pending suits for a common trial and disposal. Learned counsel for the petitioner vehemently argues that when the matter essentially relates to the same property and the dispute is between the ex‑spouses, the grant of the subject application was eminently warranted., Learned counsel appearing for the respondent husband opposes the petition with equal vehemence contending that his client’s suit in Original Suit No. 137 of 2017 is for partition, whereas the petitioner’s injunctive suit in Original Suit No. 220 of 2022 is of recent times; the issues to be decided in the former are different from those in the latter; the Writ Petition No. 24842 of 2022 impugned order being the product of discretionary power, the indulgence of the Writ Court is not warranted., Having heard the learned counsel for the parties and having perused the petition papers, the High Court is inclined to grant indulgence in the matter for the following reasons: (a) The parties are ex‑spouses, which is not in dispute, their marriage having been dissolved by the Family Court. The challenge to the Dissolution Decree in Miscellaneous Family Application No. 1850 of 2020 is still pending. However, that pendency is irrelevant inasmuch as even if their spousal status is restored by reversing the decree of dissolution of marriage, every spouse is an independent person qua the other., (b) The respondent husband has filed a partition suit in Original Suit No. 137 of 2017 wherein the petitioner wife is the defendant; similarly, in the petitioner’s injunctive suit in Original Suit No. 220 of 2022 the respondent husband is the defendant; the subject property in both suits is the same. In both suits, pleadings are complete and issues have been framed. The trial has begun in the partition suit, whereas it is yet to begin in the injunctive suit. Obviously, two suits will have their own issues; however, that per se is no ground for denying the request for clubbing, especially when both suits are before the same learned judge., (c) It is also true that in matters of transfer and clubbing of cases, a greater discretion lies with the court in which they are pending. However, it is not a discretion of a Mughal Emperor. Lord Halsbury, more than a century ago in SHARP v. WAKEFIELD, 1891 AC 173, said that discretion means according to rules of reason and justice. Such an approach, at the hands of the court below, is not reflected. What prejudice would be caused to the respondent should these suits be clubbed for the purpose of trial is not forthcoming despite the vociferous submission of the learned counsel appearing for the respondent., (d) When parties are the same, property involved is the same and the court in which the suits are brought is the same, ordinarily the request for clubbing should not be denied, subject to all just exceptions, into which the argued case of the respondent does not fit. This court hastens to add that there is no repugnancy between the issues framed in the partition suit and those in the injunctive suit and therefore, clubbing would save time, energy, and inconvenience of all the stakeholders. Of course, it is left to the judges’ discretion to render a common or separate judgment and decree., In view of the above, this writ petition succeeds; a writ of certiorari is issued quashing the impugned order; the learned trial judge is requested to allow the subject application of the petitioner for clubbing and try both suits together.
id_840	0	Reserved on 22 August 2023, Pronounced on 25 August 2023. Through: Mr. Maninder Singh, Senior Advocate with Mr. Sandeep Sethi, Senior Advocate, Mr. Kunal Tandon, Ms. Niti Jain and Ms. Varnalee Mishra, Advocates versus Through: Mr. Mohit Mathur, Senior Advocate with Mr. B.S. Jakhar, Mr. Vikram Singh Jakhar, Mr. Sandeep Sharma, Advocates., This petition filed under Article 227 of the Constitution impugns the ad‑interim orders dated 17 August 2023 and 18 August 2023 passed by Senior Civil Judge, South West, Dwarka Courts (Trial Court), New Delhi in Civil Suit bearing number 1033/2023 in an application filed by the Respondent under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908. Brief facts., The Petitioner is the original defendant and the Respondent is the original plaintiff in the civil suit., The civil suit was filed on 17 August 2023 for a mandatory and permanent injunction restraining the Petitioner from telecasting, broadcasting or printing news spread by Kapil Sangwan, also known as Nandu of Nandu Gang. The cause of action relates to an episode broadcast by the Petitioner on the afternoon of 17 August 2023, which the Respondent alleges contains false news., The learned Trial Court, by order dated 17 August 2023 at 05:18 PM, issued summons to the Petitioner and passed an ex‑parte ad‑interim order restraining the Petitioner from broadcasting news under the heading Operation Paap, and posted the matter for hearing on 18 August 2023., On 18 August 2023 the learned Trial Court extended the interim order until 23 August 2023 and granted the Petitioner time, as requested, to file a reply. The order records that the next date of 23 August 2023 was fixed for the convenience of the Petitioner., The controversy arises from a broadcast on 17 August 2023 titled ‘Sarji ka Vidhayak Gangster ka Sahayak and Operation Paap’ aired on the channel Times Now Navbharat and on its YouTube handle, wherein the Petitioner sought to highlight a link between the Respondent and a person named Kapil Sangwan, also known as Nandu., The Petitioner’s anchor played an audio recording of a conversation between Kapil Sangwan and the Respondent during the episode. The episode invited five panelists to debate the conversation heard in the recording., The Respondent, aggrieved by the episode, instituted civil suit number 1033/2023 for a permanent and mandatory injunction before the Trial Court. The suit states that the contents of the episode are false, that no prior verification was sought by the Petitioner, and that the Respondent’s attempts to convey the falsity of the news received no response, compelling the Respondent to seek an injunction., Mr. Maninder Singh, Senior Advocate appearing for the Petitioner, submitted that the audio recording played in the episode is true and correct, and that the Petitioner stands by its veracity. He asserted that the debate was based on correct facts., He further submitted that the episode broadcast on 17 August 2023 is absolutely fair, honest and aired in public interest. He relied upon statements made in paragraphs 9(iii) and (iv) of the petition., He stated that the Petitioner is willing to bear the onus of proving at trial that the audio recording is truthful, and that no injunction can be granted by a civil court to restrain the Petitioner; the appropriate remedy for the Respondent is damages. He relied upon the judgment of the Supreme Court in Sardar Charanjit Singh v. Arun Purie and others, 1983 (4) DRJ 86, particularly paragraph 23, which discusses the principle that a defendant intending to plead justification, fair comment or qualified privilege defeats an interim injunction., He argued that the orders dated 17 August 2023 and 18 August 2023 grant an unqualified and absolute injunction, constituting a gag order impermissible in law. He contended that the gag order violates Article 19(1)(a) of the Constitution and cited the judgments of the Supreme Court in Tata Sons v. Greenpeace International and Ors., 2011 SCC Online Del 466, and Dr. Shashi Tharoor v. Arnab Goswami & Anr., 2017 SCC Online Del 12049., He maintained that the balance of convenience is against the grant of such an injunction and that the impugned orders fail to give any reasons for the blanket injunction, relying on the judgment of the Division Bench of this Court in Khushwant Singh and Anr. v. Maneka Gandhi, AIR 2002 Delhi 58., He asserted that the order of the learned Trial Court is without jurisdiction and that the Petitioner is entitled to challenge the orders by filing the present petition under Article 227 of the Constitution without awaiting adjudication of the Respondent’s application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, or availing the statutory remedy of appeal under Order XLIII Rule 1 of the Code of Civil Procedure, citing the Supreme Court judgment in Dahya Lala and Ors. v. Rasul Mahomed Abdul Rahim and Ors., 1963., He referred to an undated criminal complaint filed by the Respondent addressed to the Special Commissioner of Police, Special Cell, Police Headquarters, New Delhi, which was filed with the plaint. He stated that the complaint does not inspire confidence regarding its existence prior to the filing of the civil suit. He also mentioned a notice received by the Petitioner under Section 91 of the Code of Criminal Procedure in FIR No. 166/2023 dated 18 August 2023, asking the Petitioner to deposit the original clip of the Operation Paap telecast. He affirmed that the original recording was handed over to the police in compliance with the notice. He further referred to FIR No. 0880 dated 22 December 2022, alleging extortion, and submitted that these facts lend credence to the episode., Mr. Sandeep Sethi, Senior Advocate appearing for the Petitioner, submitted that the present petition under Article 227 of the Constitution is maintainable because the Petitioner’s fundamental rights have been violated. He relied upon the Supreme Court judgment in Whirlpool Corporation v. Registrar of Trademarks, Mumbai and Ors., 1998 (8) SCC 1., He argued that the learned Trial Court could not have granted an ex‑parte ad‑interim injunction without giving a prior hearing to the Petitioner, and that the Petitioner, being a reputed media house with an established standing, should have been called upon for an explanation before the order was passed on 17 August 2023., Mr. Mohit Mathur, Senior Advocate for the Respondent, stated that the learned Trial Court granted an ad‑interim injunction and issued summons on 17 August 2023 at about 05:18 PM, fixing the matter for hearing on 18 August 2023. He noted that on 18 August 2023 the matter was adjourned to 23 August 2023 at the Petitioner’s request, and that the order recorded the Petitioner’s undertaking not to broadcast the episode until further orders., He contended that the Respondent’s contentions recorded in the order dated 17 August 2023, that the audio recording is false, formed the basis of the injunction, and that the learned Trial Court was well within its jurisdiction to grant such an injunction. He relied upon judgments in Vinai Kumar Saxena v. Aam Aadmi Party and Ors., 2022 SCC Online Del 3093; Hanuman Beniwal and Ors. v. Vinai Mishra and Ors., 2022 SCC Online Del 4882; Patanjali Ayurved Ltd. and Anr. v. Sobhagya Media Pvt. Ltd. (APN Live) and Ors., 01 June 2020; and Dr. Shashi Tharoor v. Arnab Goswami & Anr., He argued that even if the order dated 17 August 2023 is unreasoned, the remedy lies in approaching the Appellate Court under the Code of Civil Procedure, and that a petition under Article 227 is not maintainable. He cited the Supreme Court judgment in Mohd. Yunus v. Mohd. Mustaqim and Ors., 1983., He clarified that the notice under Section 91 of the Code of Criminal Procedure received in FIR No. 166/2023 has no relevance to the Respondent, and that the FIR No. 0880 dated 22 December 2022 contains no allegation against the Respondent., He noted that the Respondent filed complaints against Kapil Sangwan on 19 December 2022, 20 December 2022, 3 July 2023 and 5 July 2023, and that an undated complaint against Kapil Sangwan filed with the civil suit was received by the Assistant Commissioner of Police, South West Region, Special Cell, Delhi on 5 July 2023., He maintained that the defence of the Petitioner and the Respondent’s claims should first be adjudicated by the learned Trial Court and thereafter by the Appellate Court, and therefore the present petition is not maintainable., In rejoinder, Mr. Maninder Singh, Senior Counsel for the Petitioner, acknowledged that the learned Trial Court has jurisdiction to grant an injunction but asserted that the impugned order is a gag order that does not balance the rights of the parties. He stated that where the defence of truth is taken, no injunction should follow., He reiterated that the gag order violates the Petitioner’s fundamental right under Article 19(1)(a) of the Constitution and, in view of the judgment in Whirlpool Corporation v. Registrar of Trademarks, Mumbai, the petition is maintainable., He observed that the learned Trial Court appears to have wrongly understood the Petitioner’s submissions on 18 August 2023 and erred in recording an undertaking by the Petitioner’s counsel., The Delhi High Court considered the submissions of the senior counsel for the parties and perused the record., It is not disputed that the Petitioner has statutory remedies under the Code of Civil Procedure to seek vacation of the ad‑interim orders dated 17 August 2023 and 18 August 2023, either by opposing the pending application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure before the Trial Court or by filing an appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure., The Petitioner contended that it is entitled to maintain the present petition under Article 227 of the Constitution and that the existence of alternative statutory remedies does not bar this petition. The Delhi High Court is not persuaded by this argument and holds that no circumstances justify invoking Article 227 when statutory remedies are available., The Petitioner admitted that the learned Trial Court has jurisdiction to entertain the suit and grant the injunction sought by the Respondent, but maintains that the Respondent is not entitled to the injunction because the Petitioner intends to prove the truth of the audio recording at trial., The defence of truth was not placed before the learned Trial Court on 18 August 2023, and therefore the Court had no occasion to consider it. The Petitioner appeared before the Trial Court on 18 August 2023, sought time to file a reply, but did not file any reply setting out the defence of truth., The Delhi High Court notes that the defence of truth, when raised before the Trial Court, would be appreciated under Section 9 of the Code of Civil Procedure, which empowers the court to grant temporary injunctions. The judgments relied upon by the Petitioner involve civil courts exercising original jurisdiction under Section 9, and the impugned order falls within that jurisdiction., It is settled law that this Court, exercising supervisory power under Article 227, cannot sit in appeal over the decision of the lower court; any appellate power would be beyond its supervisory jurisdiction., There has been no violation of natural justice, as the learned Trial Court, after granting the ad‑interim injunction on 17 August 2023, fixed the next hearing on 18 August 2023. The proceedings recorded on 18 August 2023 are reproduced as follows: [record of proceedings]., The Petitioner was within its right to raise the defence of truth at the hearing on 18 August 2023, to oppose the injunction and its continuation, and to seek an adjournment for filing its reply. However, the Petitioner neither filed a reply nor contested the matter on 18 August 2023 or 23 August 2023., Consequently, the Delhi High Court finds no procedural impropriety by the learned Trial Court on 17 August 2023 or 18 August 2023 that would merit entertaining this petition., The Court also finds merit in the Respondent’s submission that the Petitioner cannot controvert the factual statement recorded in the order dated 18 August 2023 that the Petitioner’s counsel consented to the extension of the injunction until 23 August 2023. The order is conclusive and can be corrected only by approaching the Trial Court, as settled in State of Maharashtra v. Ramdas Shrinivas Nayak and Anr., 1982 2 SCC 463, and Food Corp. of India and Ors. v. Bhanu Lodh and Ors., 2005 3 SCC 618., The Petitioner’s claim that its fundamental right under Article 19(1)(a) is violated is again based on the defence of truth, which should be considered by the Trial Court or the Appellate Court. The Trial Court, exercising jurisdiction under Section 9 of the Code of Civil Procedure, is competent to decide the defence and modify or vacate the injunction., The contention that the order dated 17 August 2023 is unreasoned is a challenge to the merits of the order and can be raised in an appeal., The Delhi High Court holds that the Petitioner has two statutory remedies under the Code of Civil Procedure and therefore the petition under Article 227 is not maintainable. The remedies are: (a) approach the Trial Court for vacating the interim ex‑parte orders; and (b) prefer an appeal against the orders., Section 104 of the Code of Civil Procedure provides that an appeal shall lie from orders specified therein, and Order 43 Rule 1 of the Code of Civil Procedure specifies the categories of orders from which an appeal may be taken., Order 39 Rule 1 of the Code of Civil Procedure allows a court to grant a temporary injunction to restrain acts that may waste, damage, alienate, or otherwise injure property in dispute, until the disposal of the suit or further orders., The Supreme Court in A. Venkatasubbiah Naidu v. S. Chellappan, 2000 7 SCC 695, held that a petition under Article 227 is not maintainable when the party has two alternative remedies under the Code of Civil Procedure. The Court observed that the aggrieved party may either approach the trial court for vacating the interim order or prefer an appeal, and cannot bypass these remedies by invoking Article 227.
id_840	1	Learned Single Judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition. In the light of the direction issued by the High Court that the trial court should pass final orders on the interlocutory application filed by the plaintiff on merits and in accordance with law, we may further add that till such orders are passed by the trial court, status quo as it prevailed immediately preceding the institution of the suit would be maintained by the parties., The Supreme Court in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Others v. Tuticorin Educational Society and Others (2019) 9 SCC 538 categorically held that no petition under Article 227 of the Constitution should be entertained where a specific remedy of appeal is provided under the Code of Civil Procedure. The relevant portion of the judgment reads: \Leave granted. Aggrieved by an order of the High Court passed under Article 227 of the Constitution, vacating an interim order of injunction granted by the trial court, the plaintiffs have come up with this appeal.\, The High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, was directly available, Respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu v. S. Chellappan (2000) 7 SCC 695, this Court held that although no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well recognised principle that the High Court should direct the party to avail himself of such remedies before he resorts to a constitutional remedy., Courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of the Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments or statutory rules and the forums provided therein happen to be quasi‑judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of the Code of Civil Procedure may be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227 even a decree passed in a suit on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why a three‑member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675, pointed out in Radhey Shyam v. Chhabi Nath (2015) 5 SCC 423 that orders of civil courts stand on a different footing from the orders of authorities or tribunals or courts other than judicial/civil courts., Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the Code of Civil Procedure will deter the High Court, not merely as a measure of self‑imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself., The Supreme Court in Mohd. Yunus v. Mohd. Mustaqim and Others (1983) 4 SCC 566 held that the High Court cannot act as an appellate court in a petition filed under Article 227 of the Constitution. The relevant paragraph reads: \The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited to seeing that an inferior court or tribunal functions within the limits of its authority, and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.\, In the facts of the present case, the Delhi High Court is of the opinion that the learned trial court has neither committed any procedural impropriety nor violated principles of natural justice in passing the impugned orders. The learned trial court and the appellate court are competent to deal with the challenge to the impugned orders on its merits and adjudicate upon the defence of truth raised by the petitioner herein., The reliance placed by the petitioner on the judgment of Dahya Lala and Others is not attracted in the facts of this case. In the case before the Supreme Court, it was held that the acts of the Revenue Authorities which were challenged were without any jurisdiction and therefore a petition under Article 227 of the Constitution was held to be maintainable. However, in the present case it is admitted by the petitioner that the learned trial court has jurisdiction to adjudicate the reliefs sought in the suit., The reliance placed by the petitioner on the judgment of Whirlpool Corporation is not attracted in the facts of this case. In that judgment, a writ petition under Article 226 of the Constitution was filed against a show cause notice dated 29.07.1997 issued by the Registrar under Section 56(4) of the Trade and Merchandise Marks Act, 1958. The petitioner contended that the Registrar had no jurisdiction to issue the notice and the contention was upheld, resulting in the quashing of the notice. In the present case there is no dispute that the learned trial court has jurisdiction to entertain the civil suit and adjudicate the reliefs sought in the plaint; therefore the impugned orders are not without jurisdiction., The Supreme Court in Radhey Shyam and Others v. Chhabi Nath and Others (2015) 5 SCC 423 has authoritatively held that the jurisdiction of the High Court under Article 227 is distinct from jurisdiction under Article 226 and judicial orders of the civil court are not amenable to a writ of certiorari under Article 226 of the Constitution. Therefore, no reliance can be placed on the judgment of Whirlpool Corporation for maintaining this petition under Article 227 of the Constitution., In light of the statutory provisions of the Code of Civil Procedure and the remedies available to the petitioner thereunder, the Delhi High Court is not inclined to entertain this petition challenging the impugned orders on merits. It is directed that if the petitioner approaches the learned trial court on or before 28.08.2023 by filing its reply, the trial court shall adjudicate and pass final orders on the interlocutory application filed by the plaintiff on merits and in accordance with law, preferably within one week of filing of the reply. No adjournment shall be sought by either party and the parties shall cooperate with the learned trial court in adjudicating and disposing of the said application., With the aforesaid directions the present petition is disposed of. The pending applications also stand disposed of., It is made clear that the Delhi High Court has not examined the merits of the contentions raised by the parties. The rights and contentions of the parties are left open to be decided by the competent court., The digitally signed copy of this order, duly uploaded on the official website of the Delhi High Court, shall be treated as a certified copy of the order for the purpose of ensuring compliance. No physical copy of the order shall be insisted upon by any authority, entity or litigant.
id_841	0	TA No. 61/3995/2020 Hearing through video conferencing Pronounced on: 12 April 2021. Applicants: Rishav Sharma, aged 25 years, son of Ashok Kumar Sharma, resident of Lower Gadigarh, Jammu; Amarpreet Singh, aged 27 years, son of Harcharan Singh, resident of Indira Nagar, Miran Sahib, Jammu; Satwant Singh, aged 25 years, son of Abtar Singh, resident of Village Karalian, District Samba, Jammu and Kashmir; Mukesh Kumar, aged 23 years, son of Balak Ram, resident of V.P.O. Kanehri, Akhnoor, Jammu and Kashmir; Kapil Sharma, aged 25 years, son of Thuru Ram Sharma, resident of Ward No. 16, Shiva Nagar, Kathua, Jammu and Kashmir; Amandeep Singh, aged 26 years, son of Chatter Pal Singh, resident of Ward No. 10, Near Excise Office, Kathua, Jammu and Kashmir; Mukesh Kumar, aged 27 years, son of Vir Bhushan, resident of House No. 5, Ward No. 3, Tehsil Arnia, Jammu and Kashmir; Raman Preet Singh, aged 30 years, son of Popinder Singh, resident of Village Ichahama Beerwah, Budgam, Jammu and Kashmir. Advocate: Mr. Abhinav Sharma assisted by Mr. V. Magotra., Versus: State of Jammu and Kashmir, through Commissioner Secretary, Home Department, Civil Secretariat, Jammu; Director General of Police, Jammu and Kashmir Government, Jammu; Chairman, Police Recruitment Board, Additional Director General of Police (Armed), Jammu and Kashmir Government, Jammu; Sudheer Singh Charak, son of Uttam Singh Charak, resident of Village Groundra, B.P.O. NAI, Tehsil Chiralla; Ibrar Ul Haq, son of Abdul Basher, resident of Village Kote, P.O. Behrote, Thanamandi; Neeraj Parihar, son of Bodh Raj Parihar, resident of Village Dara Karool, Sarthal; Arwinder Singh, son of Gurcharan Singh, resident of V.P.O. Khour Deonian; Vikas Khullar, son of Balwan Chand, resident of Namrata Boutique, Chowadi, Sainaik Colony; Devinder Singh, son of Amer Singh, resident of Kawalin, B.P.O. Batroo, P.O. Ramsoo, Tehsil Pogal; Abhinav Kotwal, son of Ashok Kumar, resident of Puneja; Athar Nazir Lone, son of Nazir Ahmad Lone, resident of 82-Hardpora Achabal, P.O. Akingam, Police Station Achabal; Anil Parihar, son of Bipin Lal, resident of Village Renkha, B.P.O. Noddi, Nallah, Tehsil Thathri; Abdul Star, son of Shokat Ali, resident of Raika, P.O. Jammu University, Bahu Fort; Mashqoor Ahmed, son of Abdul Latief, resident of B.P.O. Malothi, Tehsil Bhalla; Ishfaq Ahmed Baig, son of Mohd Dilawar Baig, resident of Rashanpora Karalpora, Kupwara; Saqib Hassan, son of Gulam Hassan, resident of Tral-i-Payeen, Tral, Pulwama; Sahil Bhagat, son of Anchal Chand Bhagat, resident of Village Changi, P.O. Sanji More, Tehsil Marheen; Ashak Hussain Bhat, son of Mohd Amin Bhat, resident of 163 Adigam, Kokernag, Anantnag; Stanzin Zangpo, son of Stanzin Gyalsan, resident of Tasu, Leh; Sheikh Shakeel Ahmed, son of Sheikh Muneer Ahmed, resident of Korel; Mohd Yousaf Lone, son of Mohd Ramzan Lone, resident of Mangit, Tehsil Khari; Balbir Singh, son of Isher Singh, resident of Village Khani Khote, Tehsil Arnas; Sharaz Ahmed, son of Kamala, resident of Tehsil Surankote., Rajat Sharma, son of Ajit Kumar Sharma, resident of Village P.O. Ari, Tehsil Mendhar; Kawsar Rahman Wani, son of AB Rahman Wani, resident of Berigam Devsar, Kulgam; Rohit Kumar, son of Sudagar Mal, resident of Jabowal, Tehsil Arnia, Jammu; Arun Sharma, son of Nasib Dass, resident of Village Goshan, Tehsil Maria, Mendrian; Meenakshi Mamoalia, daughter of Sita Ram Mamolia, resident of Village Bandral Kalan, Tehsil Akhnoor; Ishfaq Ahmed Kasana, son of Musthtaq Ahmed, resident of Ladote, P.O. Kalalkass, Tehsil Rajouri; Avinash Khajuria, son of Rajesh Kumar Khajuria, resident of Village Pangali Colony, P.O. Hamirpur Sidhar, Akhnoor; Tawsif Ahmed Shan, son of Gh. Mohd Shan, resident of Damhall Kokernag, Anantnag; Arun Kumar, son of Jagdish Lal, resident of Kangri, Sunderbandi, District Rajouri; Javed Mohd, son of Munshi Mohd, resident of Village Bari Khad, P.O. Smailpur, Bari Brahmana; Rayees Ahmed Bhat, son of Gh. Mohiud din Bhat, resident of Krusam, A/P Pangcheck, Kupwara; Sardar Ali, son of Rehmat Ali, resident of Bain Bajalta, P.O. Bajalta, Jammu; Sonam Choldan, daughter of Tashi Chonjor, resident of Anlay, Tehsil and District Leh; Rajat Kotwal, son of Romesh Chander, resident of Village Chanser Pai, Tehsil Gandoh; Rohit Manhas, son of Pardeep Singh Manhas, resident of Near Post Office Thathri, Thathri. Advocate: Mr. Amit Gupta, Additional Advocate General., Delivered by Hon'ble Mr. Rakesh Sagar Jain, Member (Judge): Applicant Rishav Sharma and seven other applicants have filed the present transfer application. Mr. Amit Gupta, Additional Advocate General appears for official respondents. The order sheet of the Hon'ble High Court of Jammu and Kashmir in Suit Writ Petition No. 630 of 2019 numbered as Transfer Application No. 61/3835/2020 titled Sumeet Sharma and others Vs Union Territory of Jammu and Kashmir and others shows that Transfer Application No. 3835/2020, Transfer Application No. 61/3995/2020, Transfer Application No. 61/3983/2020 and Transfer Application No. 61/3924/2020 were being listed together. As per report of Registry of the Hon'ble High Court in Suit Writ Petition No. 630 of 2019, notices were sent to the private respondents through registered A/D cover on 15 March 2019 which have not been received back served or unserved. Statutory period has also expired. However, respondents No. 5, 7, 8, 9, 18, 27, 29, 32 and 33 appeared in person., The case of applicants is that vide advertisement dated 30 December 2016, applications were invited for posts of Sub Inspector (Executive/Armed Wings) in Jammu and Kashmir police. Applicants seek the quashing of selection and consequential appointment of private respondents No. 4 to 38, who have been illegally, arbitrarily and unjustifiably selected and consequently appointed against the posts of Sub Inspectors (Executive/Armed) advertised vide advertisement notification No. Pers-A-400/2016/75303-403 dated 30 December 2016 issued by respondent No. 2, at the cost of petitioners by blatantly disturbing the category‑wise breakup of posts as notified in the advertisement notice supra; violating the notified preference cum merit criteria as also Rule 7 of the Jammu and Kashmir Special Recruitment Rules, 2015, notified vide SRO 202 of 2015 dated 30 June 2015 made basis of the selection process and thereby illegally directing the quota meant for the petitioners to private respondents. Applicants also seek a direction to the official respondents to consider and consequently treat the petitioners as selected/appointed against the post of Sub Inspectors (Executive/Armed) in Jammu and Kashmir Police in the pay scale of Rs. 9,300‑34,800 plus Rs. 4,240 Grade Pay advertised by advertisement notification No. Pers-A-400/2016/75303-403 dated 30 December 2016 issued by respondent No. 2 and consequently grant the petitioners all service benefits with retrospective effect., We may note the following: Category‑wise breakup of post notified in the advertisement (Table No. 1) and Category‑wise selection of candidates made by the respondents in the Selection list (Table No. 2); Clauses/conditions of the advertisement; Clauses of Special Recruitment Rules; and settled principles of law which are relevant to the dispute in the present petition as below., Category‑wise breakup of post notified in the advertisement (Table No. 1): Executive – 275, 96, 48, 39, 15, 9 total 482; Armed – 100, 35, 18, 15, 5, 3 total 176. Category‑wise selection of candidates in the Selection list (Table No. 2): Executive – 310, 77, 41, 35, 12, 7 total 482; Armed – 65, 54, 25, 19, 8, 5 total 176., Clause No. 5: The candidates shall clearly state their preference for Executive/Armed Wing at the time of filing their online application. This preference‑cum‑merit obtained in the selection process shall form the basis of allocation of Executive/Armed wing to the applicants at the time of final selection. Clause No. 8: The selection of the candidates for the post of Sub Inspectors shall be made on their performance in written test and viva‑voce/personality assessment test vis‑à‑vis number of vacancies in their respective categories. The preference given by the candidates while applying for post either in Executive or in Armed Police plus merit obtained in the written viva‑voce test shall form the basis of allocation of Executive/Armed wing to the applicant at the time of final selection. In case of tie in merit, the preference will be given to the older candidate. The selected candidates shall have to serve in any part of the State as per the order in vogue or as may be issued from time to time., Jammu and Kashmir Special Recruitment Rules, 2015: Rule 5(2): The Selection Committees referred to in sub‑rule (1) shall make the selections as per the provisions of the Jammu and Kashmir Reservation Act, 2004 and rules framed thereunder. Rule 7 – Mode of Selection: (1) The selection agency shall invite applications for recruitment under these rules in respect of district, division or State cadre posts. After assessing the merit of the candidates in a fair and transparent manner, the selection agency shall prepare a select list which shall not exceed the number of vacancies so advertised and furnish the same to the appointing authority within a period of three months from the date of reference of the vacancies., Principles of law: Rajesh Kumar Daria vs. Rajasthan Public Service Commission, (2007) 8 SCC 785, wherein dealing with a similar issue the Hon'ble Apex Court held: 'The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SCs, STs and OBCs under Article 16(4) are vertical reservations. Special reservations in favour of physically handicapped, women, etc. under Articles 16(1) or 15(3) are horizontal reservations. Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class may compete for non‑reserved posts and if they are appointed to the non‑reserved posts on their own merit, their number will not be counted against the quota reserved for the respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category.', So, looking to the rules, advertisement etc. as noted above, the process of selection can be said to consist of the following steps: A. Prepare a master list in order of merit irrespective of preference and also marking the category to which the candidate belongs; B. Pick up one by one candidate from the master list and place them as per their preference into the Executive list or the Armed list. For example: i. advertised posts are 200 in Executive and 100 in Armed; ii. breakup of 200 is 150 in open merit and 50 in other categories; iii. breakup of 100 is 75 in open merit and 25 in other categories; iv. make a consolidated master list of all the 300 posts mentioning against each candidate his preference and category; v. distribute the candidates from the master list as per their preference into the Executive and Armed list till the list of 200 Executive and 100 Armed is exhausted; vi. thereafter, from the leftover candidates in the master list, pick out the candidates of other categories and place them in their respective category to the extent of their quota., The fallacy in the selection procedure adopted by the official respondents can be best demonstrated by the fact that 275 vacancies were advertised in Executive Wing in open merit whereas 310 persons have been selected. According to the official respondents, the extra selection of 35 candidates belong to the other categories and vacancies in those categories have been correspondingly reduced. The procedure adopted by the official respondents is in violation of the settled law that the entire reservation quota will be intact and available in addition to those selected under open competition category., Therefore, without further ado, and indisputably, the selection has not been prepared in accordance with rules and settled law and the validity of the selection lists prepared in pursuance to advertisement notice No. Pers-A-400/2016/75303-403 dated 30 December 2016 cannot be upheld. In view of the facts and circumstances of the case, the selection lists of the Sub Inspector (Executive and Armed) in Jammu and Kashmir Police prepared in pursuance to advertisement notice No. Pers-A-400/2016/75303-403 dated 30 December 2016 are quashed and set aside. Official respondents are directed to prepare the selection list afresh in accordance with law and rules within the earliest period possible from the date of receipt of certified copy of the Order. No costs.
id_842	0	The present appeals are directed against an order passed by the High Court of Judicature at Andhra Pradesh on 3 April 2012 whereby the writ petitions challenging the Errata Notification dated 13 March 2006, published in the Official Gazette of the State of Andhra Pradesh on 6 April 2006 on behalf of Andhra Pradesh Wakf Board, were dismissed. The notification, issued as Part‑I Notifications by Government Heads of Departments and other Officers, corrected earlier omissions concerning service Inam lands attached to the subject institution., The Errata Notification was challenged by the then State of Andhra Pradesh, now the State of Telangana, and the Andhra Pradesh (now Telangana) Infrastructure Development Corporation by filing Writ Petition No. 23578 of 2007 before the High Court of Judicature at Andhra Pradesh. Civil Appeal No. 10770 of 2016 is preferred by the State against the order passed by the High Court in that writ petition, while the Corporation, as transferee from the State of Andhra Pradesh in 1995, has filed Civil Appeal No. 10769 of 2016. Civil Appeals Nos. 10776 and 10777 of 2016 have been preferred by a university to which the State transferred 200 acres of land in the village of Manikonda on 18 March 1998 for the purpose of establishing a university. Civil Appeal No. 10773 of 2016 is filed on behalf of the transferee Messrs Emaar Hills Township Private Limited, inter alia, on the ground that on 6 November 2002 the appellant and the Corporation signed a Memorandum of Understanding setting out the principal terms for the development of the integrated project situated at Manikonda village. Possession of land measuring 535 acres was handed over to the appellant on 29 November 2005, on which the appellant has developed a township. Writ Petition No. 4515 of 2008 was filed by Lanco Hills Technology Park Private Limited and Civil Appeal No. 10768 of 2016 arises out of that writ petition. Civil Appeals No. 10768 and 10775 of 2016 have been filed on behalf of transferees of the Corporation. Civil Appeal No. 10738 of 2016 and Civil Appeals Nos. 10776 and 10777 of 2016 are directed against an order passed by the High Court of Judicature at Andhra Pradesh in exercise of its revisional jurisdiction against an interim order passed by the Andhra Pradesh Wakf Tribunal., The High Court of Judicature at Andhra Pradesh, by the order under challenge, also decided Writ Petition Nos. 17192, 20372 and 20614 of 2007 filed in public interest challenging the alienations made by the State or the Corporation. The High Court gave liberty to these writ petitioners to approach the Wakf Tribunal, wherein a suit filed by the Dargah Hazrath Hussain Shah is pending consideration. The Dargah had challenged the alienations made by the Corporation before the Wakf Tribunal. The present appeals are therefore filed by the State, the Corporation and the assignees from the State and/or Corporation., Background of Hyderabad State and its administration immediately prior to accession and soon thereafter. At the time of Independence, the British gave rulers of the princely states an option to join either India or Pakistan or to remain independent. His Exalted Highness the Nizam of Hyderabad, Mir Osman Ali Khan, declared his unwillingness to participate in the Constituent Assembly of either country on 11 June 1947. Subsequently, Operation Polo was initiated by the Indian Army on 13 September 1948, and the Sovereign surrendered on 17 September 1948. The State of Hyderabad thereafter became part of the Union of India. Major General J. N. Choudhary, the General Officer Commanding-in-Chief Southern Army, was appointed Military Governor for Hyderabad State. The Sovereign issued a Farman on 19 September 1948 investing the Military Governor with the authority to administer the State; this Farman was published in the Extra‑Ordinary Gazette on 20 September 1948. By a further Farman dated 7 August 1949, the Sovereign clarified that all administrative authority vested in the Military Governor, including the power to make regulations, would continue., On 1 December 1949 another Farman appointed Mr. M. K. Vellodi, Indian Civil Service, as Chief Minister, and transferred to him all powers of administration previously vested in the Military Governor., The Military Governor, exercising the authority vested by the Sovereign, introduced the Hyderabad (Abolition of Jagirs) Regulation, 1358 Fasli, to abolish jagirs and provide commutation and interim allowance to jagirdars and hissedars. This Regulation was published in the Extra‑Ordinary Gazette on 15 August 1949. Subsequently, the Chief Minister introduced the Andhra Pradesh (Telangana Area) Jagirs (Commutation) Regulation, 1359 Fasli, dated 25 January 1950, to determine the terms of commutation of jagirs after termination of the interim allowance. Both Regulations were certified by the President under Article 31(6) of the Constitution and, on 18 June 1951, were incorporated into Schedule IX of the Constitution, thereby rendering them immune from being declared void on the ground of inconsistency with Part III of the Constitution., The Hyderabad State had its last Nizam, His Exalted Highness Mir Osman Ali Khan, serving as Rajpramukh from 26 January 1950 to 31 October 1956. General elections were held in Hyderabad State on 27 March 1952 after the adoption of the Constitution of India on 26 January 1950. An elected Chief Minister assumed office on 6 March 1952, holding the position until the creation of the State of Andhra Pradesh on 1 November 1956 by the States Reorganisation Act, 1956, when the Telugu‑speaking region of Hyderabad State merged with Andhra State, the Marathi‑speaking region merged with Bombay State, and the Kannada‑speaking region merged with Mysore State., The validity of the Abolition Regulation and the Commutation Regulation was considered by a Constitution Bench of the Supreme Court of India in Sarwanlal v. State of Hyderabad (now Andhra Pradesh) & Ors. The Court held that although the Military Governor was delegated all authority of the Nizam for administration, the sovereignty of the Nizam was not extinguished and he could issue orders contrary to those of the Military Governor. No evidence showed that the Nizam withdrew the Military Governor’s authority before the Abolition Regulation was promulgated. The authority was withdrawn in December 1949, and the Chief Minister was invested with the same administrative and legislative powers, under which he issued the Commutation Regulation., The Court further observed that the authority of the Military Governor was unrestricted, so the Abolition Regulation could not be challenged as a colourable exercise of legislative authority. The doctrine of invalidity applies only to legislatures whose powers are constitutionally limited. Since the Military Governor’s powers were not fettered, the Regulation was valid. The Chief Minister’s authority under the 1 December 1949 Farman was as extensive as that of the Nizam, and the Commutation Regulation was not liable to be challenged on grounds of lack of legislative competence., The Court also held that the two Regulations are exempt from challenge on the ground of inconsistency with Part III of the Constitution, as they were issued under the Sovereign’s Farman before the Constitution came into force on 26 January 1950., In Sikander Jehan Begum v. A.P. State Government, the Supreme Court held that the Military Governor possessed all authority for administration of the State, including the power to make regulations, and that this authority was transferred to the Chief Minister by the Nizam’s Farman of 1 December 1949., The Military Governor, in exercise of his delegated powers, promulgated the Hyderabad (Abolition of Jagirs) Regulation, 1358‑F, which came into force on 15 August 1949, incorporating all jagir lands into State lands and providing for interim cash payments to jagirdars or hissedars pending final commutation. This was followed by the Hyderabad Jagirs (Commutation) Regulation, 1359‑F, which came into force on 25 January 1950, providing for payment of compensation based on the commuted value of the jagir as determined by the Jagir Administrator., The Military Governor and subsequently the Chief Minister possessed all legislative and executive powers of the Sovereign until the Constitution came into force on 26 January 1950., Background of jagirs, jagirdars and the Jagir Abolition Regulation. The Hyderabad State faced insurgency from 1944‑1945 in Nalgonda and Warangal districts, known as the Telangana area, while forces loyal to the Sovereign also operated. The Sovereign appointed a Royal Commission chaired by Sir Albion Rajkumar Banerji in 1945‑1946 to examine the rights and obligations of jagirdars. The Commission classified jagirs into four categories: Paigahs, Ilaqas of the Premier Nobles, Samasthans, and other jagirs. It recommended codification of the Atiyat Law to resolve succession disputes through special Atiyat Courts. The Abolition and Commutation Regulations were subsequently enacted., The other jagirs identified by the Royal Commission were of two kinds: exempted (Mustasna) and non‑exempted (Ghair Mustasna). A Mustasna jagir was exempt from Diwani jurisdiction, and the power to declare a jagir exempt rested with the Sovereign. The Mashruti (conditional) and Ghair Mashruti (unconditional) Inams were regarded as traditional jagirs. Conditional grants were usually tied to service, whereas unconditional grants were personal honors., Jagirs fell into eight categories; the one relevant to the present appeal is Madad Mash, personal grants conditioned by maintenance, intended for the holder and his family. Jagirs could be granted in perpetuity or for the lifetime of the grantee. Upon the death of a holder, an inquiry determined the successor, and succession disputes were decided by Atiyat Courts. Circular No. 19 of 1332 Fasli (19 March 1923) constituted a Directorate of Atiyat to expedite dispute resolution, while Circular No. 10 of 1338 Fasli (1928) was later repealed by Section 15 of the Atiyat Enquiries Act., Justice V. Ramasubramanian, as a Judge of the Andhra Pradesh High Court, traced the history of land disputes in Raj Kishan Pershad and Ors. v. Joint Collector‑I and Ors. The High Court noted that the Abolition Regulations were enacted in 1949 but did not provide relief to peasants, leading to the establishment of an Agrarian Reforms Committee in 1949. The Committee’s recommendations were accepted by the Government headed by Mr. M. K. Vellodi, resulting in the Hyderabad Tenancy and Agricultural Lands Act, 1950, described as a pioneering land reform legislation., The Abolition Regulation came into force on 15 August 1949 when published in the Official Gazette. Section 4 abolished jagirdars on commencement of the Act; Section 5 contemplated transfer of jagir administration to a Jagir Administrator; Section 6 included the jagir in Diwani and ceased the jagirdar’s powers, rights and liabilities, vesting them in the Jagir Administrator. The statute defined a jagir, the Jagir Administrator, and procedures for appointment, cessation of jagirdars, transfer dates, and powers, rights and liabilities from the appointed day., Special provisions applied to jagirs granted to temples or mosques, limiting the percentage of gross revenue payable to the Government to ten percent and directing that distribution of net income respect the wishes of the grantor and customary usage., The Commutation Regulation came into force on 25 January 1950, providing for commutation of maintenance amounts after termination of the interim allowance payable under Section 14 of the Abolition Regulation. It also contained special provisions for jagirs supporting religious or charitable institutions, specifying government payments of ninety percent of the gross basic sum for religious institutions and fifty percent for charitable institutions, with the recipient released from further service obligations., Thus, by the Abolition Regulation, all jagir lands were incorporated into State lands and administration transferred to a Jagir Administrator appointed by the Government. The Regulation provided interim maintenance allowance until commutation was determined, after which jagirdars or hissedars received cash payments from net annual income. Upon death of a jagirdar or hissedar, his share in net income devolved according to personal law, and the share was inalienable without prior Government sanction, effectively abolishing the original jagir tenure and substituting a hereditary but inalienable personal right to interim maintenance., The Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952 was published in Gazette No. 21 on 14 March 1952 and amended by the Hyderabad Atiyat Enquiries (Amendment) Act, 1956 (Act No. XXVIII of 1956) published on 5 September 1956. The Act defines an Atiyat Court as a court or authority competent to make enquiries into succession claims and rights in Atiyat grants, and defines Atiyat grants, Muntakhabs, Vasiqas, and the holding of such grants. All Atiyat grants, subject to the Andhra Pradesh (Telangana Area) (Abolition of Jagirs) Regulation, 1358‑F, the Hyderabad Abolition of Cash Grants Act, 1952, and the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1954, continue to be held by the holders subject to conditions laid down in the Muntakhabs or Vasiqas and the provisions of this Act.
id_842	1	In the case of Atiyat grants specified in subclause (i) of clause (b) of sub‑section (1) of section 2, Atiyat enquiries and enquiries as to any right, title or interest therein shall, notwithstanding any thing contained in the Telangana (Abolition of Jagirs) Regulation, 1358 Fasli, be held in Atiyat Courts in accordance with the provisions of this Act, and in the course of such inquiries the Atiyat Courts shall also be competent to enquire into claims to succession arising in respect of such grants. Provided that claims to succession arising after the completion of an Atiyat enquiry of any such grant shall not be entertained in any Atiyat Court and all such claims shall be filed in and decided by the competent Civil Court., In the case of Atiyat grants specified in subclauses (ii) to (vi) of clause (b) of sub‑section (1) of section 2, all Atiyat enquiries, enquiries as to claims to succession to, or any right, title or interest therein and matters ancillary thereto shall be held in Atiyat Courts in accordance with the provisions of this Act., In so far as questions of succession, legitimacy, divorce or other questions of personal law are concerned, the final decision of a Civil Court shall be given effect to by the Atiyat Court established under this Act on the decision being brought to its notice by the party concerned or otherwise irrespective of whether the decision of the Atiyat Court was given before or after the decision of the Civil Court., If in the course of any enquiry as to claims to succession, any dispute arises involving questions of succession, legitimacy, divorce or other questions of personal law, the Atiyat Court shall direct the parties to get the dispute decided in the competent Civil Court. On the production of the final decision of the Civil Court, the Atiyat Court shall give effect to such decision., The provisions of this Act shall cease to be applicable (a) to an Atiyat grant specified in sub‑clause (i) of clause (b) of sub‑section (1) of section 2 when the commutation sum has ceased to be payable; (b) to an Atiyat grant specified in sub‑clause (iii) of clause (b) of sub‑section (1) of section 2 when the compensation has ceased to be payable; (c) to an Atiyat grant specified in sub‑clause (v) of clause (b) of sub‑section (1) of section 2 when such grant has ceased to continue; (d) to an Atiyat grant specified in sub‑clause (vi) of clause (b) of sub‑section (1) of section 2 when the compensation has ceased to be payable., The High Court in Raja Ram Chandra Reddy & Anr. v. Rani Shankaramma & Ors. was considering the question of title to the grant or recognition by the Sovereign according to Atiyat Law of Hyderabad. It was held that the original jagir tenure was abolished and from the time of commencement of the Abolition Regulation, the Jagirdars or Hissedars or maintenance holders were only to get cash payments out of the net annual income of the jagir worked out in accordance with the provisions of Section 6. The share of a Jagirdar or Hissedar after his death shall devolve in accordance with his personal law, abrogating thereby the previous law that the succession to the jagir right depended entirely on the recognition or regrant by the Nizam. The question examined therein was as to whether the order of the Chief Minister was protected by sub‑clause (2) of Section 13 of the Enquiries Act having been passed by the Sovereign under his authority., The police action in Hyderabad took place in September 1948. After its termination a series of legislative measures were enacted by the Military Governor by virtue of power conferred on him by a Firman of the Nizam dated 20‑9‑1948. One of these measures is the Hyderabad (Abolition of Jagirs) Regulation, 1358 Fasli (Regulation No. LXXIX of 1358 Fasli) which came into force on 15‑8‑1949. By this Regulation, broadly speaking, all Jagir lands were incorporated into State lands as from the appointed day and the administration of all the Jagirs was transferred to a Jagir Administrator appointed by the Government (Sections 5 and 6). From that date the Jagirdars or Hissedars or maintenance holders were only to get cash payments out of the net annual income of the Jagirs worked out in accordance with the provisions of that Regulation (S. 6). This was to be by way of interim maintenance allowance until commutation for Jagirs is determined (S. 14). It was specifically provided that if a Jagirdar or Hissedar dies, his share in the net income shall devolve in accordance with his personal law (S. 6(8)) abrogating thereby the previous law that the succession to the Jagir right depended entirely on the recognition or regrant thereof by the Nizam. Such share, however, was not alienable without previous sanction of Government. It was also provided after the commencement of the Regulation that no person shall be appointed to be, or be recognised as, a Jagirdar whether in succession to a deceased Jagirdar or otherwise (S. 4). Thus, in effect the original Jagir tenure was abolished and under this Regulation a hereditary but inalienable personal right to receive a portion of the net income thereof by way of interim maintenance was substituted., The Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 (Act No. VIII of 1955) was enacted for abolition of inam lands gifted or given by way of grant by the Sovereign or by a jagirdar etc. Inam means land held under a gift or a grant made by the Nizam or by any Jagirdar, holder of a Samsthan or other competent grantor and continued or confirmed by virtue of a muntakhab or other title deed, with or without the condition of service and coupled with the remission of the whole or part of the land revenue thereon and entered as such in the village records and includes (i) arazi makhta, arazi agrahar and seri inam; and (ii) lands held as inam by virtue of long possession and entered as inam in the village records. Provided that in respect of former Jagir areas, the expression inam shall not include such lands as have not been recognised as inams by the Government after the abolition of the Jagirs. Inamdar means a person holding an inam or a share therein, either for his own benefit or in trust and includes the successor in interest of an inamdar, and (i) where an inamdar is a minor or of unsound mind or an idiot, his lawful guardian; (ii) where an inamdar is a Joint Hindu family, such Joint Hindu family., Section 3 of the Act provides that, notwithstanding anything to the contrary contained in any usage, settlement, contract, grant, sanad, order or other instrument, Act, regulation, rules or order having the force of law and notwithstanding any judgment, decree or order of a Civil, Revenue or Atiyat Court, and with effect from the date of vesting, all inams to which this Act is made applicable under sub‑section (2) of section 1 shall be deemed to have been abolished and shall vest in the State. Save as expressly provided by or under the provisions of this Act and with effect from the date of vesting, the following consequences shall ensue: (a) the provisions of the Land Revenue Act, 1317 Fasli relating to inams, and the provisions of the Andhra Pradesh (Telangana Area) Atiyat Inquiries Act, 1952, Act X of 1952 and other enactments, rules, regulations and circulars in force in respect of Atiyat grants shall, to the extent they are repugnant to the provisions of this Act, not apply and the provisions of the Land Revenue Act, 1317 Fasli relating to un‑alienated lands for purposes of land revenue shall apply to the said inams. Nothing contained in sub‑sections (1) and (2) shall operate as a bar to the recovery by the inamdar of any sum which becomes due to him before the date of vesting by virtue of his rights as inamdar; such sum shall be recoverable by him by any process of law which, but for this Act, would be available to him., Section 12 provides that the compensation payable to the inamdar for the inams abolished under Section 3 shall be the aggregate of the sums specified below: (i) in respect of inam lands registered in the name of the inamdar and kabiz‑e‑kadim under Sections 4 and 5, a sum equal to twenty times the difference between land revenue and judi or quitrent; (ii) in respect of income accruing to the inamdar from the lands registered in the names of his permanent tenant, protected tenant and non‑protected tenant, a sum equal to sixty per cent of the premium charged, as the case may be, under Sections 6, 7 and 8. Section 15 provides that the compensation shall be due as from the date of vesting and shall carry interest at the rate of two and three‑fourths per cent per annum from the date of vesting to the date of payment. The compensation may be paid in cash in full or in annual instalments not exceeding ten, or in bonds either negotiable or not negotiable carrying interest at the rate specified in subsection (1) and of guaranteed face value maturing within a period not exceeding ten years., Justice S. I. Jafri in his book Waqf Laws in India (2015) explained that a waqf is an unconditional and permanent dedication of property with implied detention in the ownership of God in such a manner that the property of the owner may be extinguished and its profit may revert to or be applied for the benefit of mankind, except for purposes prohibited by Islam. Under Muslim law a waqf means dedication by a person embracing the Muslim faith of any property for any purpose recognised by Muslim law as religious, pious or charitable. The dedication must be permanent and the owner must divest himself of such property and hand over possession thereof to the mutawalli. The Waqfs may be divided into two classes: public (for a public, religious or charitable object) and private (for the benefit of the settlor’s family and his descendants, called waqf‑al‑al‑aulad). A waqf is void for uncertainty and can be created by deed or by will; if created by deed and the property is immovable and worth more than Rs 100, it must be registered. A waqf can be revoked only if made by a will and such revocation must occur before the death of the waqif. Once created, the property passes to God and cannot be revoked or divested, even if there are subsequent breaches of the waqf terms or abuse by the mutawalli., There was no particular law dealing with wakf or management of wakf property prior to the enactment of the Wakf Act, 1954 in the erstwhile area governed by the Sovereign. The Hyderabad Endowment Regulations were sanctioned by the Sovereign on 16th Shahban 1358 Hijri (1349 Fasli and 1940 AD) and were published in the Government Gazette (Volume 71, M 6). The Regulations dealt with the management and security of endowed property, which was included in the duties of the Government. The Regulations defined an endowment as any transfer of property made for religious purpose or for purposes of charity or public utility, and defined related terms such as endowment property, endower (vaqif), and the registers (Kitab‑ul‑Avkhat, Kitab‑Maash)., Rule 445 of the Rules relating to Endowment (Government Gazette, Volume 77, M 45) provides that grants subject to the condition of service being royal grants will not be regarded as endowed property nor can proceedings be adopted for registration with regard to them. Rule 447 states that estates subject to the condition of service relating to an institution connected with a conditional grant (Mash) will be regarded as endowed and proceedings will be adopted for entering the said estates in the Book of Endowments; any other properties connected with the institution will also be regarded as endowed and entered in the book of endowments., Section 69 of the 1954 Act repealed the Bengal Charitable Endowments, Public Buildings and Escheats Regulations, 1810; Section 5 of the Religious Endowments Act, 1863; the Charitable Endowments Act, 1890; the Charitable and Religious Trusts Act, 1920; and the Mussalman Wakf Act, 1923. Consequently, those Acts are not applicable to any wakf to which the 1954 Act was made applicable. Sub‑section (2) provides that any law in force in a State immediately before the commencement of the Act that corresponds to this Act shall stand repealed., By Central Act No. 34 of 1964, clause (ii) was modified in Section 3(l) of the 1954 Act. The definition of wakf after amendment reads: wakf means the permanent dedication by a person professing Islam (or any other person) of any movable or immovable property for any purpose recognised by Muslim law as pious, religious or charitable and includes (i) a wakf by user; (ii) grants (including mashrut‑ul‑khidmat) for any purpose recognised by Muslim law as pious, religious or charitable; and (iii) a wakf‑al‑al‑aulad to the extent that the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable., The 1954 Act was amended in 1984 (Amending Act No. 69 of 1984) but none of its provisions were notified to come into force, so the amendments never became effective. The 1954 Act was later repealed by the Wakf Act, 1995 and thereafter amended by the Wakf (Amendment) Act, 2013. Since the issues in the present matter pertain to the period prior to 2013, the statutory provisions then in existence are reproduced as follows: Board means a Board of Wakf established under sub‑section (1) or (2) of section 13 and includes a common Wakf Board established under section 106; list of wakfs means the list of wakfs published under sub‑section (2) of section 5; person interested in a wakf means any person entitled to receive any pecuniary or other benefits from the wakf; Survey Commissioner means the Survey Commissioner of Wakf appointed under sub‑section (1) of section 4 and includes any Additional or Assistant Survey Commissioners of Wakfs; Tribunal means the Tribunal constituted under sub‑section (1) of section 83 having jurisdiction in relation to that area; wakf means the permanent dedication by any person of any movable or immovable property for any purpose recognised by Muslim law as pious, religious or charitable and includes (i) a wakf by user (such wakf shall not cease to be a wakf merely because the user has ceased); (ii) grants, including mashrat‑ul‑khidmat; and (iv) a wakf‑al‑al‑aulad to the extent that the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable; wakif means any person making such dedication., The State Government may, by notification in the Official Gazette, appoint a Survey Commissioner of wakfs and as many Additional or Assistant Survey Commissioners as may be necessary for the purpose of making a survey of wakf in the State. All Additional and Assistant Survey Commissioners shall perform their functions under this Act under the general supervision and control of the Survey Commissioner. The Survey Commissioner shall, after making such enquiry as he may consider necessary, submit his report on wakfs existing at the date of commencement of this Act to the State Government. The State Government may, by notification in the Official Gazette, direct the Survey Commissioner to make a second or subsequent survey of wakf properties, provided that no such second or subsequent survey shall be made until the expiry of a period of twenty years from the date on which the report of the immediately previous survey was submitted., On receipt of a report under sub‑section (3) of Section 4, the State Government shall forward a copy to the Board. The Board shall examine the report and publish in the Official Gazette a list of Sunni wakf or Shia wakfs in the State, whether in existence at the commencement of this Act or coming into existence thereafter, containing such other particulars as may be prescribed. Subject to any rules that may be made under this Act, the general superintendence of all wakf in a State shall vest in the Board. The Board shall ensure that wakf under its superintendence are properly maintained, controlled and administered and that the income thereof is applied to the objects for which such wakfs were created. The Board shall act in conformity with the directions, purposes and any usage or custom of the wakf sanctioned by the school of Muslim law to which the wakf belongs. For the removal of doubts, wakf includes a wakf in relation to which any scheme has been made by any court of law, whether before or after the commencement of this Act. The Board’s functions include taking measures for the recovery of lost properties of any wakf, inspecting wakf properties, accounts, records or deeds, and investigating and determining the nature and extent of wakf property, including conducting surveys where necessary., The Board may itself collect information regarding any property it has reason to believe to be wakf property and, if any question arises whether a particular property is wakf property or whether a wakf is a Sunni wakf or a Shia wakf, it may, after making such enquiry as it may deem fit, decide the question. The decision of the Board on a question under subsection (1) shall, unless revoked or modified by the Tribunal, be final., In the present matter, one Akbar Husaini sought an inam enquiry to the maash of Jagir villages including the village Manikonda on 12th Ardibehisht 1333 Fasli (17 March 1923). Akbar Husaini again submitted a plaint on 9th Amardad 1336 Fasli (15 June 1926) after Syed Akbar Husaini was asked to submit a plaint on 29th Khurdad 1336 Fasli (4 May 1926). The Jagir village of Manikonda was claimed to be a maash land. The Nizam Atiyat Court decided such enquiry on 31 May 1957 in File No. 2/56. The arguments of the parties and the Government Pleader were heard on 9th April 1957., The plaint of Akbar Husaini filed on 9th Amardad 1336 Fasli claimed confirmation of the following mashes as service maash of Dargah of Hazrat Husain Shah Wali: Gontapalli Village; Manikonda Village; Rayadurg Village (half) known as Maoza Dargah Shareef; Makhta and Arazi Inam Shekhpet village (Survey Nos. 320, 324 acres, 3 guntas); Arazi Inam (Khankash in Qila Mohammadnagar, 3 acres, Rs 10). An application was filed by Ahmedullah Husaini on 12‑2‑1937 alleging that the maash was not mashrut but only zar‑khareed and hence the shareholders were entitled to sharaee shares in the maash. The issues requiring decision were: (1) whether the grant of jagirs and other maash is covered by valid sanads and can be confirmed as mashrutul‑khidmat maash in the name of the present claimant; (2) possession and enjoyment of the claimants over the maash; (3) the relationship of the present claimants and objection petitioners to the original grantee; and (4) the relief to which the respective parties are entitled., Issue No. 1: Jagir villages – Gontapalli village and Manikonda. The petitioner relies on documents and orders in support of his claim for Manikonda as a mashrut jagir conditional on service to the Dargah, including a copy of Ehkam of Nawab Mukhtarul‑Mulk dated 1249, a letter of H.S. No. 75 dated 14th Azur, a letter of Daftar‑e‑Mal 2 of 13th Azur 1320 Fasli verifying the first document, and an Ehkam of Nawab Mukhtarul‑Mulk dated 16th Rabiul‑Awal 1275 H regarding Gontapalli. The inam enquiry of this village was conducted in Diwani and after completion of proceedings an Inam Statement was prepared by the First Taluqdar on 19th Amardad 1320 Fasli for sanction of higher authorities. However, due to a controversy between Diwani and S.K. on the question of jurisdiction, no final decision was recorded on the statement., In the enquiry in Diwani Atiyat Courts, the village Manikonda was recommended to be confirmed as a mashrutul‑khidmat jagir for services to the Dargah in the name of the Sajjada of the time, Syed Akbar Husaini. Since the question of confirmation is now before the High Court, it is necessary to examine the evidence and record to arrive at an independent decision on the nature of the maash, namely whether it was granted as a mashrut maash or was a zar‑khareed property. The Ahkam dated 16th Babul‑Awal 1275 H in respect of the grant of Gontapalli jagir clearly mentions Manikonda Jagir as conditional on Ood‑u‑Gul. Hence there is no strength in the contention that the Jagir Manikonda was self‑acquired property and not an Atiya Shahi grant. Whatever the nature of the maash when it was acquired, it was converted into and confirmed as a conditional Atiya Shahi Grant and treated as such by competent Atiyat authorities of the time. The Kaifiat Jagirdaran mentions this village as a conditional jagir. The Firman of the Nizam dated 14th Azur 1378 Fasli and the Sarfe Khas‑private property of the Sovereign also confirmed this jagir as a conditional jagir for the service of the Dargah. The fact that the jagirs were mortgaged to Hasan Bin Mohsin on 1st Rajab 1296 H with the sanction of Nawab Viqarul‑Umara Ameer‑e‑Kabeer further confirms the conditional nature of the maash.
id_842	2	Otherwise, no permission of the Madarul Maham was necessary if the property was zar‑khareed as alleged. As regards the issue regarding possession over the village of Guntapalli and Manikonda and the lands in Shaikpet and Rayadrug, it is established from records since a long time. The jagir villages and other properties have also been the subject of prolonged litigation between the qabiz and hissedars in the civil and Atiyat Courts, ever since the time of Mukhtar‑ul‑Mulk Bahadur. In recent years the jagirs were under the supervision of a committee appointed by S.K. from 1343 to 1348 Fasli on the death of Syed Akbar Husaini and thereafter it was under Court of Wards until it was released from the Court of Wards only in 1956 through letter No. 545 dated 29‑5‑56. Hence the maash is confirmed as follows: Villages Manikonda and Guntapally with all items of revenue inclusive of excise as conditional on service to Dargah., Issue No.3 – The Shijra or family tree as filed by the parties in the case and given in the summary of the case above is admitted by all parties. Their respective shares in the one‑third Biradari portion Mashrut‑ul‑Khidmat maash viz., jagir village of Guntapally and Manikonda shall be worked out separately and form part of the Munkhab to be issued in this case. The rest of the property shall be considered as madud maash and governed by Sharia shares according to Siham‑e‑Sharai. The claimants Syed Shaha Safirulla Hussaini as Sajjada and the performer of the service to the Dargah shall be entitled to two‑thirds according to Sula‑o‑Sulsan Rule in the Mashrut‑ul‑Khidmat jagirs and his sharia share in the other Maqta and Inam lands, subject to the Abolition of Jagirs and Commutation Regulation 1358 Fasli and the Abolition of Inams Act., The above order had a reference to an order passed by the Chief Minister, notified on 29‑5‑1956. The said order reads thus: No. 545 dated 29‑5‑56. The estate of the late Syed Akbar Husaini was taken under supervision of the Sarf Khas Court of Wards in 1349 Fasli. The sources of this estate were as follows: Manikonda village situated in Hyderabad; Darghah Sharif village, west Taluk; Inam lands at Shaikpet and at Mohammed Nagar fort; Patta lands at the village of Bidar Taluk; Patta lands at the village of Kalab Gore Taluk; Maqta (Raidurg village), Hyderabad West Taluk. The villages No.1 and 2 have been handed over to the Government due to the abolition of jagirs., As commutation of the said jagirs, the Jagir Administration Office was sending amounts to the extent of the share of the dependents of the estate to this office and the rest to the Muslim Waqf Board, towards the service expenses of Darghah known as Hussain Shah Wali. There are several dependents in this estate. Inam and succession enquiry is pending in the Atiyat Court. The heirs of the deceased Sajjada Syed Akbar Hussaini are as follows: Syed Safiullah Hussaini (son); Syed Nademullah Hussaini (son); Fatima Funna Begum (mother of No.2); Fatima Bi (mother of No.1); Mahboob Sahed Bi (daughter of No.2). No.2 and No.3 have migrated to Pakistan. Apart from the above persons, the other dependents were paid their Guzara from the income of the estate., The properties were meant for the service of the Darghah Hussain Shah Wali and the maintenance of the late Sajjada’s family and the other dependents. The affairs of the Darghah are being managed by the Muslim Waqf Board. Until the Inam and succession enquiry case is decided finally by the Atiyat Court, it cannot be said whether the Inam lands also come under the purview of service Inam or not. The patta lands can be deemed as personal properties of the late Sajjada, which can devolve on his sons and widows. Syed Safiullah Hussaini has passed the age of majority and he is now 23 years old. He can manage the personal properties and approach the Atiyat Court to get the Inam and succession case decided., In view of the above reasons, the estate and person of Ward No.1 are released from the Court of Wards supervision. Patta lands are re‑leased in favour of Syed Safiullah Hussaini and the maintenance of his mother, niece and others will be a charge on him. The cash balances of the estate will be kept in deposit with this office pending final decision of the Atiyat Court in the Inam and succession case and pending final settlement of accounts. As such the estate is released from the Court of Wards supervision from the date of issue of this notification., The order of Nazim Atiyat was given effect to when a Muntakhab was issued as a result of succession inquiry held under the Atiyat Enquiries Act. The maash in respect of villages Manikonda and Guntapalli was characterized as a conditional grant to the Dargah whereas Mukhta land situated in village Raidurg and Inam land situated in Shaikpet were described as Madad Mash. The final order mentioned in Column 8 reads thus: In view of the proof, documents of grant, reports and oral evidence produced by the claimants and in view of the entries of the office of Central Records, Mash (Grant) under this claim as mentioned in Column No.6 of this Muntakhab, the villages of Jagir Manikonda and Guntapalli are hereby declared as crown grant, with all items of income including excise, as conditional service grant of Dargah Hazrath Hussain Shah Vali, and restored with the practice of Suls‑e‑Sulsaan (one‑third each). Syed Safiullah Hussaini as Sajjada service render of the Dargah shall get two‑thirds and in the balance one‑third the persons of the Biradari mentioned in Column 4 shall get their shares as per Sharia. The lands of Maqta and Inam situated at Shaikpet, Taluka Mohammed Nagar and Raidurg (properly known as Dargah Shareef) are proved to be self‑acquired and in view of long possession and enjoyment are hereby restored as Madad Mash according to their Sharai shares in favour of the persons mentioned in Column 4. Conditional service grant shall be governed under the orders of inclusion of Jagirs and Madad Mash shall be governed under the orders of abolition of Inams. Therefore steps shall be taken for immediate execution., The Nazim Atiyat dismissed the review by an order dated 24‑09‑1958. An appeal was thereafter filed before the Board of Revenue against the said order in review, which was dismissed on 14‑11‑1958 as not maintainable. Some of the persons aggrieved against the order passed in review filed Writ Petition No. 666 of 1959 under Article 226 of the Constitution before the High Court of Judicature at Hyderabad. The High Court returned the following finding: As regards the character of the lands, so far as the jagir villages of Guntapalli and Manikonda are concerned, I have no doubt that they were rightly held to be villages granted as conditional grants in favour of the Dargah and I am unable to discover any error in respect of that finding. Regarding other properties in Raidurg, Shaikpet and Qul‑Mohammed Nagar, the Nazim Atiyat has held that they are zar‑khareed Maqta lands constituting Madad Mash., A Survey Commissioner was appointed to conduct an inquiry in respect of wakfs in the State of Hyderabad in terms of Section 4 of the 1954 Act sometime in the year 1961. The Survey Commissioner submitted his reports bearing serial numbers 259‑263 on or about 17‑12‑1970 / 28‑1‑1971. The report at serial number 262 had a note in the remarks column which reads: The Dargah is looked after by the Mutawalli. In the past the Jagirs of Manikonda, Dargah Hussain Shah Wali and Guntapalli were given for the functioning of the Dargah and annual Urs. The particulars of the compensation received used by the Mutawalli are not known., On the basis of such survey reports, a notification was published on 9‑2‑1989 in the Andhra Pradesh Gazette declaring 3 506 sq yds (i.e., 3 165 sq yds) pertaining to Dargah Hazrath Hussain Shah Wali; 1 222 sq yds pertaining to Khanqah with Mosque and well area and house on the north side of Khanqah area measuring 1 069 sq yds as wakf land. The notification mentioned Syed Safiullah Hussain as the Mutawalli of the Wakf. The property in question appears at serial numbers 3057, 3058 and 3059. The description reads: Hyderabad West Taluk, Dargah Hussain Shah Wali (Village); Dargah Hazrath Jussain Shah Wali Khanqa Mosque and well; House on the north side of Khanqah area; 3 165 sq yds; Mutawalli – Syed Safiullah Hussaini., A perusal of the documents filed by the Wakf Board before this Court shows that on 30‑1‑2005 Syed Safiullah Hussaini, the Mutawalli, wrote a communication to the Chief Executive Officer of the Wakf Board to constitute a Managing Committee to protect the Wakf property and the service Inam land to an extent of 1 654 acres situated in Manikonda Jagir Village as it had not been notified in the Andhra Pradesh Gazette. The letter states that the Dargah Hazrat Hussain‑Shah Vali is situated at Hussain Shah Vali Village, Rajendranagar Mandal and that a Muntakhab issued from the Nazim‑Atiyat of Andhra Pradesh in file No. 2/56 Atiyat in the year 1344 Fasli shows service Inam lands of 1 654 acres in Manikonda Jagir Village, but it has not been notified in the Gazette. Several shareholders are to benefit from the income of the Dargah under the rule of Sulse‑Sulsan as mentioned in the Muntakhab. The Mutawalli, now over 80 years old, states that he is unable to protect the service Inam lands due to interference and lack of income., A notification was issued by the Minority Welfare Department, Government of Andhra Pradesh on 3‑3‑2001 constituting a Second Survey Commissioner, inter alia on the ground that the first survey was conducted about 40 years back. The notification was issued under Section 4(6) of the 1995 Act. Though the survey was not complete, the Wakf Board sought a copy of the second survey report vide communication dated 2‑9‑2005, inter alia on the ground that an area of 1 654 acres and 32 guntas was held to be a service Inam land in the village Manikonda. Reference was made to the order of Nazim‑Atiyat of 31‑5‑1957 that village Manikonda and Guntupalli with all items of revenue inclusive of excise were conditional grants for service to the Dargah., The second survey report was sent to the Wakf Board on 30‑9‑2005. The office noting which led to the issuance of an Errata notification reads: The Surveyor of the Wakf Board collected copies of old pahani for the year 1951 and khasra‑pahani for the year 1954‑55 in respect of the land relating to Dargah Hussain Shah Vali situated in Manikonda and submitted his report along with copies of said revenue record. It is evident from the entries of revenue record that all the survey numbers are shown as Government land. A detailed letter was sent to the Government on 23‑5‑2005 marking copy to the Collector, R.R. District for necessary action. No response was received. The Senior Commissioner of Wakf was requested to send a copy of his report of the second survey for further action., The Errata notification dated 6‑4‑2006 was challenged by the State along with the Corporation whilst other writ petitions were also filed disputing the notification. In the writ petition it was pleaded that Manikonda is a jagir village and that pursuant to the Abolition Regulations the village vested in the State Government under Section 6 of the Regulation. As per Government Order No. 1 dated 03‑10‑1949, all jagir villages were taken over by the Diwani (Government) by the end of September 1949. Thus there was no wakf property before the enactment of the 1954 Act. The Errata notification created a cloud on the title and interest of the State over the lands at Manikonda village. It was pointed out that the notification was issued without following the mandatory provisions of the Act and that the second survey report was tampered, with overwriting and forged signatures of the Mandal Revenue Officer and Mandal Revenue Inspector., Reference was made to the order passed by Nazim‑Atiyat, asserting that Manikonda was a jagir village originally granted to Safirullah Hussaini. He had mortgaged the land to Hussain Bin Muqaddam Jung on 1 Rajab 1295 H (20‑6‑1879). After the death of both, Akbar Hussain, son of Safirullah Hussaini, applied to the Sovereign for re‑grant which was allowed on 1 Ramzan 1333 A.H. (13‑07‑1915). The Farman of the Nizam stated that the properties (Jagirs) of Dargah Shareef of Hazrath Hussain Shah Wali, which are mortgaged with the factory of Hasan Bin Mohsin, may be released as per the request of the Sajjada of the Dargah, subject to repayment and regular payment of shares to other shareholders for maintenance., Akbar Hussain died on 1 Bahman 1343 Fasli (4‑12‑1934). His two sons, Syed Nadeemullah and Safirullah Hussaini, were minors. Therefore, the management of the estate was taken under the supervision of the Court of Wards in 1349 Fasli (1940). Syed Nadeemullah later migrated to Pakistan. An order was issued in favour of the legal heirs of Safirullah Hussaini by the Nazim Atiyat after detailed inquiry., Since the jagir of Manikonda village was abolished, the commutation amount under the Commutation Regulation was paid to the legal heirs vide Muntakhab order No. 98 of 1958. The order of the Nazim Atiyat clarifies that Manikonda jagir and Guntapalli jagir were subject to Jagir Abolition and other properties were subject to Inam Abolition. It was pointed out that grant of jagir as Mashrut‑ul‑Khidmat was specifically excluded from the purview of the Endowment Regulations. The Sovereign continued to possess the land as title holder but only the usufruct could be used by the Mutawalli. It was pleaded that the grant of such jagir stood abolished under Section 16 of the Abolition Regulation which came into force on 15‑8‑1949, therefore Mashrut‑ul‑Khidmat as part of wakf would not apply to the lands in question., It was also pleaded that the order of Nazim Atiyat was passed under the Atiyat Enquiries Act which dealt only with claims of succession relating to the commutation sums in respect of abolished jagirs and inams. Thus the property did not retain any characteristics of Mashrut‑ul‑Khidmat post abolition and Nazim Atiyat had no jurisdiction to decide the title to this land., In a counter‑affidavit filed by the Wakf Board, it was averred that the Errata notification concerns property attached to the wakf institution or Dargah which was granted by the Sovereign and confirmed by the Chief Minister relying upon an order passed by Nazim Atiyat Court. The First Survey Commissioner report indicated that Manikonda and Guntapalli jagir villages were allotted to the Dargah for rendering services. Therefore the Errata notification is not a new notification as the requisite details were to be provided in the original notification. It was pointed out that Manikonda was granted to Hazrath Shaik Bade Saheb and was in the list of exempted grants. Hence Section 6 of the Abolition Regulation has no application to Manikonda village., The order of the Sovereign dated 1 Ramzan 1333 A.H. (13‑07‑1915) was said to be misconceived as the grant was given to Akbar Hussain subject to his doing service to the Dargah. A grant in the name of an individual doing service to a wakf institution cannot be treated as a grant in the name of an individual; it is the property of the Dargah and falls within the definition of wakf. The Endowment Regulations exclude Mashrut‑ul‑Khidmat as an endowment or wakf. It is incorrect to interpret that the grant of jagir as Mashrut‑ul‑Khidmat was not treated as wakf, as the Hyderabad Religious Endowment Regulations of 1349 Fasli expressly exclude such grants., It was also averred that the concept of Mashrut‑ul‑Khidmat has existed even before the 1954 Act as such grant is recognized by Muslim law as pious, religious and charitable and thus acquired the character of wakf before the codification of wakf law., It was submitted that by the Abolition Regulation, jagirs were not abolished but only jagirdars were. The revenue‑collecting roles of jagirdars were taken over by the Jagir Administrators. When a jagir is granted as Mashrut‑ul‑Khidmat in respect of a wakf institution, it is a permanent dedication and the grantor ceases to have any title or ownership of the property. The object of the grantee is to offer Oodh‑O‑Gul, i.e., a religious observance. The property therefore retains the characteristics of Mashrut‑ul‑Khidmat post abolition of the jagir., According to the list of dates and factual background submitted by the Telangana Wakf Board, the official revenue record of 1913 shows the land of Manikonda as Government land. It has also come on record that the land in Manikonda village was transferred to the Corporation. No objections were filed against the Government memo as the land was wrongly described as Government land. The Corporation issued an advertisement on 22‑9‑2004 inviting bids of private developers for development of IT Parks and certain private parties submitted their bids. Before issuing allotment letters, a public notice was issued by the State Government on 27‑7‑2005 inviting objections to the proposed allotments. No objections were filed, and the land was allotted on 17‑8‑2005 to various private allottees. Some appellants such as Emaar Hills Township Ltd. claim the land was allotted to them in 1999 and construction was raised thereafter., In the counter affidavit filed by the Wakf Board in Writ Petition No. 4515 of 2008, it was submitted that the royal grant disclosed from the Muntakhab was for rendering service to the Dargah even though the name of the grantee was mentioned. When the grant is for rendering service, even after the death of the grantee, the property continues in the name of the Dargah., The High Court, by a common order, decided three writ petitions filed in public interest to challenge the alienations made by the State or the Corporation. Writ Petition Nos.
id_842	3	6148 of 2008 and 28112 of 2007 were filed on behalf of alleged pattadars whereas Writ Petition No. 4515 of 2008 was filed by an allottee of land from the Corporation. The High Court examined the three following questions: (i) What is the effect of Hyderabad (Abolition of Jagirs) Regulations, 1358F and the Hyderabad Jagir (Commutation) Regulations, 1359F and whether the lands vested in the State Government after abolition of jagirs? (ii) Whether the errata notification dated 06.04.2006 is ultra vires the provisions of the Wakf Act, 1995? (iii) Whether the writ petitions challenging the errata notifications are maintainable and whether they are barred in view of the effective and efficacious alternative remedy available under the Wakf Act, 1995? , The High Court, inter alia, held that a wakf is presumed by user and whatever properties are treated as wakf cannot be reversed because it always remains a wakf. The High Court culled down the following principles in respect of wakf property. , Mohamedan law of wakf owes its origin to a rule laid down by the Prophet and means tying up of property in the ownership of God Almighty and the devotion of the profits for the benefit of human beings. When a founder dedicates the property for a wakf, the ownership of the founder is completely extinguished. When it is declared that a particular property is wakf, or any such expression is used implying wakf, the right of the person is extinguished and the ownership is transferred to the Almighty. The manager of wakf is the mutawalli, who is the administrator, governor, superintendent or curator of the wakf property but has no right in the property belonging to the wakf. The dedication need not specifically be in favour of a place of worship, khankah, dargah, cemetery etc.; it is enough if the dedication is made for a purpose recognized by Muslim law as pious, charitable or religious. Service inam granted to individuals burdened with service for purposes which are pious, religious or charitable answers the description of all the ingredients of wakf. Even if the grant of the land is for rendering service to wakf, the construction of a mosque or khankah on the land itself is sufficient proof of dedication to wakf. When the property is held to be wakf, it always retains its character as a wakf and the grant of patta to service inamdars and persons in possession does not change its character. In a case where the inam is service inam for rendering service in connection with a pious, religious and charitable purpose, the holder of the inam burdened with service does not acquire title to that property. If the land is resumed from such inamdar for non‑performance of service and re‑granted to another person, it merely means that the wakf is entrusted to another individual to perform service. , In respect of the post‑abolition situation, the Court held that there are special provisions in the Abolition Regulation, Rules made thereunder and Jagir Commutation Regulations concerning the grants made to support religious and charitable institutions. As per the proviso (b) to Section 16 of the Jagir Regulations, the distribution of the net income shall be effected as far as possible as per the wishes of the grantor and in consonance with custom and usage. Rule 6 made under the Regulations contains the method of distribution of net income as contemplated under the proviso (b) to Section 16. The principle adumbrated therein is suls‑e‑sulsan: one half of the income shall be spent for fulfillment of the object and the remaining half would be distributed equally between the jagirdar, mutawalli or other persons entitled to perform the duties and hissedars (legal heirs of the inamdar). Regulation 10(2) of the Commutation Regulations obliges the Government to pay ninety per cent of the gross basic sum of commutation to the institution every year commencing from 1 April 1950 for the service of the institution. Prima facie, none of these provisions help the Advocate General in sustaining the argument that on payment of commutation, Mashrut‑ul‑khidmat stands reversed and vests in the sovereign/Government. Consequently, the presumption that title to the tract of land in the territory always vests in the sovereign in the absence of any claim by others (reiterated in R. Hanumaiah v. State of Karnataka, (2010) 5 SCC 203) is not attracted. , The High Court, relying upon the Muntakhab issued by the Government of Nizam in 1249 Fasli, the notification from Nazim Court of Wards dated 29 March 1956, the order dated 31 May 1957 of the Nazim Atiyat and consequential Muntakhab dated 26 November 1958, the provisional commutation award dated 30 September 1952 and the order of the High Court dated 14 December 1961, held that the State would like this Court to draw an inference from these documents that the grant was Mashrut‑ut‑khidmat and, in the absence of a proven dedication, the land vested in the Government after abolition of jagirs. The Wakf Board of Dargah also relied on these documents as well as three comparatively recent documents – a Government memorandum dated 25 January 2007 and two letters dated 4 May 2007 and 12 June 2007 – to press the submission that from the date of grant the Manikonda land was wakf and, even after abolition of jagirs and payment of commutation amount to legal heirs and hissedars, it retained the character of being a wakf. In our considered opinion, all these documents need to be clarified and explained by whichever party relies on them. Unless a deeper probe into the contemporaneous circumstances and contextual events of the period when the ancient documents came into existence (may be by oral evidence or other documents) is undertaken, it is not possible to countenance the Advocate General’s submission that the subject land is not wakf and was taken over by the Government on abolition of jagirs. , The High Court found it very doubtful, while referring to the Abolition Regulation, whether the Government can claim any vested right in such inam. The Court was not inclined to go deeper into these issues. The Jagir Regulations, Commutation Regulations and Inams Abolition Act treated all the jagirs and inams held for the purpose of support of charitable and religious purposes, including wakfs, differently. Those inams, in law, if proved, are to be held as endowments to charitable and religious institutions like a temple or wakf, and it is very doubtful whether the Government can claim any vested right in such inams. The Court considered only the submissions with reference to the plain meaning of the provisions. There are also seriously contested questions as to the nature of the Nizam grant to the Dargah and the right claimed by the legal heirs of the grantee. Both parties have various documents in their armoury, some of which are produced before this Court, and all of them call for interpretation and inference subject to further clarifications. , In respect of the errata notification, the High Court found that Sections 4 and 5 of the Wakf Act, 1995 form one group, Sections 6, 7 and 83 are adjudicatory provisions applicable in the event of a dispute regarding wakfs, whereas Sections 40 and 41 read with clause 32(2) of the Act form another group of provisions. , An analysis of the above provisions shows that the Wakf Board can itself collect information regarding any wakf property which it has reason to believe to be wakf property. This power of the Board to collect information on its own is not subordinate to the power of the State Government under Section 4(1) to appoint Survey Commissioners. Sections 4 to 8 appear in Chapter II, which deals with survey of wakfs, and Section 4 only speaks of Preliminary Survey of wakfs. Chapter V (Sections 36 to 43) deals with the registration of wakfs. The law requires that every wakf, whether created before or after commencement of the Wakf Act, shall be registered at the office of the Wakf Board. Even if a wakf is not surveyed or mentioned in the report submitted by the Survey Commissioner under Section 4(3), there is still an obligation for registration of every wakf, and as per Section 43, all wakfs registered prior to the Wakf Act shall be deemed to have been registered thereunder. In this context, Section 40 assumes significance. Sub‑section (3) thereof contains a non‑abatement clause that overrides other provisions in the Wakf Act. Notwithstanding anything contained in the other provisions of the Wakf Act, under Section 40(3) the Wakf Board may hold an enquiry and, if it is satisfied that a property is a wakf property, can issue notice to the trust or society and then register under Section 36. , A reading of Sections 6, 7 and 83 of the 1995 Act leaves no doubt that the question whether a particular property specified as wakf property in the list of wakfs is a wakf property or not has to be adjudicated by the Wakf Tribunal in a suit instituted for that purpose. It was also held that Section 40 is wide enough to confer powers on the Wakf Board to issue the errata notification and it is neither necessary for the Government to appoint a second Survey Commissioner nor for him to submit a report. , With respect to the third issue – whether the writ petitions are barred – the High Court held that the Act requires all disputes, questions or any work or other matters whatsoever relating to a wakf or wakf property to be adjudicated only by the Wakf Tribunal. After considering various judgments, the High Court held that, in view of the binding precedents of the Supreme Court of India on the bar of writ petitions in relation to disputes concerning wakf under Sections 6, 7, 83 and 85, and also the power of the Wakf Board to cause registration of wakf or to amend registration of wakfs under Section 41, this Court cannot entertain writ petitions filed by the State and others to whom either the Government or the Andhra Pradesh Industrial Infrastructure Corporation allotted portions of Manikonda lands. The Court did not refer to the numerous other judgments cited by the Wakf Board on the question of maintainability of the writ petition. The submission of the Advocate General that the issue raised in these writ petitions does not involve any disputed question of fact or is beyond the jurisdiction of the Wakf Tribunal was not found persuasive. , Mr V. Giri, learned Senior Counsel appearing for the State, raised various arguments to challenge the order of the High Court. He contended that no dispute was ever raised regarding alleged exclusion of properties belonging to the Dargah in the first notification even though the first survey report was sent to the Wakf Board. The errata notification was published after a long delay of seventeen years at the instance of the Wakf Board. The impugned errata notification was issued without following any procedure prescribed under the Act on the ground that certain lands were not notified in the notification dated 09 February 1989. Even if the notification excluded certain land claimed to be wakf land, the Wakf Board could exercise suo motu powers under Section 40 of the 1995 Act, but such inquiry was required to be conducted after compliance with the principles of natural justice, i.e., after granting an opportunity to the affected parties. Since the land was shown as land of the State since 1912‑13, the State was the affected party entitled to be heard before declaring the land in question to be a wakf property. No objections were filed against the notice issued by the State on 27 July 2005 within fifteen days against the proposed allotment of Government land to the Corporation; consequently, the Corporation further allotted the land to various private groups. Therefore, the actions of the Wakf Board in suddenly claiming rights over the property spread over a large area of land are not bona‑fide. Reference was made to the judgment of this Court reported as M.P. Wakf Board v. Subhan Shah (Dead) By Lrs. and Others. , Mr Giri further averred that the survey report by the second Survey Commissioner, which formed the basis of the notification dated 03 March 2001, was never submitted to the State Government as required under Section 5(1) of the 1995 Act. Since the statutory procedure was not complied with, the Wakf Board could not cause the notification to be published on the basis of a report that was never submitted to the State Government. The survey report had material alterations visible to the naked eye. Although the report is the subject of a trial to determine who caused the alterations, it could not on its face form the basis of the notification. The Board’s stand that the errata notification is not based upon the second survey report is untenable, as the proceedings produced by the Board show that both the report and the order of the Nazim Atiyat were the two factors considered which led to the impugned notification. , It was argued that Manikonda village was a jagir village. The jagirs were granted by the Sovereign for the lifetime of the grantee and were not heritable or alienable. After the death of the jagirdar, it was at the discretion of the Sovereign to re‑grant it. Reference was made to the judgment reported as Ahmad‑Un‑Nissa Begum and Another v. The State through the Chief Minister and Others. , The Abolition Regulation abolished the jagirdars and vested the jagir land with the State in terms of Regulation 4 of the Abolition Regulation. The jagirdars were to receive only a commutation value in lieu of cash payments after the abolition of the jagirs. Regulation 16 abolishes the jagirs granted to a temple, mosque or any institution established for a religious or public purpose. It was argued that if the jagir granted to a mosque stands abolished, the land which is a conditional grant for the service of the religious institution shall also stand abolished as a necessary consequence of abolition of jagirs. The order of the Chief Minister dated 29 May 1956 also shows that Manikonda village was handed over to the Government due to abolition of jagirs. , A perusal of the order of the Nazim Atiyat Court shows that the grantee is holding a conditional grant for the service of the Dargah, and that such grant is subject to the Abolition Regulation and Inams Abolition Act. Therefore, even if the land of Manikonda village was given as a conditional grant, it stood abolished by virtue of the Abolition Regulation. The Muntakhab shows that Syed Safiullah Hussaini was given two‑thirds of the conditional grant in view of the practice of suls‑e‑sulsan (one‑third each to the other family members). Such grant stood abolished with the enactment of the Commutation Regulation consequent to the Abolition Regulation. In terms of the order of Nazim Atiyat, the heirs of Syed Safiullah Hussaini were paid a commutation amount vide award dated 05 June 1959. Reference was made to the judgment of this Court reported as Mohd. Habbibuddin Khan v. Jagir Administrator, Government of Andhra Pradesh and Others to contend that the Abolition and Commutation Regulations abolished succession claims in respect of atiyat grants under Section 2 of the said Act and that the power and jurisdiction of the Atiyat Court was confined to inquiries as to rights, title or interest in atiyat grants and to holding inquiry into succession claims. Reliance was also placed upon the Division Bench judgment of the High Court reported as K.S.B. Ali v. State of A.P. and Others. , The petitioner had withdrawn the writ petition with permission to seek appropriate remedy in the Special Leave Petition filed before the Supreme Court of India against the judgment of the High Court. The petitioner filed another writ petition before the High Court, which was dismissed. In an appeal against the order passed in the second writ petition, this Court, in a judgment reported as K.S.B. Ali v. State of A.P. and Others, dismissed the claim of the appellant based upon an order passed by the Atiyat Court. , It was submitted that the argument that once a wakf always a wakf would not be applicable on account of statutory abolition of jagirdars and vesting of jagir land with the State, including lands dedicated to temples, mosques and other religious institutions. If the land given to the religious institutions stands abrogated, the conditional grant of service to such religious institutions cannot survive as it is not larger than the jagirdari rights given to religious institutions. Any right in the wakf would not override the right of the Sovereign, who is the repository of all lands within his estate. Hence, the Abolition and Commutation Regulations would supersede any rights in the land, including that of a conditional grant for service to a religious institution. , Mr Giri further argued that, under the 1995 Act, the jurisdiction of the Wakf Tribunal could be invoked only by a person interested therein, apart from the Board or mutawalli of a wakf. Although the phrase “any person interested therein” has been substituted by “any person aggrieved” by the 2013 amendment, on the date of filing of the writ petition the State could not have invoked the jurisdiction of the Wakf Tribunal. Referring to the judgment of this Court in Rashid Wali Beg v. Farid Pindari & Ors., it was argued that the question involved in the appeal was not the validity of the notification or lack of jurisdiction or procedural impropriety, which has arisen for consideration in the present appeals. , Mr C. S. Vaidyanathan, learned Senior Counsel appearing for the Corporation, submitted that the writ jurisdiction of the High Court cannot be excluded merely because alternative statutory remedies exist. The right to invoke writ jurisdiction is untrammeled by any external restrictions. Reference was made to Committee of Management and Another v. Vice Chancellor and Addl. Secy. to the Government of India v. Alka Subhash Gadia (Smt). Further references were made to K.K. Kochunni v. State of Madras, Whirlpool Corporation v. Registrar of Trademarks and Balkrishna Ram v. Union of India. , It was argued that even if an alternative remedy is available, the High Court still has jurisdiction in the following matters: (i) where the impugned action is in breach of natural justice, (ii) where the challenge is to an action which is patently erroneous and ex facie without jurisdiction, (iii) where the vires of legislation is challenged, or (iv) where the writ petition is filed for enforcement of fundamental rights protected by Part III of the Constitution. It was contended that there has been a violation of principles of natural justice as the State has been recorded as owner of the disputed land in the revenue records since 1912‑13 and that the Wakf Board failed to file objections before the land was transferred in favour of the Corporation. , The Wakf Board exercises quasi‑judicial jurisdiction under Section 40(1) of the 1995 Act. This is evident from two facts: an inquiry is required to be conducted and the decision taken after the inquiry can be challenged before the Wakf Tribunal. The legal principle as to when an act of a statutory authority is quasi‑judicial is that (i) a statutory authority is empowered under a statute to do an act, (ii) which would prejudicially affect the subject, (iii) there is no lis between two contending parties and the contest is between the authority and the subject, and (iv) the statutory authority is required to act judicially under the statute and the decision is quasi‑judicial. Reference was made to Kranti Associates (P) Ltd. v. Masood Ahmed Khan. An inquiry could be conducted only after hearing the affected parties. Since the decision is subject to the decision of the Wakf Tribunal, a reasoned order is required to be recorded by the Wakf Board which could be tested before the Tribunal. The jurisdiction of the Wakf Tribunal is akin to the remedy of appeal against the order passed by the Board. , The errata notification is alleged to have been issued without jurisdiction as no such notification could be issued summarily without conducting any inquiry, only on the basis that Manikonda village is a conditional grant for the service of the Dargah. It was further contended that an errata notification could be issued only in limited circumstances where there are clerical or arithmetical mistakes arising from accidental slip or omission, having parity with Section 152 of the Code of Civil Procedure. New rights could not be created over a large chunk of land under the guise of an errata notification. The errata notification is, in substance, a fresh notification without following the procedures prescribed under the 1995 Act. If the Act provides a particular method of doing an act, the act has to be performed in the same manner and all other alternatives stand excluded. It was also argued that the power under Section 32(2)(n) was only a step‑in aid to a decision to be taken under Section 40 of the Act. Section 32(2)(n) empowers the Wakf Board to investigate and determine the nature and extent of wakf. The Board is thus competent to investigate and determine the nature of wakf as a step‑in aid for its quasi‑judicial decision in terms of Section 40 of the Act. The determination in Section 32(2)(n) has to be read along with Section 40 of the Act. Reference was made to the judgment of this Court reported as Indian National Congress (1) v. Institute of Social Welfare. , Mr Ranjit Kumar, learned Senior Advocate appearing for M/s Lanco Hills Technology Park Pvt. Ltd., submitted that irrespective of the decision on the validity of the errata notification and the question whether the subject land is wakf property, the rights of the appellant as well as thousands of persons in whose favour rights and interests in the properties have been created are to be protected by the appellant State and/or the Corporation in view of the order passed by this Court on 8 May 2012 and the submissions of the Wakf Board and the Dargah. Further reference was made to affidavits filed by the Chief Executive Officer of the Wakf Board on 7 November 2010 and on 14 April 2011 regarding claim of monetary compensation. , It was argued that no inquiry as envisaged under Section 40 of the 1995 Act was made, no notice was issued and no decision was taken by the Board. There was no document or assertion that the Board invoked Section 40 or took a decision that 1 654 acres of land was wakf property. Reliance was placed upon Subhan Shah considering pari‑materia Section 27 of the 1954 Act with Section 40 of the 1995 Act, that the Board could have initiated proceedings under Section 27 of the 1954 Act, but in the present case no suo motu proceedings were initiated by the Board and no notice in this behalf was issued to any interested parties. , It was also contended that Section 40 does not envisage publication of a notification in the Official Gazette; the publication of a notification is only contemplated under Section 5 of the 1995 Act. Therefore, the argument that the Board had exercised powers under Section 40 is absolutely misconceived. It was further contended that the Board was not categorical as to whether the decision had been taken under Section 40 or under Sections 4 and 5 of the 1995 Act. In fact, the Board tried to justify adherence to the procedure prescribed under Sections 4 and 5 of the 1995 Act by stating that the second Survey Commissioner was appointed by the State Government, making it meaningless to say that no notice was issued by the Survey Commissioner to the State Government or to the District Collector before including the land as lands of the Dargah. Consequently, the question of issuing notice to the Government did not arise. , It was argued that the bar of jurisdiction of the Civil Court is not absolute and is confined only to matters which are required to be decided by the Wakf Tribunal under the 1995 Act. The finding of the High Court is contrary to the judgments in Ramesh Gobindram and Anis Fatima Begum. It was averred that since the errata notification was based upon fraud and forgery, it is in breach of Sections 4 and 5 of the 1995 Act, violative of principles of natural justice and without jurisdiction, and therefore null and void. , The High Court quoted the principles laid down by this Court that a writ would lie even if there is an alternative efficacious remedy, provided the impugned action is in breach of natural justice or is patently erroneous and ex facie without jurisdiction. However, that principle was not applied in the writ petition before the High Court. A challenge to the validity and legality of a notification issued by the Wakf Board is admittedly not a matter which the Wakf Tribunal is required to determine under the 1995 Act. Reliance was placed upon Harbans Lal Sahnia v. Indian Oil Corp., Radha Krishan Industries v. State of Himachal Pradesh and Bal Krishna v. Union of India & Anr. , It was further contended that Manikonda village land was jagir land and, subsequent to the commencement of the Abolition Regulation, the conditional grants made in favour of temples, mosques or any other institution established for a religious and pious purpose, which includes the Dargah, stood abolished. The order of the Nazim Atiyat itself stated that the Mashrut‑ul‑Khidmat grant would be subject to the provisions of the Abolition Regulation. As per the order passed by the Nazim Atiyat, the commutation amount was paid to the heirs of the jagirdar as per the Commutation Award dated 5 June 1959. Therefore, the order of the High Court is not sustainable and the appeals deserve to be allowed. , In respect of Maulana Azad National Urdu University, it was submitted that 200 acres of land out of the 1 654 acres were allotted to the University vide order dated 18 March 1998. The appellant is a Central University established by an Act of Parliament. Possession of the land was handed over to the University on 23 July 1998. The University offers 71 programmes, 19 departments at undergraduate, graduate, postgraduate and Ph.D. levels and six research/training centres with more than 5 000 students enrolled. Therefore, the allotment made to the appellant suffers from gross delay and laches. , Mr Huzefa A. Ahmadi, learned Senior Counsel appearing for the Wakf Board, contended that the question raised by the appellants whether the subject land is wakf property and whether the property has been wrongly included in the list of wakfs falls within the exclusive jurisdiction of the Wakf Tribunal, relying upon Sections 6, 7, 83, 85 and 88 of the 1995 Act. The intention of the legislature is evident from the scheme of the Act. References were made to the judgments reported as Rajasthan Wakf Board v. Devki Nandan Pathak & Ors.; Haryana Wakf Board v. Mahesh Kumar; Board of Wakf, West Bengal & Anr. v. Anis Fatma Begum & Anr.; Punjab Wakf Board v. Sham Singh Harike; Telangana State Wakf Board & Anr. v. Mohamed Muzafar; and Rashid Wali Beg v. Farid Pindari & Ors. , It was also submitted that whether a particular property is a wakf property cannot be decided in writ jurisdiction, in view of the judgment of this Court in Anis Fatma Begum & Anr. The writ court does not decide the question of title, which is a disputed question of fact. References were made to the judgments reported as Union of India v. T.R. Varma and Union of India & Ors. v. Ghaus Mohammad. Such questions have been exclusively included in the domain of jurisdiction of the Wakf Tribunal under the Act. , On merits, it was argued that the order passed by the Nazim Atiyat on 31 May 1957 recorded the following findings: (i) Manikonda village was in the list of exempted jagirs; (ii) the second taluqdar, in his opinion, had stated that Village Manikonda may be continued in the name of Akbar Hussaini subject to the service of the Dargah.
id_842	4	This opinion was confirmed by the First Taluqdar. Manikonda Village was a Mashrut Atiya Shahi grant for the service of the Dargah. While passing the final order in respect of all the villages, the Village Manikonda and Guntapally were not made subject to Abolition of Inams Act, as was done in respect of the other villages., Subsequently, in a writ petition, the High Court of Andhra Pradesh in its order Supreme Court Cases 179; and 2021 Supreme Court Cases Online Supreme Court 1003 dated 14.12.1961 held that Manikonda and Guntapally Villages were conditional service grants in favour of the Dargah. It was thus argued that once Manikonda village has been held to be Mashrut-ul-Khidmat, i.e., a conditional grant for the service of Dargah, it falls within the definition of a Wakf., Further, the order of the Chief Minister dated May 29, 1956 only releases Manikonda village from the supervision of the Court of Wards and places it with the Government as an interim arrangement until the Atiyat Court decides the matter. The said order notes the fact that the properties in question (which includes Manikonda Village) were meant for service of the Dargah., It was submitted that Mohammedan Law of Wakf owes its origin to a rule laid down by the Prophet and means tying up of property in the ownership of God Almighty and the devotion of the profits for the benefit of human beings. The reference was made to the judgment reported as Nawab Zain Yar Jung (deceased) & Ors. v. Director of Endowments & Anr., wherein it is held that once a founder dedicates a property for wakf, the ownership of the founder is completely extinguished., Thus, once it is declared that a particular property is wakf or any such expression is used implying wakf or the document shows that there is dedication for a pious or charitable or religious purpose, the right of the person dedicating the property is extinguished and the ownership is transferred to the Almighty. A Mutawalli is appointed thereafter as manager of the wakf. Though Mutawalli is the administrator, governor, superintendent or curator of the wakf property, he has no right in the property belonging to the wakf., The dedication of a property as Wakf need not specifically be in favour of a place of worship, khankah, Dargah, cemetery etc. It is enough if the dedication is made for the purpose recognised by Muslim law as pious, charitable or religious. Service inam granted to individuals tasked with service for purposes which are pious, religious or charitable, meets all the necessary ingredients of a wakf. Even if the grant of land is for rendering services to the wakf, that itself is sufficient proof of dedication of such land as wakf., When once the property is held to be wakf, it always retains its character as a wakf and the grant of patta to service inamdars and persons in possession does not in any manner change its character. In case where the inam is for rendering services in connection with a pious, religious and charitable purpose, then the holder of the inam responsible for performing the services does not acquire title to that property. If the land is resumed from such inamdar for non‑performance of service and is re‑granted to another person, it only means that the management of the wakf is entrusted to another individual to perform service., Mr. Ahmadi further relied upon an order of the Andhra Pradesh High Court in R. Doraswamy Reddy v. The Board of Wakf, Andhra Pradesh, Hyderabad represented by its Secretary, holding that a service inam could be Wakf. He also relied upon another judgment reported as Sayyed Ali & Ors. v. Andhra Pradesh Wakf Board, Hyderabad & Ors., where a question arose whether a property originally endowed by the Nizam of Hyderabad for support and the services of a Dargah would lose the character of being a Wakf property once patta was granted in favour of Mokhasadars under the Iman Abolition Act., Thus, it was argued that since the Manikonda lands fulfilled the criteria for creation of a Wakf under Muslim law as a Mashrut Atiya Shahi, and that the village was being used to bear the expenses for the maintenance of the Dargah and for celebration of the annual urs, the dedication was for a purpose recognised by Muslim Law as pious, religious or charitable., It was further submitted that Mashrut-ul-Khidmat has been recognized as a pious, religious and charitable purpose even before the 1954 Act was amended in 1964. The facts of the present case and the order of the Atiyat Court demonstrate that the land in question was used ever since the issuance of the Farman from times immemorial for performance of oodh‑u‑gul and the festival of urs at the Dargah. The service of the Dargah and meeting of the expenses of urs, flowers etc. have been carried on for almost over a century since the issuance of the Farman., It was argued that without prejudice to the above, even without a formal dedication of the property, usage of the property for religious purpose would clothe the same into the nature of Wakf within the meaning of the 1954 and 1995 Acts., The submission of the State Government that no Wakf was created as there was no permanent dedication since title did not pass is ex facie incorrect and misconceived. Firstly, the submission proceeds on the incorrect premise that the grant of jagirs does not vest title. Referring to the Report of the Royal Commission on Jagir Administration and Reforms, prior to the promulgation of the Andhra Pradesh (Telangana Area) (Abolition of Jagirs) Regulation, 1358F, there were several different categories of jagirs, some permanent and some temporary. There was nothing to show that Manikonda jagir was temporary., Hence, this being a disputed question of fact could only be determined by the Wakf Tribunal. Secondly, the terms of the grant and its nature, whether permanent or temporary, could only be deduced upon the interpretation of the original Farman which would have to be summoned from the government archives. Thirdly, it was submitted that without prejudice to what has been stated above, the entire premise that formal title must pass to create a permanent dedication is misconceived. Even in service inams formal title remains with the Government. This Court has interpreted such inams with a condition of service to be Wakfs., Since the permanency of dedication constituting a Wakf exists in relation to the service and the interest in the land, it becomes a Wakf, even if formal title does not pass. In the present case, there is nothing to show that the original Farman which made the dedication for condition of service was not permanent. In fact, the narrative given by the Atiyat Court suggests otherwise., It was also contended that the argument raised by the appellants that since the Atiyat Court did not have jurisdiction to decide the title of the property as it was only empowered to decide the amount of commutation payable, therefore the observation that the Manikonda lands were Mashrut Atiya Shahi grant for the service of the Dargah ought to be ignored. In this regard, it is relevant to mention that the Manikonda lands have not become Wakf property by virtue of the order of the Atiyat Court, but by virtue of the original grant by the Farman. The order of the Atiyat Court merely reiterates that position and makes an observation as to the nature of the property which has never been contested., Further, if the order dated May 31, 1957 is perused, the issue before the Atiyat Court was whether the five villages mentioned in the order were Mashrut or Zar‑Khareed, i.e., conditional service grant for the Dargah or self‑acquired property. It was held that the Manikonda land was a Mashrut Atiya Shahi grant for the service of the Dargah. This finding was affirmed by the High Court of Andhra Pradesh by virtue of its order dated December 14, 1961. The State Government was a party at both stages as it was represented by a government pleader. No objections were raised as to the factual position or to the jurisdiction of the Atiyat Court., In the writ petition filed by the State, it has been admitted that the grant was treated as Mashrut-ul‑Khidmat grant. In such circumstances, the findings having attained finality cannot now be reopened or challenged on the basis of an alleged jurisdictional error. This position is further buttressed by a perusal of Section 13 of the Atiyat Enquiries Act, 1952 where finality is attached to the orders passed by the Atiyat Court., Mr. Ahmadi has further submitted that Manikonda Village was not a jagir within the meaning of the Abolition Regulation as the jagir in terms of Section 2(f) of the Abolition Regulation does not include Mashrut-ul‑Khidmat though it includes several other types of jagirs like paigah, agrahar, umli etc. The Report of the Royal Commission on Jagir Administration and Reforms mentions conditional grants and certain other jagirs which were permanently given to the grantee. The Commission had recommended that jagirs intended for religious service should not be resumed., It was further argued that the vesting of jagirs in the government was not automatic in terms of Regulation No. 5 of the Abolition Regulation but different dates for different jagirs were to be notified. No notification pertaining to Manikonda Village has been brought on record to show that the Government notified an appointed date for vesting of Manikonda Village in the Government. The Commutation Award dated June 5, 1959 does not show any payment made to the Dargah as stipulated under Regulation No. 10 of the Commutation Regulation., It was submitted that the words jagir, inam, etc., have been interchangeably used in the present matter; however, what is important is that the land in question has been recognised as a grant for the service of the Dargah, which is a Wakf and would continue to be a Wakf, despite abolition of jagirs., It is submitted that the second survey could be conducted as twenty years had passed from the date of the first survey and that the Wakf Board had the powers to summon the report concerning Manikonda Village from the Survey Commissioner under Section 105 of the Wakf Act, 1995. It was also submitted that the Wakf Board has the power to issue the Errata notification and Manikonda Village has been correctly included in the list of Wakf properties as the Wakf Board has the power to collect information regarding any property which it has reason to believe was a Wakf property., It was argued that Sections 4 and 5 form one group whereas Section 32 grants power of general superintendence of all Wakfs to the Wakf Board. Section 32(2)(n) specifically enumerates the power of the Wakf Board to investigate and determine the nature and extent of a Wakf property. Such power is unilateral and not adjudicatory, where the Wakf Board is empowered to conduct its own investigation and determine the nature and extent of a Wakf property. Hence, the Board exercises administrative powers under Section 32(2)(n) of the Wakf Act, 1995., Reference was made to the judgment reported as A.P. A. Rasheed v. N.N. Khalid Haji & Anr., of the Kerala High Court. It was argued that the scope of the words investigate and determine under Section 32(2)(n) is an independent discernment by the Wakf Board, without requiring the interested persons to be made a part of the process. Reliance has been placed upon the judgment Attorney General v. Hughes. The Wakf Board has power to decide if a property is a Wakf property or not under Section 40 and the said action of the Wakf Board is subject to the decision of the Wakf Tribunal., Such inquiry is not adjudicatory but contemplates inquiries in the course of examination of the records of a particular Wakf and the dedications of property made to such Wakfs. Sub‑sections (3) and (4) of Section 40 relate to properties which are either registered as a property of any Trust or Society. The Wakf Board is empowered to conduct an inquiry and if it is satisfied that the property is a Wakf property, it will call upon the concerned Trust/Society to show cause as to why such property should not be registered as a Wakf property. Thus, prior notice is necessary to the registering authority in such situation contemplated by sub‑sections (3) and (4) of Section 40 only., Reliance was placed upon a judgment of the Calcutta High Court in the case of Amjad Ali Mirza & Ors. v. Board of Wakfs & Ors. It was argued that the power of the Wakf Board to collect information regarding any property which it has reason to believe to be a Wakf property is not subordinate to the power of the State Government to get a survey conducted under Sections 4 to 6 of the Wakf Act, 1995. In view of the inherent power of the Wakf Board to issue Errata notification, it cannot be rendered nugatory merely because it has not been issued as per the provisions of Sections 4 to 6 of the Wakf Act, 1995. Thus, it was contended that issuance of Errata notification could be traced to Section 32(2)(n) as well as under Section 40(1) of the Wakf Act, 1995., Mr. Ahmadi has relied upon judgments of this Court reported as T.N. Wakf Board v. Hathija Ammal (Deceased) by LRs & Ors., and Madanuri Sri Rama Chandra Murthy v. Syed Jalal, dealing with pari materia provisions contained in Section 27 of the Wakf Act, 1954 to Section 40 of the Wakf Act, 1995. Hence, the Wakf Board derived its power to include such property in the list of Wakfs either under Sections 4 to 6 or Sections 30 or 40 of the Act., Mr. Ahmadi referred to the following material to conclude that Manikonda Village was a Wakf property: (a) The Manikonda village was a service grant for the Dargah. (b) In Sayyed Ali (supra), this Hon’ble Court has held that a grant along with service to Dargah is a Wakf and would remain as a Wakf irrespective of the Abolition Regulations. (c) The order of the Atiyat Court states that the Manikonda village was a Mashrut Atiya Shahi grant for the service of the Dargah, which is also apparent from the Muntakhab issued by the Atiyat Court. (d) Thus, the Manikonda village was a Mashrut-ul‑Khidmat, which fell within the purview of the definition of a Wakf under the 1954 Act and has been specifically included within the definition of Wakf since 1964. (e) The genesis of the fact that Manikonda lands were Wakf lands can be traced to the first survey report, wherein, in the remarks column it has been noted: “The Dargah is looked after by the Mutawalli; in the past the jagirs of Manikonda Dargah Hussain Shah Valli and Gunthapalli were given for the functioning of the Dargah and annual urs. The particulars of the compensation received now by the Mutawalli are not known.”, While issuing the Errata notification, the Wakf Board took notice of the following documents: (i) The Shahi Firman; (ii) The orders of the then Chief Minister, First Taluqdar, Second Taluqdar and other officers; (iii) The order of Nazim-e‑Atiyat dated 31 May 1957 as well as 24 September 1958 (rejecting the review petition); (iv) The order of the Board of Revenue dated 14 November 1959; (v) The order of the High Court in Writ Petition No. 666 of 1959; (vi) The Muntakhab No. 98 issued by the Nazim‑e‑Atiyat on 26 November 1958; (vii) The Report of the First Survey which mentioned in the remarks column that Manikonda and Guntapalli were allotted to the Dargah for rendering services to the institution., It was further argued that the State Government is challenging a notification issued in the State Gazette to contend that there is a dispute between the Revenue Department, which claims that the subject lands are jagir lands, whereas the Minorities Welfare Department is of the view that the subject lands are Wakf properties. Reference was made to a judgment of this Court reported as Chief Conservator of Forests, Government of Andhra Pradesh v. Collector & Ors., to make out a strong case of setting up similar committees by the State Governments to resolve controversies arising between various departments of the State or the State and any of its undertakings. It would be appropriate for the State Governments to set up a committee consisting of the Chief Secretary of the State, the Secretaries of the concerned departments, the Secretary of Law and, where financial commitments are involved, the Secretary of Finance. The decision taken by such committee shall be binding on all the departments., Mr. Ahmadi rebutted the arguments raised by Mr. Giri that the State Government is precluded from invoking the jurisdiction of the Wakf Tribunal as the State Government is a party in the suit filed in 2007. It was stated that the Government could always approach the Tribunal under Section 6 or under Section 83 of the Wakf Act, 1995., Mr. Ahmadi referred to an order passed by this Court on May 8 2012 and July 26 2013 to contend that such orders do not foreclose the right of the Board to recover Wakf lands. However, referring to a judgment of this Court reported as K.B. Ramachandra Raje Urs (Deceased) by Legal Representatives v. State of Karnataka & Ors., Mr. Ahmadi submitted that once it is determined that the possession of the property is contrary to law, the normal relief is to hand over possession of the entire land to the rightful owner but if construction has been carried out on a part of the land, the rightful owner becomes entitled to receive compensation in terms of the market value of the land which has been utilized for construction and is entitled to recover possession of the remaining part of the land which is vacant., It was further pointed out that the Government illegally allotted 1,226 acres and 29 guntas to various parties out of which allottees have utilized 818 acres and 9 guntas. Thus, 428 acres and 3 guntas of land is still lying vacant. The total area which is lying vacant and which belongs to the Wakf thus comes out to be 836 acres and 23 guntas. Hence, a direction has been sought from this Court to direct the Wakf Tribunal to order the appellants in all the matters to hand over possession of the vacant part of the property and to pay compensation to the Wakf Board at the market value for the part of the property utilized in construction., In respect of invocation of writ jurisdiction of this Court, it was contended that the facts of the present case are disputed and contentious. It is well settled that the disputed question of facts cannot be decided in writ jurisdiction especially when the Act gives exclusive jurisdiction to the Wakf Tribunal to decide such questions., Moreover, it was argued that Mashrut-ul‑Khidmat land is specifically excluded from the purview of Endowment Regulations. It has to be treated as endowed in terms of Regulation 447. It was submitted that grant of condition of service to a non‑religious institution is not treated as endowment whereas grant made to religious institution could be considered as endowment. Thus, conditional grant for service of Dargah was an endowment., In the written submissions filed on behalf of the Dargah, it was submitted that the Wakf Tribunal should be allowed to proceed with the suit and that 1,204 acres have been allotted and built upon whilst the rest of the land admeasuring 450 acres is still untouched. The Farman dated 1st Ramzan 1333 A.H. (13 July 1915) wherein the Nizam released the grant in favour of Akbar Hussaini, son of Safiullah Hussaini with the direction that the inam and succession inquiries should be sorted out. The Muntakhab dated 26 November 1958 drawn up after the order of the Atiyat Court mentions that the Village Manikonda is a crown grant with items of income including excise, as conditional service grant of Dargah. Columns 6 and 7 show that a total extent of 1,898 acres and 18 guntas in Manikonda Village was given as conditional service grant to the Dargah. As per the practice of the Suls‑e‑Sulsan, Saifullah Hussaini as Sajjada was to get two‑thirds and the balance one‑third was to be given to the family. Such fact was an input for the decision of the Wakf Board under Section 40 of the Wakf Act, 1995., The Wakf Board could have arrived at the decision independently. Since no question arose about the property being Wakf, no further inquiry or proceedings were necessary. The Survey Report format is under the authority of the Government and, therefore, cannot be taken to be an independent exercise of the Wakf Board. It was further submitted that the Errata notification is issued under the authority of the Government., It was submitted that Inam means a grant of rent‑free land which was hereditable and for perpetual occupation. Inams were categorized as (a) Sanadi Inam and (b) Gaonnisbat Inam. Sanadi Inam was a grant from the ruling power of the time of grant free from all Government exactions, in perpetuity whereas Gaonnisbat Inam was land granted rent free by the village of its own. Jagir means a grant of land made by the Government to an individual as a reward for special service., It was thus argued that in deciding the Wakf character of the Dargah property, the concept of a Jagir and the Jagir Abolition Regulation as also the concept of an Inam and the Inam Abolition Regulation need to be carefully examined as the documents produced have mentioned Jagir village, Inam lands, Mashrut-ul‑Khidmat, Crown grant, Jagir conditional on service, exempted Jagir, etc. Both statutes have special provisions for religious and charitable institutions., It was argued that the Commutation Award dated 5 June 1959 was provisional and does not clearly indicate the amounts payable in terms of Regulation 10 which provides ninety percent of the revenue to be made over to the religious institution. It was submitted that the unique concept of a Wakf including permanent dedication to the Almighty has to be kept in mind. Recent legislative clarifications have made Mashrut-ul‑Khidmat part of the definition of Wakf. Wakf is different from a trust where the legal title of property is held by the trustee but the beneficial title in equity is held by the beneficiary. Furthermore, Wakf can be by user in the absence of a deed or declaration and once a property is considered Wakf property it remains forever as a Wakf property., Mr. Nakul Dewan inter alia raised the argument that even if, arguendo, principles of natural justice have been violated, the jurisdiction of the Wakf Tribunal is not ousted. It was further argued that Section 13(2) of the Enquiries Act gives finality to an order passed therein., It was argued that the core issue in dispute touches upon the character of the land and cannot be determined by the writ court. For the appellants to succeed, it needs to be proved that the Dargah does not have title on the land. However, such question cannot be comprehensively determined by a court exercising writ jurisdiction under Article 226 of the Constitution because there are disputed questions of fact and a final binding judgement of the Atiyat Court passed on 31 May 1957, which has confirmed that the land was granted for a religious and pious purpose under Muslim law., It was further argued that the land was a conditional grant for the service of Dargah and would continue to remain a Wakf. In Muntakhab No. 98 issued in 1958, the Nazim‑Atiyat mentioned the grant of Jagir village Manikonda as crown grant. In terms of Section 13 of the Enquiries Act, the orders passed in cases relating to Atiyat Grants shall not be questioned in any court of law. It was further argued that the Wakf Tribunal has been statutorily conferred with exclusive jurisdiction to deal with the question as to whether the land was a Wakf property or not., The final determination as to whether the appellants have been able to make out their principal case that the land is not Wakf land, the seven issues were suggested. Thus, the discretion exercised by the High Court of Andhra Pradesh to direct all issues to be determined by the Wakf Tribunal does not require any interference by this Court., It was also argued that the judgment in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. is distinguishable as the High Court can decline to exercise its jurisdiction if it is satisfied that an aggrieved party can obtain relief before an alternative forum. Reference was made to judgment of this Court reported as Commissioner of Income Tax & Ors. v. Chhabil Dass Agarwal. In Whirlpool, the High Court relegated the parties to the statutory forum without examining the contention but in the present case, the High Court after detailed examination, eventually declined to exercise jurisdiction under Article 226 of the Constitution in view of the alternate statutory remedy available to the parties., We have heard learned counsels appearing for the parties at length over few days wherein the detailed arguments were addressed, many documents were referred to and the parties also submitted the written submissions. We find that the following questions arise for consideration by this Court, including the questions suggested by Mr. Nakul Dewan: (1) Whether the High Court of Andhra Pradesh was justified in relegating the parties to the remedy before the Wakf Tribunal? (2) Whether the Government was entitled to dispute the validity of errata notification before the Writ Court under Article 226 of the Constitution? (3) Whether the State is estopped to challenge the notification inter‑alia on the ground that Government Pleader was present before the Nazim‑Atiyat and before the High Court in proceedings against the order passed by Nazim‑Atiyat and that the notification was published in State Government Gazette? (4) Whether the notification published at the instance of the Wakf Board is in exercise of power conferred under Section 32 read with Section 40 of the 1995 Act? (5) Whether the second survey report and/or the order of the Atiyat Court could be said to be sufficient material with the Wakf Board to publish the impugned Errata notification in exercise of powers vested in Section 5 of the 1995 Act? (6) Whether the order of the Atiyat Court deals with the question of succession to receive grants or it is relevant to determine the nature of grant as conditional grant for the service of the Dargah? (7) Whether the land in question is Mashrut-ul‑Khidmat land and thus would continue to be Wakf land even though the Jagir of the village was abolished or that the land vested in the State under Abolition Regulations or the Commutation Regulations or under the Iman Abolition Act? (8) Whether, in the event the errata notification is held valid, the Dargah would be entitled to recover possession of the land or alternatively, whether the respondents are entitled to recover possession of all vacant portions of the land and are entitled to compensation in respect of those portions of the land on which construction has been carried out?, The High Court of Andhra Pradesh in its detailed order has discussed the provisions of law and the documents referred to by the parties. The findings recorded are indicative of the fact that the High Court of Andhra Pradesh had not agreed with the arguments raised on behalf of the State which is apparent from the fact that the Writ Petition No. 23578 of 2007 filed by the State and the Corporation was dismissed. Before dismissing the writ petition filed by the State and other aggrieved parties, the High Court did not agree with the arguments advanced by the learned Advocate General that on payment of commutation amount in terms of the Abolition and Commutation Regulations, Mashrut-ul‑Khidmat stood reversed and vested in the Sovereign. Therefore, the presumption that the title to the tract of the land in the territory always vested in the Sovereign is not attracted. Though the said finding is said to be prima facie, but having discussed the provisions of the statute, the High Court has in fact returned the finding against the State. Still further, referring to various documents relied upon by the parties, the High Court found that the documents produced needed to be clarified and explained by whichever party who was relying on them. A deeper probe in relation to the contemporaneous circumstances was required to be made and the contextual events of the period when the ancient documents came into existence were required to be examined, may be by oral or other documentary evidence. On perusal of the various documents produced by the parties, the High Court held that it was not possible at all to countenance submission of the Advocate General that the subject land is not Wakf and it was taken over by the Government on abolition of jagirs.
id_842	5	Such finding coupled with the conclusion of dismissing the writ petitions shows that the High Court did not find any merit in the writ petition filed by the State, though the High Court was conscious of the fact that interpretation of documents was required to be made. Mr. Ahmadi while raising an argument that there is an alternative efficacious remedy available to the State to seek adjudication from the Wakf Tribunal, was candid enough to say that the jurisdiction of the Writ Court cannot be said to be barred. It was argued that since disputed question of facts arose for consideration, therefore Writ Court was not the appropriate forum to decide the disputed question of facts. Mr. Ahmadi relied upon the judgments as mentioned in para 85 for supporting such averment., In K.K. Kochunni's case, the Constitutional Bench held that mere existence of an adequate alternative legal remedy cannot per se be a good and sufficient ground for throwing out a petition under Article 32, if the existence of a fundamental right and a breach – actual or threatened, is alleged and is prima facie established by the petition. It was a case where the constitutionality of an Act was challenged as violative of Article 19(1)(f) or Article 31(1) of the Constitution. The Supreme Court of India held as under: In other words he maintains that nobody has the fundamental right that the Supreme Court of India must entertain his petition or decide the same when disputed questions of fact arise in the case. We do not think that that is a correct approach to the question. Clause (2) of Article 32 confers power on the Supreme Court of India to issue directions or orders or writs of various kinds referred to therein. The Supreme Court of India may say that any particular writ asked for is or is not appropriate or it may say that the petitioner has not established any fundamental right or any breach thereof and accordingly dismiss the petition. In both cases the Supreme Court of India decides the petition on merits. But we do not countenance the proposition that, on an application under Article 32, the Supreme Court of India may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground., In Rashid Wali Beg, the Supreme Court of India examined all the previous judgments on the question as to whether any property is a wakf property or not is triable exclusively by the Wakf Tribunal but the judgments discussed therein pertained to the invocation of the jurisdiction of the Civil Court or of the Wakf Tribunal. None of the judgments dealt with the invocation of the jurisdiction of the writ court. Anis Fatima Begum is again not a judgment arising out of a writ petition filed before the High Court. It was a case of a suit filed before the Civil Court, though in para 7, there is an observation that all matters pertaining to wakf should be filed in the first instance before the Tribunal and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution. The observation made by the Supreme Court of India in respect of invocation of the jurisdiction of the writ court is clearly obiter as that was not the question arising for consideration. A three‑judge Bench of the Supreme Court of India in Director of Settlements, Andhra Pradesh & Ors. v. M.R. Apparao & Anr. held that a judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An obiter dictum as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, it cannot be denied that it is of considerable weight. Thus, a judgment is a binding precedent on the question which arises for consideration and not otherwise., The judgment in T.R. Varma arises out of an order of dismissal of a government servant under Article 311(2) of the Constitution. In these circumstances, it was held that a person who alleges that his services have been wrongfully terminated is entitled to institute any action to vindicate his rights, and in such an action, the Supreme Court of India would be competent to award all the reliefs to which he may be entitled to, including some which would not be admissible in the writ petition. Further, Ghaus Mohammad was a case wherein an order passed against the respondent under the Foreigners Act, 1946 was set aside by the High Court. However, these judgments are not indicative of the fact that disputed questions of fact cannot be adjudicated upon in the writ petition under Article 226 of the Constitution of India., In Committee of Management, the refusal to grant approval to the proposal of the Managing Committee of the appellant for removal of a member of the teaching faculty was challenged by way of writ petition before the High Court. The petition was dismissed in view of an alternative remedy available with the appellant. The Supreme Court of India held that it is beyond any doubt or dispute that availability of an alternative remedy by itself may not be a ground for the High Court to refuse to exercise its jurisdiction. It was held that the High Court may exercise its writ jurisdiction despite the fact that an alternative remedy is available, inter alia, in a case where the same would not be an efficacious one. It was held that in the case of this nature, where the appellant not only questioned the validity of the Act but also alleged commission of jurisdictional error on the part of the Vice Chancellor in implementing the provisions of a statute, such an intricate question should ordinarily fall for determination by the High Court itself., In Alka Subhash Gadia (Smt), it was held that there is a difference between existence of power and its exercise. The powers under Articles 226 and 32 are wide and unimpeded by any external restrictions and can reach any executive order resulting in civil or criminal consequences. The Courts have over the years evolved certain self‑restraints for exercising these powers in the interest of administration of justice and for better, more efficient and informed exercise of the said powers., In Whirlpool Corporation, dispute was pertaining to registration of the Trademarks. The appellant filed a writ petition challenging suo motu action taken by the Registrar of the Trademark under Section 56(4) of the Trade and Merchandise Marks Act, 1958. The Supreme Court of India held as under: The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for any other purpose. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. However, the alternative remedy has been consistently held by the Supreme Court of India not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation., We do not find any merit in the arguments raised by Mr. Dewan that the judgment in Whirlpool is distinguishable. In fact, the Supreme Court of India in appeal against the order of the High Court set aside the notice issued by the Registrar of the Trademarks. The triple test reiterated by the Supreme Court of India are where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or when the vires of an Act is challenged. Thus, the order of the Registrar was set aside in a writ petition., The judgment in Balkrishna Ram is in respect of transfer of an intra‑court appeal to the Armed Forces Tribunal against an order passed by the learned Single Bench of the High Court. Since similar question is not arising in the present appeal, we do not find any help can be taken by the learned counsel for the appellant on the aforesaid judgment., A three‑judge bench in a judgment reported as Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Others held that the High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226, the High Court has jurisdiction to try issues both of fact and law. It was held as under: A writ petition under Article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition., The Supreme Court of India in a judgment reported as Radha Krishan Industries v. State of Himachal Pradesh examined the question of maintainability of a writ petition before the High Court even when there was an alternative remedy available under the Goods and Services Tax Act, 2017. The Supreme Court of India held as under: In this background, it becomes necessary for the Supreme Court of India to dwell on the rule of alternate remedy and its judicial exposition. In Whirlpool Corporation v. Registrar of Trade Marks, a two‑Judge Bench of the Supreme Court of India after reviewing the case law on this point, noted: The principles of law which emerge are that: 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. 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. 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., The reliance of Mr. Dewan on Chhabil Dass Agarwal is again not tenable for the reason that challenge in the aforesaid appeal was to the quashing of a notice for assessment under Section 148 of the Income Tax Act. The Supreme Court of India held as under: The Constitution Benches of the Supreme Court of India in K.S. Rashid and Son v. Income Tax Investigation Commission, Sangram Singh v. Election Tribunal, Union of India v. T.R. Varma, State of Uttar Pradesh v. Mohd. Nooh and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted., It was found that the Income Tax Act provides complete machinery for assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities. The remedy under the statute must be effective and not a mere formality with no substantial relief. Having said so, the Supreme Court of India held that the Writ Court ought not to have entertained the writ petition filed by the assessee wherein the legality of the notice issued under Section 148 of the Income Tax Act alone was the subject matter of challenge., We find that the High Court has examined the merits of the contention raised including the documents filed so as not to accept the contentions of the State. Though the High Court has expressed the same to be prima facie view, but in fact, nothing was left to suggest that it was not a final order as far as the State is concerned with the order of the dismissal of its writ petition. Even otherwise, we find that the questions raised before the Supreme Court of India are the interpretation of the statutes, the Farmans issued by the Sovereign from time to time and the interpretation of the document to the facts of the present case. It is not a case where any oral evidence would be necessary or is available now. In fact, that was not even the suggestion before the Supreme Court of India. Since the question was in respect of interpretation of the statutes and the documents primarily issued by the Sovereign, the matter needs to be examined on merits as detailed arguments have been addressed by learned counsel for the parties. Thus, we find that the High Court erred in law, in the facts and circumstances of the case, to relegate the parties to the statutory remedy., Whether the Government was entitled to dispute the validity of Errata notification before the Writ Court under Article 226 of the Constitution? Admittedly, the Government is reflected as the owner of the land in question since the year 1912-13. The Government has exercised its rights of ownership as a successor of the Sovereign. Consequent to Abolition Regulation and payment of commutation under the Commutation Regulation, the State Government had transferred land to the Corporation. A public notice was also issued to invite objections, if any, to the allotment of the land but since none were received, the Corporation made further allotment to various corporate entities. The Wakf Board is a statutory authority established under the Act and is a State within the meaning of Article 12 of the Constitution. A Constitution Bench of the Supreme Court of India in a judgment reported as Rajasthan State Electricity Board, Jaipur v. Mohan Lal & Ors held that the expression other authorities in Article 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities., Similar view that an authority created by a Statute is state within the meaning of Article 12 was considered in a judgment reported as State of Uttar Pradesh v. Neeraj Awasthi & Ors. when it was held that the Uttar Pradesh Agricultural Produce Market Board constituted by a statute Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 is a State within the meaning of Article 12 of the Constitution., Since the Wakf Board is state, it has act to act fairly and reasonably. The Supreme Court of India in a judgment reported as Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay held that the action of a statutory authority must be reasonable and taken only upon lawful and relevant grounds of public interest. The Court held as under: Therefore, Mr. Chinai was right in contending that every action/activity of the Bombay Port Trust which constituted State within Article 12 of the Constitution in respect of any right conferred or privilege granted by any statute is subject to Article 14 and must be reasonable and taken only upon lawful and relevant grounds of public interest. Reliance may be placed on the observations of this Court. Where there is arbitrariness in State action, Article 14 springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14. The observations in paras 101 and 102 of the Escorts case (1986) 1 SCC 264 : 1985 Supp 3 SCR 909 read properly do not detract from the aforesaid principles., In another judgment reported as Shrilekha Vidyarthi (Kumari) v. State of Uttar Pradesh, the Supreme Court of India held that arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity. The Court held as under: It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind., In another judgment reported as M.J. Sivani and others v. State of Karnataka, the Supreme Court of India held that fair play and natural justice are part of fair public administration; non‑arbitrariness and absence of discrimination are hallmarks for good governance under rule of law. It was held as under: It is settled law that every action of the State or an instrumentality of State must be informed by reason. Actions uninformed by reason may amount to arbitrary and liable to be questioned under Article 226 or Article 32 of the Constitution. The action must be just, fair and reasonable. Rejection of the licence must be founded upon relevant grounds of public interest. Fair play and natural justice are part of fair public administration; non‑arbitrariness and absence of discrimination are hallmarks for good governance under rule of law, therefore, when the State, its delegated authority or an instrumentality of the State or any person acts under a statutory rule or by administrative discretion, when its actions or orders visit the citizen with civil consequences, fairness and justness require that in an appropriate case, the affected citizens must have an opportunity to meet the case. Audi alteram partem is part of the principles of natural., Thus, the State Government, as a juristic entity, has a right to protect its property through the writ court, just as any individual could have invoked the jurisdiction of the High Court. Therefore, the State Government is competent to invoke the writ jurisdiction against the action of the Wakf Board to declare the land measuring 1654 acres and 32 guntas as wakf property., An argument was raised that the writ petition should not have been filed by the State Government challenging the publication of a notification in the State Gazette and that the dispute between the Revenue Department and Minority Department should be considered by the Secretaries of the State government. The said argument raised was based upon an order passed by the Supreme Court of India as Chief Conservator of Forests, Government of Andhra Pradesh wherein the reliance was placed on an earlier judgment reported as Oil and Natural Gas Commission v. Collector of Central Excise., The Constitution Bench in a judgment reported as Electronics Corporation of India Limited v. Union of India has recalled the orders passed in the past including the orders passed in Oil and Natural Gas Commission, the judgment which was relied upon by the High Court. It was held that the mechanism was set up with a laudatory object. However, the mechanism has led to delay in filing of civil appeals causing loss of revenue. One cannot possibly expect timely clearance by the Committees. In such cases, grant of clearance to one and not to the other may result in generation of more and more litigation. The mechanism has outlived its utility. Therefore, reliance on the judgment in Chief Conservator of Forests is not tenable and no such objection survives., It may be noticed that the writ petition was filed by the Chief Secretary of the State when inter‑departmental communications of the Revenue and the Minority Welfare Department were at cross purposes. The communications dated 25 January 2007, 4 May 2007 from the Minority Welfare Department are to direct the Collector to deliver possession of the balance/vacant and unutilized land whereas the communication dated 12 June 2007 to the Secretary Revenue Department was for a request that the Corporation should maintain status quo and not allot or alienate any land unless and until the issue is finalized by the State Government. Such letters were forwarded to the Wakf Board as well. The Minority Welfare Department was in fact seeking decision by the State Government. These communications are not the orders passed by the Minority Welfare Department of the State Government in respect of nature of land so as to raise the bar of invocation of writ jurisdiction by the State., Whether the State is estopped to challenge the notification inter‑alia on the ground that Government Pleader was present before the Nazim Atiyat and before the High Court in proceedings against the order passed by Nazim Atiyat and that the notification was published in State Government Gazette? It is to be noted that the presence of the Government Pleader before the Nazim Atiyat was for a limited purpose as the grants were to be paid by the State Government. The State was not a party either before the Nazim Atiyat or before the High Court. The State would be bound by the orders, if it was impleaded as party as it is likely to be affected on account of the orders passed. The liability of the State for payment of grant was not in dispute but the question was as to whom the grants would be payable. Thus, the presence of Government Pleader was for the limited purpose of facilitating the implementation of the orders passed., A perusal of the record of the Wakf Board, as extracted above, shows that the Errata notification was published when the same was sent by the Chief Executive Officer of the Wakf Board to the Commissioner, Government Printing Press on 13 March 2006. This publication of notification was made under Section 5(2) of the 1995 Act under the authority of the Chief Executive Officer of the Wakf Board. Hence, the notification was not at the instance of the State Government but was an act of the Wakf Board alone., The argument raised that since the Errata notification was published in State Government Gazette, therefore, the State cannot turn around to say that they had no knowledge or that they are not bound by the notification so published is not tenable. We find that the purpose, object and scope of the publications in the Official Gazette is not what is sought to be contended. The Supreme Court of India is to presume the genuineness of any documents published in any Official Gazette as contemplated by Section 81 and Section 114(e) of the Evidence Act, 1872. The publication in the Official Gazette is not only for the affairs of the State but has multiple uses. In fact, this question has been examined by a Division Bench of Delhi High Court in a judgment reported as Universal Cans & Containers Ltd. v. Union of India, wherein the Court has quoted various parts of the Gazette required to be published by the Central Government. Section 4, Part III of the Gazette is meant for Miscellaneous Notifications including Notifications, Orders, Advertisements and Notices issued by Statutory Bodies, whereas Part IV is meant for Advertisements and Notices issued by Private Individuals and Private Bodies. Similar scheme of the publication in the Gazette would be available in the States as well. The High Court held as under: Under Section 3(39) of the General Clauses Act, 1897, Official Gazette or Gazette shall mean the Gazette of India or the Official Gazette of a State. What is Official Gazette and under what authority it is published? is yet another question. A Gazette is generally understood as an Official Government Journal containing public notices and other prescribed matters. Legal Glossary (1983 Edition) issued by the Legislative Department of the Ministry of Law, Justice and Company Affairs, Government of India, defines Gazette as an official newspaper containing lists of Government appointments, legal notices, dispatches, etc., Under Section 81 of the Indian Evidence Act, 1872, the Supreme Court of India shall presume the genuineness of every document purporting to be in Official Gazette, and read with Section 114(e) of the said Act and Illustration (e) there to, the Court can presume that the Official Gazette was notified on the date as appearing in the Official Gazette. However, this is only a rebuttable presumption. It can be rebutted by the evidence to the contrary. As noted above, in the present case it has been shown that the Official Gazette was notified on a date after the date appearing on the Gazette. Section 5 of the General Clauses Act, 1897, provides that where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day that receives the assent of the President. This is not applicable to the present case. Here we are concerned with a notification in the Official Gazette., The Wakf Board is a statutory authority under the 1954 Act as well as under the 1995 Act. Thus, the Official Gazette had to carry any notification at the instance of the Wakf Board. Therefore, the State Government is not bound by the publication of the notification in the Official Gazette at the instance of the Wakf Board only for the reason that it has been published in the Official Gazette. The publication of a notice in an Official Gazette has a presumption of knowledge to the general public as an advertisement published in a newspaper. Therefore, mere reason that the notification was published in the State Government Gazette is not binding on the State Government., Whether the notification published at the instance of the Wakf Board is in exercise of power conferred under Section 32 read with Section 40 of the 1995 Act?
id_842	6	It has been argued that the Board is competent to collect information regarding any property which it has reason to believe to be Wakf property and if any question arises as to whether a particular property is a Wakf property or not, or whether a Wakf is a Sunni Wakf or a Shia Wakf, it may, after making such inquiry as it may deem fit, decide the question., The argument of Mister Ahmadi is that the Board under Section 32(2)(n) has the power to investigate and determine the nature and extent of Wakf and Wakf property and to cause whenever necessary a survey of such Wakf property. It is thus contended that the Wakf Board has a statutory function to investigate and determine the nature and extent of Wakf. Such power is not dependent upon the provisions of Section 40 of the 1995 Act as the power to investigate and determine is exhaustive as contained in Section 32(2)(n) of the 1995 Act., Reliance has been placed upon a judgment of the High Court of Kerala in A.P. A. Rasheed wherein the Division Bench examined the question as to whether a Wakf Board acting under Section 32 of the 1995 Act is an adjudicatory body. The High Court of Kerala held that powers under Section 32 are in the nature of powers of superintendence in administration and empower the Wakf Board to pass interim as well as final orders. The Court held: 10. But it cannot be lost sight of that, basically the powers under Section 32 are in the nature of the powers of superintendence in administration. A reading of Section 32 clearly shows that Section 32 does not make any distinction between final orders and interim orders. When the situation demands, Section 32 certainly empowers the Wakf Board to pass interim orders as well as final orders. There is nothing in the language of Section 32 which can limit the powers of the Board to pass only final orders and not interim orders. The sweep of the powers under Section 32(1) as further explained by Section 32(2), according to us, can leave no semblance of doubt in our minds that interim as well as final directions can be issued by the Board under Section 32. The first contention raised that the Board does not have competence to issue interim orders like the one issued in the impugned orders cannot therefore succeed. This point is answered against the first respondent. 12. We repeat that the powers under Section 32 are powers of superintendence. Such powers are to be exercised primarily to ensure that the Wakfs are properly maintained, controlled and administered. This is very clear from Section 32(1). Section 32(2)(c) clearly suggests that the Wakf Board has powers to give directions for the administration of the Wakf. Sub clause (o) shows that the Board has powers to do such acts as may be necessary for the control, maintenance and administration of the Wakf., The High Court in the aforementioned case was examining the scope of Section 32. It held that such powers are to be exercised primarily to ensure that the Wakfs are properly maintained, controlled and administered. Sub‑clause (o) shows that the Board has powers to do such acts as may be necessary for the control, maintenance and administration of Wakf., Mister Ahmadi has further relied upon an order passed by the learned Single Bench of the Calcutta High Court in Amjad Ali Mirza's case. It may be stated that a sale deed was executed by the Secretary of State for India‑in‑Council in favour of five men managing committee on 31 July 1926. One of the questions examined was the scope of Section 40 of the 1995 Act. It was held that the impugned resolution of the Wakf Board under Section 40 of the 1995 Act was virtually devoid of reasons. The title in respect of a property was decided by the resolution but the Board did not record even a semblance of judicial consideration while taking the resolution. However, the Court examined the sale deed dated 31 July 1926 to hold that the transfer was not in favour of the committee members in their personal capacity or for their individual interest but solely for the worship of the Mohammedan community. The High Court of Calcutta held: 54. Section 40 of the Waqf Act empowers the board to collect information by itself about a property which it has reason to believe to be waqf property and after making an inquiry as it may deem fit, to decide such question. The section does not specify the nature of inquiry to be undertaken by the board in arriving at a decision in that regard. In view of the summary nature of the proceeding as contemplated in the said section, detailed evidence or hearing might not be taken or given by the board before coming to a decision as to whether a property is a wakf property. In the present case, what is to be seen is whether adequate documents and materials were before the board to declare the suit property to be a waqf property. 58. As such, the deed of 1926 makes it categorically clear that the transfer was not in favour of the committee members in their personal capacity or for their individual interest but solely for the worship of the Mohammedan community. 63. Although Section 40 was not complied with in terms in the strictest sense, the spirit of Section 40 was complied with inasmuch as the board considered a deed of 1926, the execution of which has not been rebutted by the petitioners. The said deed, on a meaningful reading, can only be interpreted to be a dedication for the purpose of the God Almighty and worship by the Mohammedan community, if not directly in the name of God Almighty. The will of Allah in the Islamic sense has to be manifested through human agency, for which the investiture contemplated in the 1926 deed was in favour of the human beings, who would act as agents to perpetuate worship by the Mohammedan community. 64. Hence, despite the resolution taken by the board being technically unsound due to dearth of reasons, the conclusion arrived at by the Board was correct., Therefore, the judgment of the High Court was interpreting the document which was subject matter of consideration before the High Court. The inquiry under Section 40 was found to be perfunctory without recording any reasons. Therefore, the said judgment is actually not helpful to the argument of Mister Ahmadi., The question to be examined is whether the power to investigate and determine the nature of property is an administrative function as submitted by the learned counsel for the Wakf Board and Dargah or is it a quasi‑judicial function as an inquiry is required to be conducted before any property is declared to be Wakf property. It was argued by the appellants that since such order of the Wakf Board is final, subject only to an appeal before the Wakf Tribunal, it has to be a reasoned and speaking order as in appeal, the correctness of the reasons recorded by the Board would be required to be examined., The test to determine whether an institution discharges quasi‑judicial function came up for consideration before the Supreme Court of India in a judgment reported as Indian National Congress. The Supreme Court of India held that if law requires that an authority before arriving at a decision must make an inquiry, such a requirement of law makes the authority a quasi‑judicial authority. The Supreme Court of India held: 25. Applying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi‑judicial authority is sufficient to hold that such a statutory authority is quasi‑judicial authority. However, in the absence of a lis before a statutory authority, the authority would be quasi‑judicial authority if it is required to act judicially. 27. What distinguishes an administrative act from a quasi‑judicial act is, in the case of quasi‑judicial functions under the relevant law the statutory authority is required to act judicially. In other words, where law requires that an authority before arriving at a decision must make an inquiry, such a requirement of law makes the authority a quasi‑judicial authority., In a Constitution Bench judgment reported as Province of Bombay v. Khushaldas S. Advani & Ors., the Supreme Court of India deduced principles as to when an authority can be said to be exercising quasi‑judicial functions. It was held that the absence of two parties is not decisive in taking the act of the authority out of the category of quasi‑judicial act if the authority is nevertheless required by the statute to act judicially. The Supreme Court of India held: 173. What are the principles to be deduced from the two lines of cases I have referred to? The principles, as I apprehend them, are: (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi‑judicial act provided the authority is required by the statute to act judicially. 174. In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi‑judicial act if the authority is nevertheless required by the statute to act judicially., The Supreme Court of India in a judgment reported as State of Himachal Pradesh v. Raja Mahendra Pal & Ors. held that a quasi‑judicial function stands midway between a judicial and an administrative function. The primary test is as to whether the authority alleged to be a quasi‑judicial one has any express statutory duty to act judicially in arriving at the decision in question. If the answer is affirmative, the authority would be deemed to be quasi‑judicial, and if negative, it would not be. The Supreme Court of India held: 9. It follows, therefore, that an authority is described as quasi‑judicial when it has some of the attributes or trappings of judicial functions, but not all. This Court in Province of Bombay v. Khushaldas S. Advani [AIR 1950 SC 222 : 1950 SCR 621] dealt with the actions of the statutory body and laid down tests for ascertaining whether the action taken by such a body was a quasi‑judicial act or an administrative act. The Court approved the celebrated definition of the quasi‑judicial body given by Atkin, L.J., as he then was in R. v. Electricity Commissioners [(1924) 1 KB 171 : 130 LT 164] in which it was held: Whenever any body of persons having legal authority to determine questions affecting rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs. Radeshyam Khare v. State of M.P. [AIR 1959 SC 107 : (1959) 1 MLJ 5 (SC)] relying upon its earlier decision held: It will be noticed that this definition insists on three requisites each of which must be fulfilled in order that the act of the body may be quasi‑judicial act, namely, that the body of persons (1) must have legal authority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act judicially., Learned counsel for the appellants contends that where a statute requires decision to be arrived at purely from the point of view of policy or expediency the authority is under no duty to act judicially. He urges that where, on the other hand, the order has to be passed on evidence either under an express provision of the statute or by implication and determination of particular facts on which its jurisdiction to exercise its power depends or if there is a proposal and an opposition the authority is under a duty to act judicially. As stated in paragraph 115 of Halsbury's Laws of England, Vol. 11 at p. 57 the duty to act judicially may arise in widely differing circumstances which it would be impossible to attempt to define exhaustively. The question whether or not there is a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular statute with the assistance of the general principles laid down in the judicial decisions., The Supreme Court of India in a judgment reported at Kranti Associates held: 47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi‑judicial or even administrative power. (f) Reasons have virtually become as indispensable a component of a decision‑making process as observing principles of natural justice by judicial, quasi‑judicial and even by administrative bodies., In respect to the provisions of Section 32 of the 1995 Act, a Division Bench of the High Court of Kerala in a judgment reported as Ezhome Sunni Valiya Juma Masjid v. Kerala State Wakf Board held that when the Wakf Board is called upon to decide a lis which falls within its jurisdiction and has to be done based on the materials made available before it, after hearing the parties and its decision has far‑reaching repercussion on the rights of the parties, it is a quasi‑judicial function. The High Court of Kerala held: 10. The aforementioned provisions dealing with the powers and duties of the Wakf Board and other related provisions under the Act would reveal there may be many acts which may be done by the Board. Among them, some are obviously administrative in nature. But, when the Board is called upon to decide a lis which falls within its jurisdiction and has to be done based on the materials made available before it, after hearing the parties and its decision has far‑reaching repercussion on the rights of the parties, it has a quasi‑judicial function. (See the decision in Puthencode Juma‑ath Committee v. Abdul Rahiman, [2011 (3) KLT (SN) 155]). A quasi‑judicial function is an administrative function which the law requires to be exercised in some respects as if it were judicial. It is subject to some measure of judicial procedure. As regards quasi‑judicial functions, they cannot be delegated unless the authority concerned is enabled to do so expressly or by necessary implication. The general principle is that where any kind of a decision on a lis has to be made, it must be made by the authority empowered by the statute concerned and by no one else., Thus, we find that the power of the Board to investigate and determine the nature and extent of Wakf is not purely an administrative function. Such power has to be read along with Section 40 of the Act which enjoins a Wakf Board to collect information regarding any property which it has reason to believe to be Wakf property and to decide the question about the nature of the property after making such inquiry as it may deem fit. The power to determine under Section 32(2)(n) is the source of power but the manner of exercising that power is contemplated under Section 40 of the 1995 Act. An inquiry is required to be conducted if a Board on the basis of information collected finds that the property in question is a Wakf property. An order passed thereon is subject to appeal before the Wakf Tribunal, after an inquiry required is conducted in terms of subsection (1) of Section 40. Therefore, there cannot be any unilateral decision without recording any reason as to how and why the property is included as a Wakf property. The finding of the Wakf Board is final, subject to the right of appeal under sub‑section (2). Thus, any decision of the Board is required to be a reasoned order which could be tested in appeal before the Wakf Tribunal., Therefore, the Wakf Board has power to determine the nature of the property as Wakf under Section 32(2)(n) but after complying with the procedure prescribed in Section 40. Such procedure categorically prescribes an inquiry to be conducted. The conduct of inquiry presupposes compliance with the principles of natural justice so as to give opportunity of hearing to the affected parties. The proceedings produced by the Wakf Board do not show any inquiry conducted or any notice issued to either of the affected parties. Primarily, two factors had led the Wakf Board to issue the Errata notification, that is, order of the Nazim Atiyat and the second survey report. Both may be considered as material available with the Wakf Board but in the absence of an inquiry conducted, it cannot be said to be in accordance with the procedure prescribed under Section 40 of the 1995 Act., Since there is no determination of the fact whether the property in question is a Wakf property after conducting an inquiry in terms of Section 40(1) of the 1995 Act, the Errata notification cannot be deemed to be issued in terms of Section 32 read with Section 40 of the 1995 Act. Such determination alone could have conferred right on the affected parties to avail the remedy of appeal under Section 40 of the 1995 Act., The reliance on the proviso to Section 40(3) of the 1995 Act, contemplating notice to the registered trust or society in case the Board has any reason to believe that any property is Wakf and is registered under any of the Acts is absolutely misconceived. These provisions deal with an altogether different situation. A trust or society is already registered but if the Board finds it to be Wakf, the statute contemplates notice to the authority. It does not mean that such trust or society is not required to be heard. The hearing to the trust or society would also be as per the principles of natural justice., Whether the second survey report and/or the order of the Atiyat Court could be said to be sufficient material with the Wakf Board to publish the impugned Errata notification in exercise of powers vested in Section 5 of the 1995 Act?, The argument in support of the Errata notification dated 13 March 2006 is that it is traceable to the powers conferred on the Wakf Board under Section 5 of the 1995 Act. The exercise of the publication of notification is the power conferred on the Wakf Board. Therefore, the fact that the second survey report was not submitted to the State Government was inconsequential as it was only a ministerial action. Once the Board had the power to publish notification after perusing the various documents, the same could not be said to be illegal only for the reason that the report was not submitted to the State Government as contemplated by sub‑section (1) of Section 5 of the 1995 Act. The argument raised by Mister Ahmadi that the notification is in terms of Section 5 of the 1995 Act is not tenable. It is an admitted case that the second survey report was not submitted to the State Government and such report has not even been forwarded by the Government to the Wakf Board. The Wakf Board may have a right to requisition of any document in terms of power conferred under Section 105 of the 1995 Act, but if a procedure is prescribed for issuance of a notification, it could be issued only in the manner prescribed and not in any other manner., Reference may be made to a judgment of the Supreme Court of India reported as Babu Verghese v. Bar Council of Kerala wherein the Court held: 31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, (1875) 1 Ch D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor, 63 Ind App 372 who stated: 'Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.' 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1954 SCR 1098 and again in Deep Chand v. State of Rajasthan, (1962) 1 SCR 662. These cases were considered by a Three Judge Bench of this Court in State of Uttar Pradesh v. Singhara Singh, AIR 1964 Supreme Court 358 and the rule laid down in Nazir Ahmad's case was again upheld. The rule has since been applied to the exercise of jurisdiction by Courts and has also been recognised as a salutary principle of administrative law., A Constitution Bench in a judgment reported as CIT v. Anjum M.H. Ghaswala reiterated that when a statute vests certain power in an authority to be exercised in a particular manner, then the said authority has to exercise the same only in the manner prescribed by the statute itself. It was held: 27. Then it is to be seen that the Act requires the Board to exercise the power under Section 119 in a particular manner i.e. by way of issuance of orders, instructions and directions. These orders, instructions and directions are meant to be issued to other income‑tax authorities for proper administration of the Act, the Commission while exercising its quasi‑judicial power of arriving at a settlement under Section 245D cannot have the administrative power of issuing directions to other income‑tax authorities. It is normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. If that be so since the Commission cannot exercise the power of relaxation found in Section 119(2)(a) in the manner provided therein it cannot invoke that power under Section 119(2)(a) to exercise the same in its judicial proceedings by following a procedure contrary to that provided in sub‑section (2) of Section 119., Therefore, we are unable to agree with Mister Ahmadi that since it was only a ministerial part of submission of the second survey report to the State Government, therefore, the Board had the jurisdiction to publish notification under Section 5., The question now to be examined is whether the Board could issue the Errata notification after a lapse of 17 years from the date of the first notification, i.e., 9 February 1989. The exercise leading to the notification started with a letter from Syed Safiullah Hussaini, the Mutawalli on 30 January 2005. He is the Mutawalli mentioned in the first notification published in the year 1989. Since the notification was issued with him as Mutawalli, then his inaction for 17 long years speaks volumes of his bona‑fide in initiating the process to include the large area of land as Wakf., We would need to examine as to what is the scope and meaning of the word errata. Errata is a term of French origin which means a thing that should be corrected. It means a mistake in printing or writing. Reference may be made to a judgment reported as Parvati Devi v. State of Uttar Pradesh. It was held: 20. The word Erratum (French) means a mistake in printing or writing; a note drawing attention to such a mistake. A list of mistakes added at the end of a book. 21. The word Errata is a word of French origin and means a thing that should be corrected. After a book has been printed, it often happens that certain mistakes are found to have been overlooked. In later editions, it is usual to insert a list of such mistakes and to point out the necessary corrections. These are called corrigenda. 23. In Judicial Dictionary by Justice L.P. Singh and Majumdar, 2nd Edition, page 552, while quoting the following passage in Assam Rajyik Udyog Karmi Sangha v. State of Assam, (1996) Gau. L.R. 236, (at page 241), the word corrigendum has been defined as follows: The dictionary meaning of the word corrigendum means things to be correct. It means there must be an error and there is a necessity to amend and rectify it. In the garb of corrigendum, a rule cannot be altered or changed, but that is what appears to have been done in the instant case. In order to alter or modify a rule the same procedure adopted in making of the rule have to be gone through. 24. The meaning and application of the word corrigendum has been considered by the Courts time and again. In Commissioner of Sales Tax, U.P. v. Dunlop India Ltd., (1994) 92 STC 571, this Court held that corrigendum is issued to correct a mistake in the notification, therefore, would relate back to the date of issuance of the original notification. 25. In Piara Singh v. State of Punjab, (2000) 5 SCC 765 : AIR 2000 SC 2352, the Hon'ble Supreme Court held that there is no bar on issuing the corrigendum or more corrigenda for correcting the arithmetical error. 27. In view of the above, the legal position can be summarised that a corrigendum can be issued only to correct a typographical error or omission therein. However, it is meant only to correct typographical/arithmetical mistake. It cannot have the effect of law nor it can take away the vested right of a person nor it can have the effect of nullifying the rights of persons conferred by the law., We find that in the facts of the present case, the Errata notification is nothing but a fresh notification altogether. Errata is a correction of a mistake. Hence, only arithmetical and clerical mistakes could be corrected and the scope of the notification could not be enlarged by virtue of an errata notification. As against 5,506 square yards of land notified as Wakf property in the year 1989, a large area of 1,654 acres and 32 guntas of land could not be included under the guise of an errata notification as it is not a case of clerical or arithmetical mistake but inclusion of large area which could not be done without conducting a proper inquiry either under Section 32(2)(n) read with Section 40 or on the basis of a survey report which was called by the State Government by appointing a Survey Commissioner., It may be noticed at this stage that the second survey report as called by the Wakf Board from the Survey Commissioner has many interpolations visible to the naked eye which creates a doubt on the correctness of the report which could form as a reasonable base to confer jurisdiction on the Wakf Board to include such land as a Wakf land., The other part of the question is as to whether the order of the Atiyat Court could be said to be relevant to determine the nature of Jagir village Manikonda as that of a Wakf land., The Enquiries Act was enacted to consolidate the law regarding Atiyat grants and enquiries as to claim of succession to, or any right, title or interest in Atiyat grants by repealing Dastoor‑ul‑Amal Inams and Circular No. 10 of 1338 Fasli (1928 AD). In fact, a Circular No. 19 of 1332 Fasli (19 March 1923) was initially issued by the Sovereign for judicial determination of disputes regarding Atiyat grants. The Circular No. 10 of 1338 Fasli (1928 AD) was re‑pleaded specifically in terms of Section 15 of the Enquiries Act., The Enquiries Act is a special Act to deal with the issues of succession in respect of grants given by the Sovereign. It is the decision of the Civil Court which is to prevail on question of succession, legitimacy etc. The jurisdiction of the Atiyat Courts is limited to the issues which fall within its jurisdiction. The dispute regarding claim of the commutation falls within the jurisdiction of the Enquiries Act.
id_842	7	The Atiyat grants also include the amount of compensation payable under the Inams Abolition Act. Section 2 provides that all Atiyat grants shall, subject to the provisions of the Abolition Regulation and the Inams Abolition Act, continue to be held by the holders thereof subject to the conditions laid down in the documents issued by competent authorities as a result of inam or succession inquiries held under the Dastoor-ul-Amal Inams or other Government orders on the subject and issued by way of continuance or confirmation of Atiyat grants., Section 3 of the Enquiries Act is subject to the provisions of the Abolition Regulation as well as the Inams Abolition Act because it contemplates that all Atiyat grants would continue to be held by the holders as laid down in the documents issued by competent authorities as a result of inam or succession inquiries. Under Section 3-A, the Atiyat Courts shall make inquiries as to any right, title or interest notwithstanding the enactment of the Abolition Regulation. Therefore, the scheme of the Act is to conduct inquiry in respect of entitlement to receive an Atiyat grant and to decide the right of succession amongst the persons entitled to receive the grants., The Enquiries Act ceases to apply when the commutation sum has ceased to be payable on account of the abolition of jagirs under Section 2(1)(b). Atiyat grants have been defined to mean, in the case of jagirs abolished under the Abolition Regulation, the commutation sums payable under the Commutation Regulation. The Atiyat grant excludes inams under the Inams Abolition Act but contemplates the payment of compensation within the ambit of Atiyat grants. The inquiry is to be held by Atiyat Courts in accordance with the provisions of the Act, including inquiries into claims to succession arising in respect of such grants., An appeal lies to the Board of Revenue against the order of the Nizam Atiyat in terms of Section 11 of the Act. The decision of the Civil Court is to prevail on questions of succession, legitimacy and similar matters in terms of Section 12 of the Act. Section 13 gives finality to the decision of the Atiyat Court., Sub‑section (2) provides that the orders passed in cases relating to Atiyat grants on or after 18 September 1948 and before the commencement of the Act by the Military Governor, the Chief Civil Administrator or the Chief Minister of Hyderabad or the Revenue Minister, by virtue of powers given or purported to be given to him by the Chief Minister, shall be deemed to be the final orders validly passed by a competent authority under the law in force at the time when the order was passed and shall not be questioned before any court of law., In Raja Ram Chandra Reddy, the order of the Chief Minister was treated to be an order of the Sovereign. It was held that no limitation could have been imported into the effect of the Farman of the Nizam. The Chief Minister's order would stand validated by Section 13(2) of the Enquiries Act irrespective of the competence of the preceding authorities which dealt with the case. The order passed by the Chief Minister on 29 May 1956 would be a binding order in terms of Section 13(2) of the Enquiries Act., Supreme Court of India held as follows: Even on the view suggested by Mr Engineer, the Chief Minister's order in such cases was to be taken as a substitute for the Nizam's Firman and the purpose of Section 13(2) was to obviate the possible objection that the Nizam's Firman in Atiyat cases was an exercise of his prerogative and could not be delegated. If, as contended, the true purpose of Section 13(2) was to supply the lack of the imprimatur of the Nizam's Firman, it is difficult to see why the operation of this provision should be confined to such of the Chief Minister's orders as are preceded by recommendations of competent authorities. No such limitation could have been imported into the effect of the Nizam's Firman at the time when the Nizam was in a position to issue the Firmans. The Supreme Court of India has no doubt, therefore, that if the intended effective order in a particular case was the Chief Minister's order, such an order would be validated by Section 13(2) irrespective of the competence of the preceding authorities who dealt with the case., It is to be noted that the Enquiries Act is applicable in respect of Atiyat grants alone. Atiyat grants after the commencement of the Jagir Abolition Regulation mean only the commutation sum payable under the Commutation Regulation or the compensation payable under the Inams Abolition Act or cash grants, etc. The Nizam Atiyat passed its order on 31 May 1957, when its jurisdiction was only in respect of commutation payable after the commencement of the Commutation Regulation. Factually, the order of the Nizam Atiyat concerned distribution of shares in the Biradari portion of Mashrut-ul‑Khidmat whereas the rest of the property was to be considered Madad‑Maash. Since the jurisdiction of the Nizam Atiyat was restricted only to the commutation amount payable, the finding regarding Mashrut-ul‑Khidmat land or a Madad‑Maash land is beyond the scope of the authority of a Nizam Atiyat on the date when the order was passed., A perusal of the order of the Nizam Atiyat shows that the Nizam was conscious of the factum of the Jagir Abolition Regulation, the Commutation Regulation as well as the Abolition of Inams Act. Therefore, the order was passed subject to the said three statutes. The statutes have to be read along with the order of the Chief Minister making it categorical that jagir Manikonda stood vested with the State. Consequently, the order of the Nizam Atiyat is operative only qua the commutation amount payable to the dependents of the Sajjada and the amount payable to the Muslim Wakf Board, now represented by the Wakf Board., In terms of Section 10(2)(i) of the Commutation Regulation, ninety percent of the gross basic sum referred to in Section 4 of the Commutation Regulation is payable to religious and charitable institutions. By virtue of the Abolition and the Commutation Regulation, the claim of the Wakf Board is restricted only to ninety percent of the amount of the gross basic sum referred to in Section 4 of the Commutation Regulation. After the Atiyat grants were abolished in terms of the Abolition Regulation, the Atiyat Courts would have jurisdiction to decide issues relating to succession of the commutation amount payable to the heirs., Whether the land in question is Mashrut-ul‑Khidmat land and thus would continue to be Wakf land even though the jagir of the village was abolished, or whether the land vested in the State under the Abolition Regulation, the Commutation Regulation or the Inams Abolition Act, is a question for determination., A perusal of the order of the Nizam Atiyat shows that the Sovereign issued a Royal Order on the first of Ramzan, 1333 Hijri (13 July 1915) directing the Sajjada to pay the debt amount in lump sum to the mortgagee Hussain Bin Muqaddam Jung. The said Farman has been produced by the learned counsel for the Dargah as reproduced in paragraph 44 of the order. It has also come on record that the Sovereign in 1249 Fasli granted a conditional jagir on Oodh‑O‑Gul (flowers and perfume) expenditure of the Dargah. The property was mortgaged with the sanction of the minister and therefore conforms to the conditional nature of the Maash as no permission would have been necessary if the property was self‑purchased. Referring to the order of the Chief Minister dated 29 May 1956, it was held that Manikonda and Guntapalli villages are conditional on service to the Dargah. Under Issue No.3, it was held that Syed Safiullah Hussaini as Sajjada shall be entitled to two‑thirds share according to the Sula‑e‑Sulsan rule in the property for rendering service, but such share was made subject to the Abolition Regulation, the Commutation Regulation and the Inams Abolition Act. The one‑third share of the total property was also allotted by the Nizam Atiyat. The order of the Nizam Atiyat was given effect to by issuing Muntakhab No. 98., The proceedings before the Nizam Atiyat started somewhere in the year 1923. The rights of the parties were being examined on the date when the plaint was filed before the Atiyat Court. Due to subsequent action of the Sovereign, a decision to abolish jagirs and consequently to pay the commutation was taken. The Enquiries Act was amended in 1956 which makes the provisions of the Enquiries Act inapplicable when the commutation sum has ceased to be payable under Section 16 and the Atiyat grants mean the commutation sums payable under the Commutation Regulation after the Abolition Regulation, and that even the commutation sum shall cease to apply to an Atiyat grant. Thus, the jurisdiction of the Atiyat Court would be limited to disputes relating to Atiyat grants as defined in the Enquiries Act., In a celebrated book titled Mohammedan Law by Syed Ameer Ali (compiled from the authorities in the original Arabic), the relevant explanation in respect of Wakfs of jagirs and grants made by Kings and Amirs reads as follows: Jagirs are of two kinds, one where the land has been granted in fee, that is, first the Sovereign has purchased it from the Bait‑ul‑Mal and presented it to the grantee, or it is a portion of the royal domains; second, where the usufruct is only granted and the jagir is vested in the Crown. In the former case, the grantee may make a Wakf; in the latter case not., The Privy Council in Vidya Varuthi Thirtha v. Balusami Ayyar & Ors. drew a fine distinction between the Wakf recognised by Muslim law, religious endowments recognised by Hindu law and the public charitable trust as contemplated by English law. The Court held that the conception of a trust apart from a gift was introduced in India with the establishment of Moslem rule and that in many documents of later times in parts of the country where Mahommedan influence has been predominant, such as Upper India and the Carnatic, the expression Wakf is used to express dedication. The Mahommedan law relating to trusts differs fundamentally from English law. It owes its origin to a rule laid down by the Prophet of Islam and means \the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings.\ When a particular property is declared Wakf, the right of the Wakf is extinguished and ownership is transferred to the Almighty. The manager of the Wakf is the Mutwali, the governor, superintendent or curator., The Supreme Court of India in Nawab Zain Yar Jung (deceased) & Ors. v. Director of Endowments & Anr. held that the Act of 1954 for the better administration and supervision of Wakfs defines a Wakf as a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by Muslim law as pious, religious or charitable and includes (i) a Wakf by user, (ii) Mashrut‑ul‑Khidmat, and (iii) a Wakf‑al‑al‑Ulad to the extent that the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable. A wakif means any person making such dedication. Consistently with this definition, a beneficiary is a person or object for whose benefit a Wakf is created and includes religious, pious and charitable objects and any other objects of public utility established for the benefit of the Muslim community., The question as to whether the grant of Mashrut‑ul‑Khidmat would continue to be Wakf land needs to be examined. The argument of Mr Giri is that Manikonda, being a jagir village, the grant was for the lifetime of the grantee and such grant was neither heritable nor alienable., In Ahmad‑un‑Nissa Begum, a full bench of the then Hyderabad High Court dealt with succession to the jagir estate of Nawab Kamal Yar Jung. It was held that the Ruler of the State was the absolute owner of all the lands. He granted usufructuary rights to the jagirdars. The jagir tenures in this State consisted of usufructuary rights in lands which were terminable on the death of each grantee, were inalienable during his life, the heirs of the deceased holder got the estate as fresh grantees and the right to confer the estate was vested in the Ruler and exercisable in his absolute discretion., The cumulative effect of the authorities referred to above is that all existing jagir tenures in the State were merged into State lands and the State alone became the ultimate landlord; the rights to receive allowances became statutory, heritable and justiciable. The proviso to sub‑section (2) of Section 21 directed completion of such proceedings according to the existing law, which term has been defined by clause (b) of Section 2 of Regulation No. LXIX of 1358 Fasli to mean the law in force at the commencement of this Regulation including the Atiyat Law, customs or usage having the force of law. Thus, even after the Regulation, sanction is necessary to complete the heirs' title to the income and compensation., The Supreme Court of India affirmed the judgment in Raja Rameshwar Rao and Another v. Raja Govind Rao, holding that the jagirs granted in Hyderabad State were not hereditary, although a son might be allowed to succeed to the father in the normal course. The State always had the right to resume the grant at its pleasure., The High Court of Hyderabad in Sarwarlal and Others v. State of Hyderabad and the Supreme Court of India in Sarwanlal & Anr. v. State of Hyderabad (Now Andhra Pradesh) & Ors. examined the nature of jagirs in Hyderabad, concluding that jagir tenures consisted of usufructuary rights terminable on the death of the grantee and were not absolute ownership., In M/s Trinity Infraventures Limited v. The State of Telangana, it was held that Paigah grantees were not absolute owners of the estates. The jagirs in Hyderabad were neither Zamindaries of Madras nor taluqdars of Uttar Pradesh. The jagirdars were entitled only to the usufructs of revenue from the estate for life and the grant, on the death of the jagirdar, reverted to the State. The Nizam could commute the military burden into a monetary payment and could resume the Paigah jagir at any time., The reliance of Mr Ahmadi upon an order passed by the Andhra Pradesh High Court in R. Doraswamy Reddy is not helpful. The High Court referred to the Supreme Court of India's judgment in Nawab Zain Yar Jung. In that case, the appellant asserted his rights as purchaser of land after a notification declaring such land to be Wakf property. The Court held that for non‑performance of service, the land can be resumed but this does not mean that the original grantor continues to be the owner of the property. Once a Wakf is created, it continues to be a Wakf. In the present case, the grantor of Mashrut‑ul‑Khidmat – that is, service to the Dargah – is not an individual but the Sovereign, in whom the entire interest in the property vested. Therefore, the Sovereign, as the ultimate repository of all functions of the State, can undo the grant of service. The jagir stood abolished with the Farman and the land consequently vested with the State, including the right of Mashrut‑ul‑Khidmat, which is an ancillary right to provide service to the Dargah., The Supreme Court of India noted that the judgment quoted in Sayyed Ali is not applicable to the present appeals because the Mashrut‑ul‑Khidmat service grant to the Dargah was granted by the Sovereign, and therefore the Sovereign had a right to withdraw that right. Such right was exercised by enacting the Abolition and Commutation Regulations, including abolishing the jagirs granted to temples, mosques and other institutions. Consequently, the abolition of the grant for the service of the Dargah is covered by Section 16 of the Abolition Regulation., Mr Ahmadi argued that, as per the Nizam Atiyat order, the land of jagir village Manikonda was found to be Mashrut‑ul‑Khidmat land, i.e., income from the land was to be used for the service of the Dargah, which would be considered Wakf under Muslim law even before 1961 when it was specifically included in the 1954 Act. He further contended that the Endowment Regulations framed in 1940 excluded Mashrut‑ul‑Khidmat land from the operation of the statute as per the definition of endowment in Section 2 of the Act, relying upon Rules 445 and 447 framed under Section 16 of the Endowment Regulations. He also argued that the Abolition Regulation abolished different forms of jagirs but not the jagir which was Mashrut‑ul‑Khidmat land, and therefore the Abolition Regulation would not be applicable to land dedicated to Wakf., The land was mortgaged by Sajjada Safeerullah Hussaini with the permission of the Sovereign in favour of Hasan Bin Muqaddam Jung on 1st Rajab 1296 Hijri (20 June 1879). This shows that the use of land for service of the Dargah was not sacrosanct. After the death of Safeerullah Hussaini in 1303 Hijri (1886‑87), his son Akbar Hussaini applied for the restoration of Maash. The Sovereign issued a Farman on 1st Ramzan 1333 Hijri (13 July 1915) for the release of the mortgaged land, subject to the Sajjada repaying the amount owed to the successor of the mortgagee., It was the Sovereign who granted permission to redeem the land to Akbar Hussaini. The Sovereign was the owner of all lands within his State; the jagirdars were permitted to enjoy the usufruct thereof. Such jagirdars had no right to alienate the property and, after their death, the Sovereign could regrant the same to their heirs, retaining title over the land at all material times., The Shahi Farman dated 1st Ramzan 1333 Hijri (13 July 1915) shows two facts: (1) that the jagir land was mortgaged with Hasan Bin Mohsin, and (2) after his death, the land was under the supervision of the Government. At the time of the death of Sajjada Safeerullah Hussaini, his heirs were minors and the Court of Wards was appointed to manage the estate on their behalf. The Royal Order directed that the Sajjada of the Dargah shall regularly pay the amount to the other shareholders who have the right to receive maintenance allowance required for their upkeep. If inam or inheritance inquiries are required, they shall be conducted as per the rules and regulations. The matter was thereafter taken up by the Nizam Atiyat on the basis of a plaint filed by Akbar Hussaini, son of the late Safeerullah Hussaini, in terms of the Royal Order., Section 16 of the Abolition Regulation specifically abolishes the jagir granted to a temple, mosque or any other institution established for a religious or public purpose. In the present case, the jagir was not granted to a mosque or any institution established for a religious or public purpose; the Sajjada was only permitted to use the usufruct of the village land for the service of the Dargah. If the jagir itself stood abolished under Section 16 of the Abolition Regulation, the usufruct from the land as Mashrut‑ul‑Khidmat was not greater than a jagir granted to a religious or public purpose. Therefore, the land granted as Mashrut‑ul‑Khidmat to the Sajjada for rendering service to the Dargah could be abolished by the Sovereign while enacting the Abolition Regulation., Column 7 of Muntakhab No. 98 describes the property of village Manikonda as a conditional service grant to the Dargah. It does not override statutory provisions. The Muntakhab is a consequential order to the order passed by the Nizam Atiyat. The jurisdiction conferred on the Atiyat Court is confined to the entitlement of persons to the right or interest in Atiyat grants. Consequently, the Muntakhab (decree) does not enlarge the scope of the order, as neither the jurisdiction of the Atiyat Courts under the Enquiries Act nor the Abolition Regulation or the Commutation Regulation permitted the service to the Dargah., The order of the Chief Minister dated 29 May 1956, which is relied upon by Mr Ahmadi, along with the reports of the first and second Taluqdars, are only aids to facilitate the decision by the Nizam Atiyat and are not judicial orders that could be said to be binding. The order of the Nizam Atiyat passed under the Enquiries Act is the relevant authority, not the reports received from the Revenue Authorities to arrive at the decision dated 31 May 1957. The review of the Nizam Atiyat order and the dismissal of the appeal by the Board of Revenue without reasons are relevant only to the extent that such proceedings were initiated but remained unsuccessful. Even the order of the High Court in the writ petition against the order passed by the Board of Revenue is only an affirmation of the order passed by the Nizam Atiyat, though certain observations were made which were not part of the Nizam Atiyat order. Similarly, Muntakhab No. 98 issued by the Nizam Atiyat is only a consequential decree subsequent to the order passed by the Nizam Atiyat on 31 May 1957., The argument that Manikonda village was in the list of exempted jagirs and that in the final order Manikonda and Guntapalli villages were not made subject to the Inams Abolition Act does not appear to be factually correct and, in any case, is of no consequence. Issue No.3 in the order of the Nizam Atiyat was whether Maqdoom Hussaini had any preferential right over the claim of Akbar Hussaini. Maqdoom Hussaini claimed right as self‑purchased property whereas Akbar Hussaini claimed as the successor of the Sajjada. It was held that the property was not self‑acquired by Maqdoom Hussaini and thus the Nizam Atiyat fixed the share of the legal heirs.
id_842	8	One third share of Mashrut-ul-Khidmat was in respect of the jagir villages of Manikonda and Guntapalli, which was to be worked out separately, whereas the rest of the property in other villages was to be considered as Madad Mash and the parties were entitled to their legal shares according to Siham-e-Sharai. The only distinction between Manikonda and Guntapalli villages is that they were jagir villages, while the other villages were Madad Mash. All the properties were subject to the Abolition of Jagirs, Commutation of Regulation and Abolition of Inams Act. Even if there is no mention of the Abolition of Jagir Regulation or Commutation Regulation in the order concerning Manikonda Village, the statute would have preference over an order passed in a proceeding initiated prior to the commencement of the statute framed under the authority of the Sovereign. On the date of the order, the Nazim Atiyat Court had no jurisdiction in respect of jagir villages or payment of inam but only jurisdiction to determine the share of the heirs. Consequently, the decree is only to give effect to determining the share of all the legal heirs, and the order of Nazim Atiyat could not have overriding effect over the Abolition Regulation and Commutation Regulation., The order of the Chief Minister states that Manikonda Village has been handed over to the Government due to abolition of jagir. The order further records that the commutation payable on abolition of jagir is being sent to the dependents of the family of Sajjada and the remainder to the Muslim Wakf Board towards service expenses of the Dargah. Therefore, the land described as a Mashrut-ul-Khidmat stood vested with the State and the commutation amount was paid to the dependents of Sajjada and to the Muslim Wakf Board. The right, title and interest in the jagir land of Manikonda vested with the State by the orders of the Chief Minister, and the commutation amount after abolition of jagir was also ordered to be paid to the dependents of the estate and the Muslim Wakf Board., Although the order of the Chief Minister was mentioned by Nazim Atiyat, it was still held that the land is Mashrut-ul-Khidmat to the Dargah. In terms of the order of the Chief Minister, jagir Manikonda vested with the State. The order of Nazim Atiyat must be read subject to the order of the Chief Minister, who was acting under the Farman issued by the Sovereign. Since that order was that of the Sovereign, the order of the Nazim Atiyat Court, also a creation of the Sovereign, will not be operative to the extent of the order passed by the Sovereign., The order of the Chief Minister shows two things: that the land of Manikonda Village had been handed over to the Government due to abolition of jagirs, and that the commutation amount is being sent to the dependents on the estate as well as to the Muslim Wakf Board. Therefore, the order passed by the Nazim Atiyat is not in accordance with the order passed by the Chief Minister, who was discharging the functions of the Sovereign., The Sovereign, having enacted the Abolition Regulation and the consequent Commutation Regulation, was exercising its right as the owner of the land which at all material times vested with the Sovereign, subject to the usufructuary right of the jagirdar. It was the Sovereign who granted the right to do service to the Dargah. The Sovereign, who had the right to give a jagir village for service, also had the right to take away that right. Therefore, the abolition of jagir by the Abolition Regulation was absolute. In terms of the Jagir Abolition Regulation, the rights in the jagir and of Sajjada as holder of the right to take care of the Dargah stood abolished. The order of Nazim Atiyat was made subject to the Abolition and Commutation Regulations and also the abolition of Inam under the Inams Abolition Act., In Mohd. Habbibuddin Khan, the appellant was a hissedar in the Paigah estate, which was abolished under the Abolition Regulation followed by the Commutation Regulation. The argument raised was that Atiyat Courts had no jurisdiction to hold an investigation into his claim regarding commutation. The Supreme Court of India held that there is no substance in the contentions advanced by the appellant's counsel. There is no reason to limit the jurisdiction of the Atiyat Courts established under the Atiyat Enquiries Act, 1952. They are competent to make Atiyat enquiries as to claims to succession to any right, title or interest in Atiyat grants and matters ancillary thereto. Paragraph 2 of the Statement of Objects and Reasons of Act 28 of 1956, which amended the Atiyat Enquiries Act, 1952, observes that although jagirs have been abolished, cases of inam enquiries in respect of several jagirs are yet to be completed and payment of commutation sum depends on the completion of such enquiries. It is obvious that, in view of the nature of these grants, such enquiries should be held in Atiyat Courts. The Court further held that the questions must be decided for ascertaining the extent of the Paigah for which the appellant claims commutation, and that the matter is to be decided by the special courts, i.e., the Atiyat Courts, which have been set up to enquire into the claims of Jagirdars and Hissedars. Therefore, the appellant should have approached the Atiyat Court., In K.S.B. Ali, the Division Bench of the High Court of Telangana considered a challenge to the tenders called by the Hyderabad Urban Development Authority for the sale of land situated in Kokapet Village. The dispute arose after the death of Nawab Nusrat Jung Bahadur, who was the holder of land measuring 1,635 acres and 34 guntas. The High Court held, under the Enquiries Act, that the power and jurisdiction of the Atiyat Court is confined to making an inquiry into the right, title or interest in the Atiyat grants and to hold an inquiry into the claim to succession arising in respect of such grants. It was also held that all jagir lands vested in Diwani and that the erstwhile jagirdars and hissedars were only entitled to cash grants in whatever name they are called, and there was no question of granting proprietary rights under the Enquiries Act. The Court noted that the definition of Atiyat grants, as amended by the 1956 Amendment Act, specifically restricted the Atiyat grants in case of jagir lands to the commutation sums payable under the 1359 Fasli Regulation, and that extending the definition to include property rights over jagir lands would frustrate the entire scheme and render the provisions of the 1358 and 1359 Fasli Regulations nugatory., The writ appeal was dismissed by the Division Bench. A special leave petition was filed before the Supreme Court of India. Both the special leave petition and the writ petition were withdrawn on 13 December 2007 with liberty to avail an alternative remedy. The alternative remedy availed was the filing of another writ petition. The Special Leave Petition was dismissed on 4 October 2017 against the order passed by the High Court in the second round of litigation., The judgment of the Supreme Court of India reported as Nawab Zain Yar Jung arose out of a writ petition filed by the trustees appointed by the Sovereign, directing the trustees to register the trust under the Endowment Regulations and to render accounts of the same. While the matter was pending, the Muslim Wakf Board, constituted under Section 9 of the Wakf Act, 1954, decided that the trust was a wakf within the meaning of the Wakf Act and steps should be taken for registration of the trust under Section 28 of that Act. The Court considered whether registration of a trust under Section 28 of the Wakf Act was valid. It held that although many provisions of the document are consistent with the view that the document creates a wakf, some clauses are inconsistent with that view, whereas all clauses are consistent with the view that the document creates a public charitable trust. The Court applied the elementary rule of construction that, if two constructions are reasonably possible, the one giving effect to all clauses must be preferred. Consequently, the document was held to create a public charitable trust rather than a wakf., The Court also observed that the clause on which the argument of dedication is based cannot be divorced from the provision that provides charitable purposes without distinction of religion, caste or creed. The settlor's intention was to help charities both within and outside the definition of a wakf, and the clause allowing a substantial part of the income, or even the whole income, to be applied to purposes outside the limits of a wakf demonstrates that the settlor's vision was not confined to the narrow limits prescribed for a valid wakf., Mr. Ahmadi relied upon an order passed by the Chancery Division in the case of Hughes, which considered Section 70 of the Local Government Act, 1894. Hughes was a trustee, and the Charity Commissioner found it desirable that the land should be revalued by a competent valuer vide a letter dated 08 March 1897. The order was for payment of some amount by Hughes. The Supreme Court of India held that the Hughes order has no application whatsoever to the facts of the present case., In Hathija Ammal, the Wakf Board instituted a suit before the Civil Court for declaration that the property is a wakf property, although it was not published as wakf property under Section 5(2) of the Wakf Act, 1954. The Court held that the Wakf Board should have followed the procedure required under Sections 4, 5 and 6 or Section 27 of the Act., In Sri Rama Chandra Murthy, a suit was filed before the Wakf Tribunal for cancellation of a sale deed. The appellant asserted that the property is not a wakf property because it was not notified in the Official Gazette. An application for rejection of the plaint was filed. The Court held that the Wakf Board had not exercised its jurisdiction under Section 27 of the Wakf Act, 1954 or Section 40 of the Wakf Act, 1995, and therefore the averment in the plaint did not disclose a cause of action. The Court explained that the conduct of a survey by the Survey Commissioner, preparation of a report, and forwarding the same to the State or the Wakf Board precedes the final act of notifying the list in the Official Gazette. The Surveyor's Report merges with the Gazette notification, and the High Court could not conclude that the Surveyor's Report would have to be reconsidered., The land dedicated for pious and religious purpose is not immune from vesting with the State. In Khajamian Wakf Estates v. State of Madras, the validity of the Madras Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963, the Madras Lease-holds (Abolition and Conversion into Ryotwari) Act, 1963 and the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 was challenged on the ground that the material provisions violated Articles 14, 19(1)(f) and 31 of the Constitution. The Constitution Bench held that acquiring properties belonging to religious denominations does not violate Article 26(c) and (d), which provide that religious denominations shall have the right to own and acquire movable and immovable property and administer such property in accordance with law. The right of the State to acquire such property remains unaffected; once acquired, the denomination ceases to own and administer the property., In view of the above, the following order is passed: (i) The civil appeals are allowed and the orders passed by the High Court of Telangana are set aside. (ii) The Errata notification dated 13 March 2006 is quashed. The land measuring 1,654 acres and 32 guntas vests with the State and/or Corporation free from any encumbrance. (iii) In terms of Section 10(2)(i) of the Commutation Regulation, 90 percent of the gross basic sum referred to in Section 4 of the Commutation Regulation is payable to the Dargah. The arrears shall be calculated and paid to the Dargah within six months. (iv) No order as to costs., These appeals are on behalf of alleged tenants or pattadars under the jagirdar. It has been asserted that they started paying rent to the State after abolition of jagirs and claim possession of some part of the land now covered by the impugned Errata notification. The arguments raised by the appellants have been incorporated in the main judgment. For the reasons recorded above, the appellants are at liberty to seek remedy for the redressal of their grievances before an appropriate forum in accordance with law. These appeals are accordingly disposed of.
id_844	0	The instant lis presents two questions for consideration by the Supreme Court of India. They are (a) Does clause 4 of the Memorandum of Settlement dated 10th April 2002 create a bar on departmental proceedings continuing when the person subjected thereto is being tried before a criminal court for offences of the same origin? (b) Does acquittal in some of the connected proceedings entail a benefit in the surviving proceedings? Further, does it inure a right upon the delinquent employee of automatic discharge in disciplinary proceedings?, This appeal, by way of special leave, is directed against the final judgement and order dated 7th January 2009 passed in Writ Appeal No. 03/2006 by which the order passed in Writ Petition (Civil) No. 12 of 2005 dated 25th July 2005 allowing the appeal of the Respondent herein against the order of dismissal from bank services dated 28th March 2003 and the rejection of the departmental appeal vide order 16th August 2004, was allowed and the order of the Learned Single Judge confirmed. Background., The facts of the instant dispute as they emanate from the record are as follows. The respondent, namely P. Zadenga, was employed in the State Bank of India as Assistant (CAT) at the Dawrpui Branch, Aizawl. Three government retailers lodged a complaint with the Aizawl Police Station that their challan deposits with the said Branch had not been entered into the cash receipt scroll. The District Civil Supply Officer, Aizawl West, also lodged a complaint that a certain retailer had taken delivery of particular foodstuff using a fake challan. Pursuant thereto, disciplinary proceedings were initiated against the respondent with the issuance of a Memorandum dated 8th December 1999, wherein it was alleged that he had received Rs. 61,908 for a deposit on 19th April 1996 in respect of which a challan was issued, but the amount was never deposited in the respective account. Two other similar occurrences dated 21st February 1995 regarding Rs. 24,640 and Rs. 27,412 were also alleged. Three different First Information Reports were registered against him, under which he was arrested but later released on bail. In his written show‑cause response to this Memorandum, the delinquent employee contended that the disciplinary proceedings should be either dropped or closed since criminal cases were pending against him, arising from the same set of transactions. The appellant bank proceeded to appoint an inquiry officer who, in his report, submitted that three out of four charges stood established. The delinquent employee, again denying the charges, filed a response but was eventually dismissed from the services of the bank by the order of dismissal dated 28th March 2003. The departmental appeal filed by him, after due opportunity of hearing, was dismissed on 16th August 2004., Aggrieved by the dismissal of the departmental appeal, the delinquent employee filed Writ Petition (Civil) No. 12 of 2005 before the Gauhati High Court. The question before the Gauhati High Court was whether, in view of the Memorandum of Settlement dated 10th April 2002, the disciplinary proceedings against the delinquent employee (respondent) ought to have been stayed., Having recorded that post signing of the said Memorandum of Settlement, the Shastri Award as confirmed by the Desai Award ceased to exist for all intents and purposes, the Supreme Court of India observed that clause 4 of the Memorandum of Settlement, between the Management of Class A Banks as represented by the Indian Banks Association and their workmen as represented by the All India Bank Employees Association, National Confederation of Bank Employees, Indian National Bank Employees Federation, was clear and unambiguous and, therefore, it was not correct for the bank to have subjected him to disciplinary proceeding during the pendency of criminal proceedings., However, it would be open for the disciplinary authority to act under the clauses of the Memorandum of Settlement after the criminal cases against the delinquent employee have reached a conclusion, one way or the other., Dissatisfied by the order of the Learned Single Judge, a Writ Appeal was filed bearing No. 03 of 2006. Having discussed the background of the case, the Division Bench discussed the contention on behalf of the bank regarding the applicability of the Shastri Award and observed that the continuation of the disciplinary proceedings during the pendency of criminal cases would be an infraction, given paragraph 521(3) thereof., In conclusion, the Division Bench upheld the order of the Learned Single Judge and confirmed the setting aside of the disciplinary proceedings., We have heard Mr. Vikas Singh, learned senior counsel for the appellant bank, and Mr. Jitendra Bharti for the delinquent employee., Inviting attention to several decisions rendered by the Supreme Court of India, it is argued on behalf of the appellant bank that (i) initiation of departmental proceedings while a criminal trial is pending would not amount to an automatic stay unless, of course, a complicated question of law is involved in the matter; (ii) acquittal in a criminal trial in relation to the very same impugned action would not preclude the employer from initiating departmental proceedings; and (iii) mere non‑compliance of the provisions of the bipartite agreement, in attending facts, would not result in the disciplinary action being void ab initio., On the other hand, it is argued on behalf of the delinquent employee that the disciplinary proceedings, the subject matter of the instant lis, were in gross violation of the bipartite agreement, which has been held to have the force of law. In any case, the respondent stands acquitted in two out of three criminal trials. Also, the action initiated by the employer was belated and an afterthought only to harass the delinquent employee., Before proceeding to the merits of the issue at hand, it would be appropriate to reproduce clause 4 of the Memorandum of Settlement dated 10th April 2002, which is the bone of contention in this dispute. Clause 4 reads as follows: If after steps have been taken to prosecute an employee or get him prosecuted for an offence, he is not put on trial within a year of the commission of the offence, the management may then deal with him as if he had committed an act of gross misconduct or of minor misconduct, as defined below; provided that if the authority which was to start prosecution proceedings refuses to do so or comes to the conclusion that there is no case for prosecution, it shall be open to the management to proceed against the employee under the provisions set out in Clauses 11 and 12 relating to discharge, but he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full wages and allowances and to all other privileges for such period. In the event of the management deciding, after enquiry, not to continue him in service, he shall be liable only for termination with three months’ pay and allowances in lieu of notice as provided in Clause 3 above. If, within the pendency of the proceedings thus instituted, he is put on trial, such proceedings shall be stayed pending the completion of the trial, after which the provisions mentioned in Clause 3 shall apply., In respect of the interpretation of clause 4, we find that the Supreme Court of India observed in State Bank of India & Ors. v. Neelam Nag as follows: (21) In the plain language of Clause 4, in our opinion, it is not a stipulation to prohibit the institution and continuation of disciplinary proceedings, much less indefinitely, merely because of the pendency of a criminal case against the delinquent employee. On the other hand, it is an enabling provision permitting the institution or continuation of disciplinary proceedings, if the employee is not put on trial by the prosecution within one year from the commission of the offence or the prosecution fails to proceed against him for want of any material. (22) As can be culled out from the last sentence of Clause 4, which applies to a case where the criminal case has in fact proceeded, as in this case, for trial, the term “completion of the trial” must be construed as completion of the trial within a reasonable time‑frame. This clause cannot come to the aid of the delinquent employee who has been named as an accused in a criminal case and is party to the prolongation of the trial., Against this backdrop, it is also imperative to look into the position of law regarding two proceedings of similar origin continuing simultaneously. This Court in State of Rajasthan v. B.K. Meena and Others referred to some decisions on the aspect of stay on disciplinary proceedings and observed: It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be desirable, advisable or appropriate to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasized, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. Further, this Court in M. Paul Anthony v. Bharat Gold Mines Ltd. elucidated the following principles in dealing with departmental and criminal proceedings simultaneously: (a) No bar exists on both proceedings continuing simultaneously, though in an appropriate, separate forum. (b) If said proceedings are on identical or similar facts and if the charges levied against the delinquent employee are of a serious nature, then it would be desirable if the departmental proceedings are stayed till the conclusion of the other. (c) The nature of the charge or the involvement of complex questions of law and fact depends on the facts and circumstances of each case, i.e., the offence, nature of the case launched, evidence and material collected. (d) Sole consideration of the above‑mentioned factors cannot be the reason to stay the departmental proceedings. (e) It must be remembered that departmental proceedings cannot be unduly and unjustly delayed. (f) If the criminal proceedings are delayed, the other, having been stayed on account thereof, may be resumed to conclude the same at the earliest. This may result in two possibilities: either the vindication of the position of the delinquent employee or he being found guilty, enabling the department concern to show him out the door. The view taken in M. Paul Anthony was referred to by this Court in Karnataka Power Transmission Corporation Ltd. v. C. Nagaraju., As is evident from the judicial pronouncements referred to above, it may be desirable or, in certain circumstances, advisable for disciplinary proceedings to be stayed when criminal proceedings are ongoing; however, stay is not a matter of course and is only to be given after consideration of all factors, for and against., Keeping in view Neelam Nag, the following essentialities may be culled out for the operation of clause 4: (a) At least one year ought to have passed since attempts to get the delinquent employee prosecuted; (b) If, after the passage of such time, no prosecution is initiated, then the department may proceed in accordance with its procedure for disciplinary action; (c) If the prosecution commences later in point of time to the disciplinary proceedings, the latter shall be stayed, but not indefinitely. Such proceedings are to be stayed only for a reasonable period of time, which is a matter of determination per the circumstances of each case., The next aspect we must consider is whether an acquittal in one of the proceedings entails an acquittal in the other. In Nelson Motis v. Union of India it was observed that the question whether departmental proceedings could have continued in the face of acquittal in criminal proceedings had no force as the nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. In C. Nagaraju it was observed: Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the Prevention of Corruption Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. This observation was quoted with profit in the State of Karnataka v. Umesh., It is a matter of record that concerning the incident(s) in question, the FIR was registered sometime in 1996, and disciplinary proceedings were initiated on 8th December 1999. With the completion thereof in the year 2002 and pursuant to further completion of formalities mandatorily required to be complied with, including the principles of natural justice, the delinquent employee was dismissed from service with the passing of the order dated 28th March 2003., An appeal preferred by the delinquent employee was also dismissed in 2004. It is only after the completion of the entire process of disciplinary proceedings that the delinquent employee, in February 2005, seeking reliance upon clause 4 of the Memorandum of Settlement, filed a writ petition challenging the action, which, to our mind, was a belated attempt, only to forestall its implementation., Repetitive as it may sound, we reiterate the principle of law enunciated in Neelam Nag that the completion of trial must be construed as completion within a reasonable time‑frame and that the clause cannot come to the aid of the employee, more so for prolongation of the trial. In the instant case, the completion of the trial concerning the crime registered in the year 1996 is nowhere nearing completion., As a principle of law, we have already observed that a departmental proceeding pending a criminal trial would not warrant an automatic stay unless, of course, a complicated question of law is involved. Also, acquittal in a criminal case ipso facto would not be tantamount to closure or culmination of proceedings in favour of a delinquent employee., Having perused the delinquent employee’s response to the initiation of inquiry proceedings, most significantly, we notice that no plea of the Memorandum of Settlement was ever taken. No specific plea of postponement of disciplinary proceedings awaiting conclusion of a criminal trial was made., It is seen that the officer neither pleaded nor indicated the prejudice caused to him as a consequence of the initiation of criminal proceedings or simultaneous continuation of both proceedings., Applying all of the above‑noted principles to the facts of the case, we find that neither was it the case of the delinquent employee that the trial to which he was subjected began within one year of the commission of the offence nor does the record speak to this effect. It is in the inquiry report dated 3rd December 2001 that an objection to the disciplinary proceedings being conducted while a criminal case was being tried is registered, but even there, no date is specified., Further, it is not the case of the delinquent employee that the principles of natural justice were not complied with in the disciplinary proceedings of the bank., Both these aspects, taken along with the fact that it is not mandatory to stay the disciplinary proceedings, particularly when they have been initiated after the prescribed period of one year, prevent us from agreeing with the courts below. The restriction within clause 4 is not complete and is to be applied on facts. In such a situation, the Division Bench’s reliance on United Commercial Bank & Others v. P. C. Kakkar is entirely misconceived. Contrary to the conclusion arrived at by the High Court in the Writ Appeal, Kakkar further supports the position of the appellant bank as it states that acquittal in the criminal case is not determinative of the commission of misconduct or otherwise, and it is open to authorities to proceed with the disciplinary proceedings notwithstanding acquittal in the criminal case., Surprisingly, having referred to Kakkar, which takes the above‑mentioned position, the High Court, in the very next paragraph, takes a diametrically opposite view without any reasoning. We may, in fact, refer to Kakkar to reiterate what is expected of persons employed in a bank while also observing that the conduct of the delinquent employee herein flies in the face of these principles. The Court noted: A bank officer is required to exercise higher standards of honesty and integrity. He deals with the money of the depositors and the customers. Every officer or employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer or employee of the bank. The very discipline of an organization, more particularly a bank, is dependent upon each of its officers acting within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is misconduct., Given the foregoing discussion and in the light of judicial pronouncements discussed above, the appeal succeeds. We set aside the judgment and order dated 7th January 2009 passed in Writ Appeal No. 03/2006, and consequentially, the order passed in Writ Petition (Civil) No. 12 of 2005 dated 25th July 2005., The questions presented in this appeal are answered as follows: (1) Clause 4 of the Memorandum of Settlement dated 10th April 2002 does not envisage a complete standstill of departmental proceedings as a result of the pendency of criminal proceedings. The position of law is that the stay of the latter is desirable, but the same is to be effected only for a reasonable period of time. (2) The nature of proceedings being wholly separate and distinct, acquittal in criminal proceedings does not entitle the delinquent employee to any benefit in the latter or automatic discharge in departmental proceedings., Consequently, Mr. P. Zadenga’s dismissal from service as per the Memorandum dated 28th March 2003 (Departmental Proceeding Sheet No. 2003/02) is restored., Interlocutory applications, if any, stand disposed of., Parties to bear their own costs.
id_845	0	Reserved on: 06.02.2024 Pronounced on: 19.02.2024 Argued by: Mr. Rajesh Lamba, Advocate, for the petitioner (in CRM-M-36154-2023) and for respondent No.2 (in CRM-M-44425-2023); Ms. Indira Jai Singh, Senior Advocate (through Video Conferencing) with Mr. Ganesh Sharma, Mr. Rohin Bhatt, Mr. Abhijeet Sharma, Advocates, for the petitioners (CRM-M-44425-2023) and for respondent No.2 (in CRM-M-36154-2023); Mr. Randhir Singh, Additional Advocate General, Haryana, for respondent No.1; Mr. ADS Sukhija, Advocate (Amicus Curiae)., This order shall dispose of two petitions titled above, as both have arisen out of the same proceedings pending in the Additional Sessions Judge (Fast Track Court), Faridabad (Special Court constituted to dispose of matters pertaining to the Protection of Children from Sexual Offences Act, 2012) (hereinafter the POCSO Act)., The matter pertains to a very unfortunate incident. A, a minor child aged about 16 years, student of 10th class in Delhi Public School, Greater Faridabad, Sector 81, Faridabad, committed suicide on 24.02.2022, leaving behind a suicide note blaming the school authorities. Axx (Petitioner in CRM-M-44425-2023 and Respondent No.2 in CRM-M-36154-2023) is the mother of the deceased child; Smt. Surjeet Khanna (Petitioner in CRM-M-36154-2023 and Respondent No.2 in CRM-M-44425-2023) is the Principal of the school., The mother, Axx, lodged FIR No. 64 dated 25.02.2022 at BPTP Police Station, District Faridabad, under Section 306 of the Indian Penal Code and Sections 6, 8, 18 and 21 of the POCSO Act. It was alleged that around one year prior to the suicide, boys in the school used to tease the child by calling him gay and misbehaving with him. A complaint was made to the school management but no action was taken, leading to the child's depression. On 23.02.2022, the child had to write a science examination but, suffering from dyslexia, was unable to solve numerical questions. When he sought help from the Headmistress Mamta Gupta, she scolded him, further depressing him, and he committed suicide on 24.02.2022, leaving a suicide note. The mother prayed for action against the Delhi Public School management, and the FIR was accordingly lodged., The Principal, Mrs. Surjeet Khanna, approached this court and prayed for quashing of the FIR by filing CRM-M-4079 of 2023, but the petition was dismissed on 14.07.2023., On 18.07.2023, four days after the dismissal of the quashing petition, the matter was fixed before the Special Court for charge consideration. The Principal moved an application (Annexure P3) for taking cognizance against Axx, the mother, under Section 21 of the POCSO Act. It was contended that the Principal was made an accused under Section 21 only because she had failed to report the commission of the offence to the police, despite an email sent to her on 23.09.2021 by the mother. The applicant submitted that the mother herself was aware of the offences under the POCSO Act and therefore is equally responsible for not reporting the matter to the police, as required under Section 19 of the POCSO Act, punishable under Section 21. Accordingly, it was prayed that the mother be also summoned as an accused to face trial under Section 21. The Principal also referred to various emails from 11.07.2018 to 18.12.2021 showing communication between the mother and the school authorities., On receiving the application on 18.07.2023, the Additional Sessions Judge, Fast Track Court, Faridabad, passed the following order: Present: Shri Pratap Singh, learned Special Public Prosecutor for the State, assisted by the complainant in person along with Shri Tejasva Mehra, Advocate for the complainant. Accused Mamta Gupta and Surjeet Khanna are on bail, represented by Shri Deepak Gera, Advocate. The case was fixed for framing of charge against the accused. However, an application was filed for taking cognizance against the complainant. Learned counsel for the accused contended that no notice of the application could be given and the complainant/proposed accused could not be heard. The proposed accused in the present application is the complainant who is represented through counsel. The Court found no merit in the contentions of the learned counsel for the accused. By way of the present application, the accused wants the complainant herself, who is the mother of the victim, to be tried as an accused. In these circumstances, this Court is of the considered opinion that the complainant/proposed accused has a right to be heard. Moreover, under Section 40 of the POCSO Act, the family of the victim is entitled to legal counsel of their choice. The matter was ordered to be listed on 26.07.2023 for filing reply and consideration of the application, and arguments on charge would also be heard on the date fixed., Date of Order: 18.07.2023 (Hem Raj Mittal) Parveen Lakhina, Additional Sessions Judge, Fast Track Court, Faridabad. Both parties feel aggrieved by the aforesaid order and have approached this Court by filing the present two petitions., The mother, Axx, filed CRM-M-44425-2023 praying to quash the application moved by the Principal on 18.07.2023 for summoning the petitioner-Axx; whereas the Principal, Mrs. Surjeet Khanna, filed CRM-M-36154-2023 to quash the order dated 18.07.2023, whereby notice was issued to the proposed accused, mother Axx., Ms. Indira Jai Singh, learned Senior Advocate appearing for the mother, contends that the application by the Principal was moved with mala fide intention immediately after the dismissal of CRM-M-4079-2023 on 14.07.2023. It is further contended that the mother, who is proposed to be summoned as an accused, is herself the victim and her summoning cannot be sought. The senior counsel further states that the mother was also a teacher in the same school and, as per the Child Protection Policy of the school, she sent an email dated 23.09.2021 to the school authorities, including the Principal, detailing all crimes being committed against the child, including harassment, bullying and torture. It was contended that once the school authorities were duly informed as per the guidelines under the Child Protection Policy, it was for the school authorities to inform the police as per Section 21 of the POCSO Act., Mr. Amitabh Tewari, appearing on behalf of the Principal, contends that Section 21 of the POCSO Act is applicable to any person who fails to report the commission of an offence, irrespective of whether the person who has knowledge of the offence is the mother of the victim or anyone else. He further submits that dismissal of the quashing petition bearing CRM-M-4079-2023 does not bar the petitioner from exercising her legal right, and since the Principal is being prosecuted for not reporting the matter to the police despite knowledge of the alleged offences, the mother is equally responsible., In reply, the mother’s counsel contends that the petition is premature as no order has been passed on the application dated 18.07.2023. He further contends that the impugned order dated 18.07.2023 passed by the Special Court is bad in law as no notice was required to be served to the proposed accused, as there is no such requirement under the law., I have considered the submissions of both sides and appraised the record., The Protection of Children from Sexual Offences Act, 2012 was enacted to protect children from offences of sexual assault, sexual harassment and pornography and to provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. Chapter II (Sections 3 to 12) provides punishment for various sexual offences against children including penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated sexual assault and sexual harassment. Chapter III (Sections 13 to 15) provides punishment for using a child for pornographic purposes or for storage of pornographic material involving a child. Chapter IV (Sections 16 to 18) provides for punishment for abetment of and attempt to commit an offence under the Act. Chapter V (Sections 19 to 23) provides the procedure for reporting cases and the punishment for failure to report or record a case., Section 19. Reporting of offences – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, any person (including the child) who has apprehension that an offence under this Act is likely to be committed or has knowledge that such offence has been committed shall provide such information to (a) the Special Juvenile Police Unit; or (b) the local police. (2) Every report given under sub‑section (1) shall be (a) ascribed an entry number and recorded in writing; (b) read over to the informant; (c) entered in a book kept by the Police Unit. (3) Where the report under sub‑section (1) is given by a child, it shall be recorded in simple language so that the child understands the contents. (4) If the contents are recorded in a language not understood by the child, a translator or interpreter shall be provided. (5) Where the Special Juvenile Police Unit or local police is satisfied that the child is in need of care and protection, it shall, after recording the reasons in writing, make immediate arrangement to give care and protection, including admitting the child into a shelter home or the nearest hospital within twenty‑four hours. (6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but within twenty‑four hours, report the matter to the Child Welfare Committee and the Special Court or, where no Special Court has been designated, to the Court of Session, including the need of the child for care and protection and steps taken. (7) No person shall incur any liability, civil or criminal, for giving the information in good faith for the purpose of sub‑section (1)., Section 21. Punishment for failure to report or record a case – (1) Any person who fails to report the commission of an offence under sub‑section (1) of Section 19 or Section 20, or who fails to record such offence under sub‑section (2) of Section 19 shall be punished with imprisonment which may extend to six months or with fine or with both. (2) Any person, being in charge of any company or institution, who fails to report the commission of an offence under sub‑section (1) of Section 19 in respect of a subordinate under his control, shall be punished with imprisonment which may extend to one year and with fine. (3) The provisions of sub‑section (1) shall not apply to a child under this Act., As evident from the above provisions, any person having apprehension that an offence under this Act is likely to be committed or who has knowledge that such offence has been committed is obliged to inform either the Special Juvenile Police Unit or the local police. The word ‘shall’ in Section 19(1) makes the intention of the legislature clear that the duty is mandatory. Section 21 provides punishment for failure to report or record a case., The email dated 23.09.2021 (Annexure R‑2/7 in CRM‑M‑44425 of 2023), on which the mother relied to contend that she had informed the school authorities about bullying and sexual harassment of the deceased child, makes it clear that the mother had knowledge about the commission of offences covered under the POCSO Act prior to informing the school. Prima facie, the mother was mandatorily required to inform the local police or the Special Juvenile Police Unit as per Section 19., The contention that the mother performed her duty by informing the school authorities as per the Child Protection Policy does not merit consideration, as statutory provision overrides the policy. Consequently, the petition filed by the mother to quash the application does not contain merit., Besides, the petition is premature as no order has been passed on the application moved by the accused Principal on 18.07.2023 has been passed by the Special Judge., Having regard to the provisions of Section 19 read with Section 21, though the application moved by the Principal is not per se bad, the Court must decide whether to summon the mother as a proposed accused, considering that the application cannot be said to be moved under Section 319 of the Code of Criminal Procedure nor under Section 190 read with Section 193. At most, the application may be treated as under Section 33 of the POCSO Act, as there is a clear distinction between the scope of Sections 319 and 193 of the CrPC and Section 33 of the POCSO Act., Section 193 CrPC: Cognizance of offences by Courts of Session – Except as otherwise expressly provided by this Code or any other law, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code., Section 319 CrPC: Power to proceed against other persons appearing to be guilty of offence – (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed an offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed., Section 33 POCSO Act: Procedure and powers of Special Court – (1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts constituting such offence, or upon a police report of such facts., Bare perusal of Section 193 CrPC reveals that a Court of Session can take cognizance only after the case is committed by the Magistrate. In Kishun Singh and others v. State of Bihar (1993) 2 SCC 16, the Supreme Court held that a Court of Session, to which a case is committed for trial by a Magistrate, can, without recording evidence itself, summon a person not named in the police report under Section 173 CrPC (though named in the FIR) to stand trial along with those already named, as such power is under Section 193 of the Code and not under Section 319., There was conflicting opinion regarding the scope of power of the Court of Session under Section 193 CrPC in different decisions of the Supreme Court. The matter was ultimately considered by the Constitutional Bench in Dharam Pal & Ors. v. State of Haryana and another (2014) 3 SCC 306, where the Court held that the Sessions Court, on committal of a case under Section 209, may summon persons shown in column 2 of the police report to stand trial even without recording evidence., The same view was taken by another Constitutional Bench in Hardeep Singh v. State of Punjab & Ors., (2014) 3 SCC 92., In view of the authoritative pronouncements, the legal position is clear that the Court of Session has power under Section 193 CrPC to summon a person as accused to stand trial even if he has not been challaned by the police but was named in the FIR and whose complicity appears from the evidence on record., The issue regarding the scope and extent of power of the court to arraign any person as an accused during the course of inquiry or trial under Section 319 CrPC has been settled by a Constitutional Bench in Hardeep Singh’s case, followed by another pronouncement in Babubhai Bhimabhai Bokhiria v. State of Gujarat and others, (2014) 5 SCC 568., After reviewing various precedents, the Apex Court summarized: ‘Power under Section 319 CrPC is discretionary and extraordinary. It is to be exercised sparingly and only where the circumstances so warrant. It is not to be exercised merely because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty. Only where strong and cogent evidence occurs against a person from the evidence led before the court should such power be exercised… The test is more than a prima facie case but short of satisfaction that unrebutted evidence would lead to conviction.’, In Babubhai Bhimabhai Bokhiria’s case, the Court observed that Section 319 confers power on the trial court to find out whether a person who ought to have been added as an accused has been omitted, and that the satisfaction must be arrived at on the basis of evidence led during the trial, with a higher degree of satisfaction than that required for taking cognizance., Thus, Section 193 CrPC applies when the Sessions Court, to which a case has been committed, is required to consider whether to take cognizance against an accused who, though named in the FIR, has not been challaned by the police, despite sufficient material in the evidence. Section 319 CrPC becomes applicable during trial after filing of the charge‑sheet when evidence indicates involvement of a person not initially charged., Section 33 of the POCSO Act provides that a Special Court may take cognizance of any offence without the accused being committed to it, upon receiving a complaint of facts constituting the offence or a police report., In the present case, it is to be considered whether the final report under Section 173 CrPC submitted by the police to prosecute the challaned accused (including the Principal) contains material against the proposed accused, mother Axx, to prosecute her in the same trial, and whether the emails between the mother and the school authorities form part of that final report. This is for the Special Court to decide., In the aforesaid circumstances, this Court finds the petition CRM‑M‑44425‑2023 moved by the mother to be premature and hereby dismisses it., Regarding the petition CRM‑M‑36154‑2023 filed by the Principal, the contention that there is no procedure to serve notice upon the proposed accused under Section 319 CrPC, Section 193 CrPC or Section 33 POCSO Act is not accepted. Every case has its own facts and circumstances which may compel the Court to adopt a procedure not barred by law. Although Sections 33 POCSO Act and Section 193 CrPC do not expressly provide for serving notice to the proposed accused, there is no bar to doing so in the facts of this case. The proposed accused, mother Axx, is the complainant of the FIR and also the victim. As evident from the order dated 18.07.2023, the proposed accused was present in Court with counsel when the application was moved., In these facts and circumstances, if the Special Court was of the view that the mother, being the victim, should be heard before deciding the application, this is not an illegality or irregularity. No decision has yet been taken on the application; only notice has been served upon the proposed accused. The Court still has to decide the application by applying its judicious mind. Consequently, this Court finds no merit in the petition filed by the Principal. Accordingly, both petitions are dismissed. A photocopy of this order shall be placed on the file of the other connected case. Dated 19.02.2024., Neutral Citation No.: 2024:PHHC:023005. Speaking/reasoned: Yes. Reportable: Yes.
id_846	0	Re: Proposal for transfer of Mister Justice Nani Tagia, Judge, Gauhati High Court. On 23 August 2023, the Collegium proposed the transfer of Mister Justice Nani Tagia, Judge, Gauhati High Court to the High Court of Judicature at Patna, for better administration of justice. In terms of the Memorandum of Procedure, we have consulted Judges of the Supreme Court who, being conversant with the affairs of the Gauhati High Court, are in a position to offer views on the proposed transfer. We have also consulted the Chief Justice of the Gauhati High Court and the Chief Justice of the High Court of Judicature at Patna., By a communication dated 24 August 2023, Mister Justice Nani Tagia has requested that he may be allowed to remain at any of the Benches of the Gauhati High Court or be transferred to the High Court of Tripura. We have considered the request made by Mister Justice Nani Tagia. The Collegium does not find any merit in the request made by him. The Collegium, therefore, resolves to reiterate its recommendation dated 23 August 2023 to transfer Mister Justice Nani Tagia to the High Court of Judicature at Patna.
id_848	0	Petition for Special Leave to Appeal (C) No. 22733/2022 arising out of the impugned final judgment and order dated 14-11-2022 in Writ Petition No. 12238/2021 passed by the High Court of Madhya Pradesh, Principal Seat at Jabalpur, dated 03-01-2023. The petition was called on for hearing today., For the petitioners: Mr. Tushar Mehta, Solicitor General; Mr. Saurabh Mishra, Additional Advocate General; Mr. Bharat Singh, Additional Advocate General; Mr. Sunny Choudhary, Advocate on Record; Mr. Abhimanyu Singh, Advocate; Ms. Indira Bhakar, Advocate; Mr. Sandeep Sharma, Advocate. For the respondents: (no counsel mentioned)., Shri Tushar Mehta, learned Solicitor General of India, explained the provisions of Section 10 of the Madhya Pradesh Freedom of Religion Act, 2021 (Madhya Pradesh Act No. 5 of 2021). Section 10 provides that any person who desires to convert shall submit a declaration to that effect sixty days prior to such conversion in the prescribed form to the District Magistrate, stating that the conversion is on his own free will and without any force, coercion, undue influence or allurement. Any religious priest or any person who intends to organise a conversion shall give sixty days prior notice to the District Magistrate of the district where the conversion is proposed, in the prescribed form. The District Magistrate, on receiving the information under sub‑section (1) and (2), shall acknowledge such prior notice in the manner prescribed. Whoever contravenes the provision of sub‑section (2) shall be punished with imprisonment for a term not less than three years, which may extend to five years, and shall also be liable to a fine not less than fifty thousand rupees. No Supreme Court of India shall take cognizance of the offence committed under this section without prior sanction of the concerned District Magistrate., He also referred to the earlier legislation, the Madhya Pradesh Dharma Swatantrya Adhiniyam 1968 (Act No. 27 of 1968), particularly Section 5, which provides that whoever converts any person from one religious faith to another, either by performing the ceremony himself as a religious priest or by taking part directly or indirectly in such ceremony, shall, within the period prescribed after the ceremony, send an intimation to the District Magistrate of the district in which the ceremony took place, stating the fact of such conversion in the prescribed form. If any person fails, without sufficient cause, to comply with the provisions of sub‑section (1), he shall be punishable with imprisonment which may extend to one year or with a fine which may extend to one thousand rupees, or with both., It is submitted that the vires and constitutional validity of Section 5 of the 1968 Act were challenged before the Supreme Court of India, and the Constitution Bench, in the reported decision Rev. Stainislaus vs. State of Madhya Pradesh and Others, (1977) 1 SCC 677, upheld the constitutionality of the earlier legislation, particularly Section 5 of the 1968 Act. Accordingly, Section 5 of the 1968 Act is pari materia and similar to Section 10(2) of the 2021 Act., It is further submitted by Shri Mehta, learned Solicitor General, that for Section 10(1) of the 2021 Act, any person who desires to convert to another religion is required to submit a declaration to that effect sixty days prior to such conversion in the prescribed form to the District Magistrate, stating that the conversion is on his or her own free will and without any force, coercion, undue influence or allurement. It is submitted that no penal consequence is provided for contravention of sub‑section (1); penal consequences are provided only for contravention of sub‑section (2) under Section 10(4) of the 2021 Act., It is submitted that, in view of the Constitution Bench decision in Rev. Stainislaus, upholding the vires of Section 5 of the 1968 Act which is pari materia to Section 10(2) of the 2021 Act, the High Court has seriously erred in staying Section 10 of the 2021 Act. Considering the larger public interest for which the 2021 Act was enacted to safeguard against unlawful and illegal conversions by coercion, undue influence or allurement, it is prayed that the order of stay granted by the High Court be set aside., Considering the aforesaid aspects and the greater public importance of the issue, notice is issued on the Special Leave Petition as well as on the prayer for interim relief, returnable on 07-02-2023. Dasti, in addition, is permitted. The original writ petitioner shall be served within a period of one week from today. Any counter‑statement, if any, must be filed on or before the next date of hearing.
id_850	0	Writ Petition (Miscellaneous) No.14481 of 2020 (Special Original Jurisdiction) filed on Monday, the second day of November 2020, praying that, in the circumstances stated therein and in the affidavit filed therewith, the Madras High Court may be pleased to issue a writ of mandamus or any other appropriate writ or direction directing the respondent to consider the petitioner's representation dated 10 October 2020., Order: This petition came up for orders. Upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr. A. P. Suryaprakasham, party-in-person, and of Mr. Vijay Narayan, Advocate General, assisted by Mrs. J. Padmavathi Devi, Special Government Pleader for respondents 1 to 4 and 8 to 10, and of Mrs. Victoria Gowri, Assistant Solicitor General for respondents 5 to 7, the Madras High Court made the following order (order made by Justice N. Kirubakaran)., The second respondent, Managing Director of Tamil Nadu Civil Supplies Corporation, has filed a counter affidavit as well as a report dated 27 October 2020., Mr. Vijay Narayan, learned Advocate General, assisted by Mrs. J. Padmavathi Devi, learned Special Government Pleader, appeared on behalf of the respondents., Mr. A. P. Suryaprakasham, petitioner and party-in-person, submitted that there are contradictions between the report and the counter affidavit filed by the second respondent., In paragraph 8 of the counter affidavit, it is stated that irrespective of the moisture content, whether the paddy contains 17% moisture or not, the procurement centres have been directed to procure the paddy from the agriculturists. However, the report states that procurement is done only after the moisture is dried and falls below 17%. This appears to be a contradiction between the report and the counter affidavit., Paragraph 10 of the counter affidavit reads: \I further submit that the allegation that officials are demanding Rs.30 to 40 per bag for procurement of paddy is absolutely false. Six special teams have been formed and they conduct regular and surprise inspections in the Direct Purchase Centres. During the last KMS season which ended on 30 September 2020, 1,725 inspections have been conducted and action has been taken against 105 officials who have been found guilty during the inspection. Hence, the allegations that the State Government and the corporation are not taking proper steps in curbing the alleged malpractices and shortcomings are not correct.\, The first sentence in paragraph 10 of the counter affidavit states that no corrupt practice is taking place in the procurement centres. However, the second sentence indicates that 1,725 inspections have been conducted and 105 officials have been found guilty. Moreover, the affidavit does not provide details on the basis for deeming the officials guilty, i.e., the specific illegalities or irregularities committed by them are not disclosed., Therefore, the second respondent, Managing Director, is directed to file an additional affidavit addressing the contradictions pointed out above and to furnish details of (i) the acts committed by officials found negligent or guilty; (ii) the action taken against the delinquent officials, both departmental and criminal; and (iii) the amount of unaccounted money that has been found and seized from the delinquent officials., Since the matter relates to agricultural products, the Madras High Court suo motu impleads the Secretary to Government, Department of Agriculture, State of Tamil Nadu, Secretariat, Chennai, as the fourth respondent to these proceedings., Mr. Vijay Narayan, learned Advocate General, takes notice of the newly impleaded fourth respondent, who shall file a report on the steps and actions taken by the Government based on the report of Thiru M. S. Swaminathan, architect of the Green Revolution in India., It is reported in the media, especially visual media, that during inspections in the procurement centres large sums of money have been seized. Recently a raid was conducted at the Pullarambakkam Procurement Centre, Tiruvallur District, where a sum of Rs.2,00,000 was seized from officials. These raids and seizures support the petitioner's contention that officials are demanding a bribe of Rs.30 to Rs.40 per bag from agriculturists bringing their produce to the procurement centre., Though the learned Advocate General referred to the prevailing Prevention of Corruption Act and its procedures, the menace of corruption has not diminished. The Prevention of Corruption Act is a Central Act enacted in 1947, amended several times, most recently in 2018, providing elaborate procedures, punishments and penalties. Corruption has become deep‑rooted and spreads like cancer. Media reports daily that many officials are caught red‑handed taking bribes. Hence, the punishment needs to be enhanced. The Madras High Court is of the view that the Act should be revisited, strengthened and stringent penalties imposed to curb corruption. The Central Government may consider imposing punishments such as hanging or the death penalty for corrupt practices or for demanding and accepting bribes, as is done in China, North Korea, Indonesia, Thailand and Morocco. Accordingly, the Madras High Court suo motu impleads (i) the Secretary to Government, Ministry of Home Affairs, Union of India, North Block, New Delhi; (ii) the Secretary to Government, Ministry of Law and Justice, Union of India, Shastri Bhawan, New Delhi; and (iii) the Secretary to Government, Ministry of Parliamentary Affairs, Union of India, Parliament House, New Delhi as respondents 5 to 7 to these proceedings., Mrs. Victoria Gowri, learned Assistant Solicitor General of India, takes notice of the newly impleaded respondents 5 to 7., At this juncture, the Madras High Court refers to an order passed by Hon'ble Justice Thiru (2016) dated 30 September 2020, wherein the report of the Administrative Reforms Committee headed by Dr. Justice A. K. Rajan (Retired Judge of Madras High Court) dated 25 April 2008 was referred to. The committee was constituted by the Government vide G.O. Ms. No.65, Personnel and Administrative Reforms (AR‑I) Department, dated 9 March 2007, to ensure corruption‑free and transparent administration. Based on the committee's report, the Government accepted certain recommendations and issued Government Order No.24, Personnel and Administrative Reforms (AR‑I) Department, dated 17 February 2010., One of the accepted recommendations is the delegation of powers and fixing of accountability on every government servant at every stage and level. All Secretaries to Government and Heads of Department were directed to issue necessary orders fixing accountability while delegating powers. The Madras High Court seeks to know the further action taken by the Government in this regard. Accordingly, the Court suo motu impleads (i) the Chief Secretary to Government, State of Tamil Nadu, Fort St. George, Chennai; (ii) the Vigilance Commissioner, Personnel and Administrative Reforms Department, State of Tamil Nadu, Fort St. George, Chennai; and (iii) the Director, Directorate of Vigilance and Anti‑Corruption, No.293, MKN Road, Alandur, Chennai as respondents 8 to 10 to these proceedings., Mr. Vijay Narayan, learned Advocate General, accepts notice on behalf of the newly impleaded respondents 8 to 10., Call on 9 November 2020, along with Writ Petition (Miscellaneous) No.7833 of 2020 and Criminal Revision (Miscellaneous) No.599 of 2016, for the response affidavits of the respondents. Sub‑Assistant Registrar (C.S.), Madurai Bench of Madras High Court, Madurai – 625 023.
id_851	0	Reportable Writ Petition (Civil) No. 1011 of 2022: Supriyo @ Supriya Chakraborty and others, Petitioners, versus Union of India, Respondent., Dr Dhananjaya Y. Chandrachud, Chief Justice of India., Section 377 of the Indian Penal Code criminalizes carnal intercourse against the order of nature. History is replete with instances of the State having used the provision to rip off the dignity and autonomy of individuals who engaged in sexual activity with persons of the same sex. A colonial provision which reflected Victorian morality continued in the statute after Independence. Section 377 was also weaponized against gender non-conforming persons. Intimate relationships and activities were subject to public ridicule and judicial scrutiny. By criminalising sexual behaviour of homosexual and gender non-conforming persons, the State stripped them of their identity and personhood. Those who defied the mandate of the law and dodged prosecution were socially ostracised., In Naz Foundation v. Government of NCT of Delhi, a Division Bench of the High Court of Delhi read down Section 377 of the Indian Penal Code to exclude consensual homosexual sexual activity between adults. On appeal, a two‑Judge Bench of the Supreme Court of India in Suresh Kumar Koushal v. Naz Foundation reversed the judgment of the High Court of Delhi. A writ petition seeking to declare the right to sexuality, the right to sexual autonomy, and the right to choice of a sexual partner as part of the rights guaranteed under Article 21 of the Constitution and to declare Section 377 unconstitutional was listed before a three‑Judge Bench of the Supreme Court of India. The petitioners argued that the matter must be referred to a five‑Judge Bench in view of the decisions of the Supreme Court of India in National Legal Services Authority v. Union of India and Justice K. S. Puttaswamy (J) v. Union of India., In National Legal Services Authority v. Union of India, the Supreme Court of India held that the State must recognise persons who fall outside the male‑female binary as third gender persons and that they are entitled to all constitutionally guaranteed rights. It also directed the Union and State Governments to grant legal recognition to the self‑identified gender of transgender persons, including when they identify as male or female. In Justice K. S. Puttaswamy (J) v. Union of India, the Supreme Court of India held that the Constitution protects the right of a person to exercise their sexual orientation., The Supreme Court of India, in Navtej Singh Johar v. Union of India, held that Section 377 is unconstitutional to the extent that it criminalises consensual sexual activities by the LGBTQIA+ community. The Court held that Section 377 violated Article 14 because it discriminated between heterosexual persons and non‑heterosexual persons, although both groups engage in consensual sexual activities; that a classification based on an intrinsic and core trait such as sexual orientation is not reasonable; that Article 15 prohibits discrimination based on sex, which includes sexual orientation, and that Section 377 indirectly discriminated between heterosexual persons and the LGBTQIA+ community; and that Section 377 violated Article 19(1)(a) because it inhibited sexual privacy., Justice D. Y. Chandrachud observed that the right to sexual privacy also captures the right of the LGBTQIA+ community to navigate public places free from State interference. The community does not face discrimination merely based on their private sexual activities; it extends to their identity, expression, and existence. The Supreme Court of India declared that members of the LGBTQIA+ community are entitled to the full range of constitutional rights including the right to choose a partner, the ability to find fulfilment in sexual intimacies, the benefit of equal citizenship, and the right not to be subject to discriminatory behaviour., Despite the de‑criminalisation of queer relationships and the broad sweep of the decision in Navtej, members of the queer community still face violence and oppression, contempt, and ridicule in various forms, subtle and overt, every single day. The State, which has the responsibility to identify and end the various forms of discrimination faced by the queer community, has done little to emancipate the community from the shackles of oppression. The ghost of Section 377 lives on in spite of the decriminalisation of the sexual offence and the recognition of the rights of queer persons in Navtej., Section 377 imposed social morality on homosexual relationships. The legal regime acted as a chariot that propelled social norms on love and unions. The impact of Section 377 on society must be viewed in terms of its effect on the social conceptions of love and companionship. Section 377 enforced morality through law by shaping beliefs about queer identity. This far‑reaching impact of the legal regime is one of the primary reasons for the continuing, widespread revulsion against the LGBTQIA+ community even after homosexual sexual acts have been decriminalised. The lack of sensitisation and the ensuing discrimination has pushed members of the community into the proverbial closet. For many members of the LGBTQIA+ community, expressing their sexual orientation and gender identity is an act of defiance which requires strength and courage. The ostracism extends across the full range of social values, from parenting to public office., The LGBTQIA+ community also faces discrimination in the public space because of the lack of accommodation for persons who do not conform to the gender binary. All the services provided by the State, including public washrooms, security checkpoints, and ticket counters at railway stations and bus depots, are segregated based on a strict gender binary. Transwomen have recounted experiences of being asked to shift to the men’s queue in security checkpoints. Although they identify with the female gender, they are forced to accept a third party’s assessment of their gender as being male. Misgendering a person can have deleterious effects on their mental health and negatively impact their ability to function in the world., Places of education and employment are also not spaces where gender identity and sexual orientation may be expressed without discriminatory attitudes. Members of the queer community may be forced to quit their education or their job if they face oppression in these spaces, denying them equal opportunity. In professional environments, members of the queer community may face various forms of discrimination ranging from being denied opportunities to secure jobs, to not being invited to office gatherings, to being passed over for promotions. A human rights organization interviewed 3,619 transgender persons, of whom only 12 % were employed, with half of them earning less than Rs 5,000 per month. The significant percentage of unemployment in the transgender community is not because transgender persons do not wish to work, but because employers are unwilling to employ them due to their gender non‑conformity., The biological family is often the first site of violence and oppression for the queer community. It begins with family members rejecting the gender identities of their transgender children or consenting to gender‑normalising surgeries for their intersex children without giving the child an opportunity to choose for themselves. At a very young age, they face familial rejection. Instead of being nurtured with love and affection, they face contempt because of their identity, which makes them vulnerable and inexpressive. Some homosexual persons are forced by their natal families to marry a person of the opposite sex once their sexual orientation becomes known. Women have recounted fearing to disclose their sexual orientation to their families because they were worried that the families would stop them from going to school. After disclosure, some women reported that their movements were constantly monitored and that their phones were traced with the assistance of the Station House Officer. Families also consider a queer person’s desire for gender expression to be a mental illness requiring cure. Some queer individuals have been forced to undergo conversion therapy involving electroconvulsive shocks. Others have recounted harrowing experiences in rehabilitation centres where privacy was non‑existent and they were subjected to demeaning treatment., The transgender community is also discriminated against in the healthcare sector, where administrative formalities are not gender‑inclusive and there is a lack of knowledge about gender‑related diseases. The community also faces discrimination in the housing sector; studies have shown that it is very difficult for members of the queer community to rent a house. Some members have shifted houses twice in four years because neighbours assumed they were holding parties and causing disturbances., Instruments of the State that are tasked with protecting human rights often perpetuate violence. Police and prison officials exhibit violence towards the queer community. Research conducted by the National Institute of Epidemiology involving around 60,000 transgender participants revealed that law‑enforcement agencies are the largest perpetrators of violence against the transgender community. A trans‑woman lodged in a prison housing two thousand male inmates recounted that male prisoners sexually assaulted and mentally harassed her. Lesbian and gay couples often approach the police for protection from family violence, but instead of granting protection, the police hand over the couple to their families. In some cases, the police colluded with the family despite court orders granting protection to a queer couple., The Supreme Court of India in National Legal Services Authority (supra) declared that the transgender community must not be subsumed within the gender binary and must be treated as a third gender in the eyes of the law. The Court also directed the Central and State governments to take steps to address the stigma and oppression faced by the community and to create public awareness about their struggles. Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019 to protect the rights of the transgender community and provide welfare measures for their betterment. Despite the decision of the Supreme Court of India in NALSA and the provisions of the Transgender Persons Act, members of the transgender community continue to be denied equal citizenship. They face immense physical and sexual violence, are often forced to undergo sex reassignment surgeries before their rights as transgender persons are recognised, and are frequently subjected to hate speech. Stereotypes about the community are also reinforced in the media., The petitioners, who are members of the LGBTQIA+ community, claim that they are discriminated against at a formal and visible level because the State, through the operation of the current legal regime, implicitly excludes the queer community from the civic institution of marriage. They have invoked the equality code of the Constitution to seek legal recognition of their relationship with their partner in the form of marriage. The petitioners do not seek exclusive benefits unavailable to heterosexuals; they claim that the State ought to treat them on par with the heterosexual community., Mr. Mukul Rohatgi, learned senior counsel, submitted that the Supreme Court of India's existing jurisprudence on LGBTQIA+ rights declares that LGBTQIA+ persons are entitled to dignity, equality, and privacy, which encompasses the fundamental right of LGBTQIA+ persons to marry a person of their choice. Accordingly, statutory recognition of such fundamental rights of LGBTQIA+ persons is merely a consequence of the Court's jurisprudence. Articles 19 and 21 of the Constitution guarantee all persons the right to marry a person of their choice, including LGBTQIA+ persons. The Special Marriage Act violates the right to dignity and decisional autonomy of LGBTQIA+ persons and therefore violates Article 21. Excluding LGBTQIA+ persons from the Special Marriage Act discriminates against them on the basis of their sexual orientation and the sex of their partner, violating Article 15. The Special Marriage Act is violative of Article 14 because it denies LGBTQIA+ persons equal protection of the laws, is manifestly arbitrary, and lacks a constitutionally valid, intelligible differentia. There is no legitimate state interest promoted by denying LGBTQ+ individuals the fundamental right of marriage. Recognising the right of LGBTQIA+ couples to marry upholds constitutional morality, which urges the organs of the State, including the judiciary, to preserve the heterogeneous nature of society and encourage it to be pluralistic and inclusive. Every person is entitled to marry someone of their choice; denying LGBTQ+ individuals the right to marry inflicts personal harm and a significant economic cost on the country. Denial of the right to marry amounts to a deprivation of the entitlement to full citizenship as well as a denial of the right to intimacy. The Constitution is a living document and ought to adapt to changing social realities. If a statute appears to violate the Constitution, the Supreme Court of India may either declare it unconstitutional or read it expansively to save its constitutionality. The Special Marriage Act can be read in a gender‑neutral manner to include LGBTQIA+ couples within its ambit. International consensus, including judicial consensus, recognises same‑sex and gender‑non‑conforming marriages, which is in line with India’s international obligations. Article 32 of the Constitution vests in persons a fundamental right to approach the Supreme Court of India for the enforcement of the rights guaranteed in Part III of the Constitution. Consequently, it is incorrect to argue that queer people must wait for Parliament to enact a law granting marriage equality. Consequential reliefs must necessarily follow a declaration that the right to marry is vested equally in all persons including LGBTQIA+ persons. The Special Marriage Act ought to be read in a gender‑neutral manner; gendered terms such as husband and wife should be read as spouse. Section 4 of the Special Marriage Act refers to any two persons, with Section 4(1)(a) referring to a spouse and Section 4(1)(b) referring to a party. The age for marriage under the Special Marriage Act should be twenty‑one years for all persons, and transgender persons may fall into the categories of either man or woman in the Act, depending on the gender they identify with., Dr. Abhishek Manu Singhvi, learned senior counsel, submitted that the Special Marriage Act is unconstitutional because it discriminates on the grounds of sexual orientation by preventing same‑sex couples from solemnising their marriages. Article 15(1) of the Constitution prohibits discrimination on the grounds of sex, which subsumes sexual orientation. The requirement in the Special Marriage Act that a couple should consist of a man and a woman is based on ascriptive characteristics and is an exclusion based on a marker of identity. Marriage is not merely a benefit or privilege; it forms the very basis of a couple’s ability to fully participate in society, providing social validation, dignity, self‑respect, security, and legal and civil benefits such as tax, inheritance, and adoption. The exclusion of same‑sex couples from the Special Marriage Act violates Article 14 because, although there is an intelligible differentia in sexual orientation, there is no rational nexus with any legitimate state purpose. The exclusion also violates Article 19(1)(a) because the act of entering into a marital relationship is protected as a form of expression, and the restriction is not a reasonable restriction under Article 19(2). Furthermore, the exclusion violates Article 21 as it denies dignity and sends a public message that LGBTQIA+ persons are unequal moral members of society, akin to caste‑based restrictions on temple entry and the refusal to accommodate disability in public examinations. The Special Marriage Act can be interpreted to authorise the solemnisation of same‑sex marriages when read consistently with the Constitution.
id_851	1	The interpretation of \man\ and \woman\ in Section 2(b) includes any person, including trans men, trans women, intersex and non‑binary individuals. Reliance was placed on Union of India v. Naveen Jindal (2004) 2 SCC 510 and National Legal Services Authority. Section 4(c) enacts only an age‑based exclusion for persons otherwise eligible to marry under Section 4, and shall not be construed to impose any disabilities based on gender, sexual orientation, or sexual identity. For same‑sex couples, Section 4(c) can be read as a single age restriction, either eighteen or twenty‑one, or as prescribing minimum age eighteen for lesbian relationships and twenty‑one for gay relationships. For non‑binary and inter‑sex persons, the Special Marriage Act may be read as imposing no restriction beyond that imposed by other laws, i.e., eighteen years. The Supreme Court of India may lay down interim guidelines while leaving it open to Parliament to fill the vacuum., References to \widow\ and \widower\ in Schedules II and III must be read as \widow or widower\ and \widower or widow\, and shall not impose any disabilities based on gender, sexual orientation, or sexual identity. References to bride and bridegroom in Schedules III and IV must be read as bride or bridegroom, and shall not impose any disabilities based on gender, sexual orientation, or sexual identity. The Foreign Marriage Act 1969 can similarly be read down. The relief sought by the petitioners is workable. In reading down the Special Marriage Act and the Foreign Marriage Act to achieve a constitutionally compliant interpretation, neither the text of the statute nor the intention of Parliament act as a limitation; only the underlying thrust of the legislation and the institutional capacity of the Supreme Court of India are relevant. The underlying thrust of the Special Marriage Act is that it was designed to facilitate marriages lying outside the pale of social acceptability. Reliance was placed on Ghaidan v. Godin‑Mendoza [2004]., In the alternative, the principle of updating construction ought to be applied to the Special Marriage Act. Courts may expand the existing words of a statute to further the march of social norms and contemporary realities. Some laws such as the Protection of Women Against Domestic Violence Act 2005, the Dowry Prohibition Act 1961, and provisions pertaining to cruelty in the Indian Penal Code 1860 were enacted to address structural imbalances of power between men and women in a heteronormative setting. These provisions do not impact whether same‑sex couples have a right to marry. They are beyond the scope of the petitions and need not be interpreted in favour of either spouse in a non‑heterosexual marriage., There is no timeless and immutable conception of marriage. The Special Marriage Act itself was enacted contrary to the cultural and social understanding of marriage which prevailed at the time. Further, the Special Marriage Act is a secular and areligious law meant to serve as an alternative for those who could not or did not want to solemnise their marriages under the applicable personal law, which is rooted in religion. The conditions for solemnisation under the Special Marriage Act need not conform to cultural, social, or religious understandings of marriage. The principles of equality and non‑discrimination cannot be trumped by societal values; they require a challenge to majoritarian social norms. The Supreme Court of India is not being asked to act as a substitute for the legislature or to alter the concept of marriage, but to find that exclusion of a group of people from the Special Marriage Act solely by virtue of their ascriptive characteristics is unconstitutional. A constitutionally compliant reading of the Special Marriage Act to allow for marriage equality is within the bounds of legitimate statutory interpretation and is not judicial legislation. Civil unions are not an equal alternative to the legal and social institution of marriage; relegating non‑heterosexual relationships to civil unions would send the queer community a clear message of subordination., Submissions of Mr. Raju Ramachandran, learned senior counsel: (a) The petitioners have a fundamental right to marry a person of one's own choice under Articles 14, 15, 19, 21 and 25 of the Constitution, and any exclusion or discrimination incorporated in Section 4(c) and other provisions of the Special Marriage Act is ultra‑violates the Constitution. Article 21 encompasses the right to happiness, which includes a fulfilling union with a person of one's choice. (b) The exclusion of the petitioners from the institution of civil marriage under the Special Marriage Act 1954 is inconsistent with the object of the law, i.e., to facilitate any marriage between two Indians irrespective of caste, creed or religion. (c) The systemic nature of natal family violence against LGBTQIA+ persons, owing to their sexual or gender identity, and the misuse of the criminal law machinery by families, often in collusion with local police, makes it imperative for the Supreme Court of India to frame guidelines concerning police action in dealing with cases of adult and consenting queer and transgender persons. (d) The special provisions for a wife in a heterosexual marriage under the Special Marriage Act need not be interpreted by the Supreme Court of India while deciding this batch of petitions, as they are protective provisions for women in pursuance of the constitutional mandate in Article 15(3). Similarly, gender‑specific laws including penal laws need not be subject to any interpretative exercise. Religious personal laws are also not required to be interfered with. (e) Declarations by the Supreme Court of India as to rights of people are followed by legislation; for instance, the rights declared in National Legal Services Authority were given effect to in the Transgender Persons Act. (f) The doctrine of reading‑in is well‑recognised in Indian jurisprudence. (g) The Union of India has argued that only Parliament can grant a new socio‑legal status of marriage to LGBTQ persons after extensive consultations, but the rights of the LGBTQIA+ community cannot be made contingent on the opinion of the majority., Submissions of Mr. K V Vishwanathan, learned senior counsel: (a) Under Article 21, all persons have a fundamental right to choose a partner. (b) International covenants to which India is a signatory, including the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, impose a duty upon the State not to interfere with the right of a person to marry and have a family of their own choice and to protect familial rights without discrimination on the basis of sexuality, race or religion. (c) Statutes regulating marriage in India must be read as inclusive of all gender identities and sexualities in view of the pronouncements of the Supreme Court of India in National Legal Services Authority and Navtej. Such a reading is necessary to ensure that these statutes satisfy Part III of the Constitution. (d) Courts across the country as well as state policies and welfare schemes have recognised and accorded equal status to unions between LGBTQ persons. A necessary corollary of the right to self‑identify gender is to be able to express personal preference in choice of partner, and therefore a marriage entered into by a transgender person must be fully recognised by the State. (e) The Supreme Court of India has previously issued guidelines to protect citizens against discrimination where there existed a lacuna in the law. (f) The freedom to choose a partner in marriage is covered under Article 19(1)(a) as expression, Article 19(1)(c) as association or union, and Article 19(1)(e) as the right to reside and settle in any part of the territory of India. (g) Excluding transgender persons from matrimonial statutes fails the reasonable classification test under Article 14. (h) Transgender persons have a right against discrimination under Articles 15 and 16. (i) The right of transgender persons to marry is enjoined by the Transgender Persons Act; the classification between biological and transgender persons is untenable. (j) Procreation is not the sole purpose of marriage; marriage is the union of two souls. (k) If the Union of India's argument that male and female in statutes refer only to cisgender males and females is accepted, it would lead to absurd and unjust outcomes, for example under the Hindu Succession Act 1956 an heir who is transgender would be unable to inherit property. (l) The National Commission for Protection of Child Rights has made unscientific claims on the effect of puberty blockers/sex‑transition therapy on children, disregarding internationally accepted guidelines issued by the World Professional Association for Transgender Health, which are referenced in the Transgender Persons Act. (m) The petitioners' constitutional rights cannot be denied on the ground that it would offend the \will of the people\; constitutional morality cannot be replaced by social morality., Submissions of Ms. Geetha Luthra, learned senior counsel: (a) The Foreign Marriage Act is applicable to a couple if at least one of them is an Indian citizen. The Act travels with the citizen to a foreign jurisdiction to extend its protection by recognising the citizen's marriage contracted under foreign law, or by allowing a citizen to solemnise their marriage under Indian law even when abroad. Under Section 17 of the Foreign Marriage Act, a marriage must be valid under foreign law and consistent with international law. (b) All citizens, including LGBTQIA+ citizens, are entitled to all rights available to Indian citizens even when abroad. Articles 19 and 21 guarantee the right to marry a person of one's choice, including LGBTQIA+ citizens. The Foreign Marriage Act violates the right to dignity and decisional autonomy of LGBTQIA+ persons and is discriminatory. (c) The object of the Foreign Marriage Act in adopting the scheme of the Special Marriage Act is to provide a uniform, civil and secular marriage law for a couple, either of whom is an Indian citizen. By recognising marriages only between opposite‑sex couples, the effect is to deny same‑sex and gender‑non‑conforming couples the right to marry, violative of Article 15. (d) The Foreign Marriage Act and the Special Marriage Act are violative of Article 14 because they deny LGBTQIA+ persons equal protection of laws, are manifestly arbitrary, and fail the rational nexus test. There is no intelligible differentia between LGBTQIA+ and non‑LGBTQIA+ couples. The object of the Foreign Marriage Act is to extend constitutional protection to a citizen abroad regardless of whom they choose to marry; excluding same‑sex and gender‑non‑conforming couples has no rational nexus with these objects. (e) The Foreign Marriage Act is pari materia to the Special Marriage Act and must be interpreted similarly with regard to same‑sex and gender‑non‑conforming marriages. (f) Recognition of marriage of same‑sex and gender‑non‑conforming couples under the Foreign Marriage Act furthers the comity of nations. (g) The grant of reliefs does not render the provisions of the Foreign Marriage Act or other statutes employing gendered terminology unworkable., Submissions of Mr. Anand Grover, learned senior counsel: (a) Marriage remains fundamental to the functioning of society and to avail important schemes such as joint tax benefits and rights of surrogacy. (b) The Foreign Marriage Act must be interpreted liberally to advance the cause of society at large and must not be interpreted to cause hardship. (c) The failure of the Special Marriage Act to recognise same‑sex marriages violates Articles 14 and 15 because it fails the reasonable classification test, is manifestly arbitrary, and discriminates based on gender identity and sexual orientation. (d) The failure also violates Article 19(1)(a) because sexuality, gender expression and marriage are forms of expression. (e) The right to intimate associations is protected by Article 19(1)(c). (f) Same‑sex marriages or gender‑non‑conforming marriages form a part of Indian tradition and culture. (g) Queerness or homosexuality is not an urban, elite conception; numerous queer couples from villages and towns have expressed their sexuality, chosen partners and entered into marriage. (h) There is no traditional bar on marriage between non‑heterosexual persons; excerpts from various scriptures support this proposition., Submissions of Ms. Jayna Kothari, learned senior counsel: (a) The Special Marriage Act ought to be read to include the words spouse and person so as to include transgender persons within its ambit; failure to do so violates the right of transgender persons to equality and equal protection under Article 14. (b) The Act discriminates on the basis of sex, gender identity and sexual orientation, violating Article 15. (c) Denial of the right to marry based on gender identity is a denial of dignity, personal autonomy and liberty under Article 21. (d) Inter‑sex persons have the same rights as all other persons in India, including the right to marry. (e) The right to a family under Article 21 includes the right to marry; the Special Marriage Act is violative of the right of transgender persons to have a family. Reliance was placed on Oliari v. Italy., Submissions of Dr Menaka Guruswamy, learned senior counsel: (a) The Indian Parliament is a creature of the Constitution and does not enjoy unfettered sovereignty; the supremacy of the Constitution is protected by the Supreme Court of India by interpreting laws in consonance with constitutional values. (b) The Supreme Court of India's power of judicial review over legislative action is part of the basic structure of the Constitution. (c) Constitutional courts are empowered to review statutory law to ensure conformity with constitutional values; courts do not need to wait for the legislature to enact or amend law to recognise same‑sex marriage. (d) Provisions of the Special Marriage Act that do not recognise same‑sex marriages are unconstitutional as they violate Articles 14, 15, 19, 21 and 25; therefore the Act must be read up to recognise same‑sex marriages. (e) Recognition of same‑sex marriages under the Special Marriage Act is consistent with the evolving conception of the institution of marriage. (f) Same‑sex marriage is a time‑honoured tradition in Indian society. (g) The gendered references in the Special Marriage Act can be read to recognise same‑sex marriages. (h) The State has no legitimate interest in restricting marriage to heterosexual couples alone. (i) The codification of Hindu personal laws commenced in 1941 with the Hindu Law Committee, leading to the Hindu Marriage Act 1955, Hindu Succession Act 1956, Hindu Minority and Guardianship Act 1956 and Hindu Adoptions and Maintenance Act 1956. Despite opposition, these reforms have stood the test of time; objections to same‑sex marriage are akin to the opposition to the Hindu Code Bill., Submissions of Mr. Saurabh Kirpal, learned senior counsel: (a) Depriving LGBTQ+ individuals of the right to marry violates Articles 14, 15, 19(1)(a) and 21. (b) The right to marry a person of one's choice is itself a fundamental right. (c) The Special Marriage Act is unconstitutional if interpreted to exclude LGBTQ individuals. (d) The intent of Parliament when it enacted the Act is not relevant; the doctrine of reading‑in does not aim to discover parliamentary intention but to save a statute from unconstitutionality. (e) Having found a right to marry, the Supreme Court of India cannot hold that there is no remedy or real possibility for the exercise of that right. (f) By virtue of Article 13, the Constitution trumps a statute that violates the Constitution; analysis under Article 13 does not extend to whether a statute is workable after reading‑in., Submissions of Ms. Vrinda Grover, learned senior counsel: (a) Interference, opposition and violence from natal families, irrespective of marital status, violates the fundamental right to life and personal liberty under Article 21. (b) Non‑recognition of atypical families or chosen families beyond marriage, blood or adoption violates Articles 14, 15, 19 and 21. (c) Non‑recognition of marriage between two consenting adults on the basis of gender identity or sexual orientation under the Special Marriage Act violates Articles 14, 15, 19 and 21. (d) Constitutional courts sometimes accord undue deference to the natal family, ignoring coercion and violence faced by queer and transgender persons; reference made to Devu G v. State of Kerala. (e) The Supreme Court of India ought to issue directions to all state governments to instruct police officers to compulsorily follow Sections 41 and 41‑A of the Code of Criminal Procedure 1973 when responding to complaints involving queer and transgender adults who voluntarily leave natal homes. (f) Issues of workability in statutory provisions do not preclude the Supreme Court of India from protecting rights under Part III of the Constitution., Submissions of Ms. Karuna Nundy, learned counsel: (a) A spouse of foreign origin of an Indian citizen or Overseas Citizen of India cardholder is entitled to apply for registration as an OCI under Section 7A(1)(d) of the Citizenship Act 1955. Section 7A(1)(d) is gender, sex and sexuality neutral, unlike the Foreign Marriage Act and Special Marriage Act. The absence of any condition based on gender/sex/sexuality is a casus omissus in the Citizenship Act; the Supreme Court of India cannot supply a casus omissus by judicial interpretation except in clear necessity. (b) Recognition of a foreign marriage between two non‑citizens is a ministerial act; only the substantive law of the foreign jurisdiction is relevant. (c) It would be manifestly arbitrary and contrary to Article 14 for the law to accord a larger ambit for registration of marriages to an OCI than to a citizen married abroad; a harmonious construction of the Foreign Marriage Act with the Citizenship Act is required. (d) Denial of the right to marry for queer persons violates Articles 14, 15, 19 and 21. (e) Rule 5 of the Transgender Persons (Protection of Rights) Rules 2020 recognises marriage of transgender persons because Form 2 contains the word spouse., Submissions of Ms. Anitha Shenoy, learned senior counsel: (a) The petitioners have a fundamental right to marry a person of one's own choice under Articles 14, 15, 19, 21 and 25, and any exclusion or discrimination from solemnisation or registration incorporated in Section 4(c) and 17(2) and other provisions of the Foreign Marriage Act is ultra‑violates the Constitution. (b) The denial of recognition of the petitioners' marriage is inconsistent with the object of the Foreign Marriage Act not to invalidate marriages duly solemnised under foreign law by Indian citizens. (c) The requirement of proof of a marital relationship for joint adoption under Regulations 5(2)(a) and 5(3) is beyond the remit of Section 57 of the Juvenile Justice Act, which extends joint adoption to marriage‑like relationships including same‑sex couples solemnised overseas. (d) Regulations 5(2)(a) and 5(3) of the Adoption Regulations 2022 are ultra‑violates the Juvenile Justice (Care and Protection of Children) Act 2015. They also violate the principle of equality and non‑discrimination under Articles 14 and 15, the right to adoption and motherhood under Article 21, and the right of a child to be adopted as recognised under the Hague Convention on Protection of Children and Co‑operation in respect of Inter‑country Adoption 1980 and the Convention on the Rights of the Child 1989., Submissions of Ms. Arundhati Katju, learned counsel: (a) Article 21 protects the right to found a family and a meaningful family life for all persons including LGBTQ persons. The law defines family and household broadly and is not limited to a biological man and woman and their children. Surrogacy and adoption are available only to married couples, thus denying LGBTQ couples the right to found a family. (b) A child's right to a meaningful family life under Article 21, and its best interest, is protected by recognising its parents' relationship through marriage. (c) Denying LGBTQ couples the right to marry violates Article 14 as to them and their children. (d) The Special Marriage Act should be read expansively to save it from unconstitutionality or, alternatively, it should be struck down. (e) Any interpretative difficulties arising from reading‑in must be decided case‑by‑case by the courts. (f) A declaration of the rights of queer people by the Supreme Court of India will not preclude debates in Parliament or society., Submissions of Ms. Amritananda Chakravorty, learned counsel: (a) The Office Memorandum issued by the Central Adoption Resource Authority on 16 June 2022 is unconstitutional because it prevents same‑sex couples and gender‑nonconforming couples from availing joint adoption. (b) The requirements prescribed in the CARA Circular go beyond the remit of the Juvenile Justice Act. Section 2(49) defines prospective adoptive parents as persons eligible to adopt as per Section 57; it does not require prospective adoptive parents to be heterosexual, nor does Section 57 specify marital status as a relevant factor., Submissions of Mr. Raghav Awasthi, learned counsel: He sought to make submissions regarding the Hindu Marriage Act; the Supreme Court of India declined to hear arguments on this issue in the present proceedings., Submissions of Mr. Shivam Singh, learned counsel: (a) It is unconstitutional for the State to discriminate against persons because of their innate characteristics. (b) Upholding the heterosexual notion of marriage as the only constitutionally and legally sanctioned notion would perpetuate gender‑based stereotypes proscribed by the Constitution and is therefore violative of Article 15. (c) Resorting to the General Clauses Act 1897, Section 4(c) of the Special Marriage Act can be read down such that the singular male and female includes the plural as well., Submissions of Manu Srinath, learned counsel: (a) Persons whose fundamental rights are violated are entitled to seek judicial review of the violating act. (b) It is permissible for judicial review to result in an increase in the size of the intended pool of beneficiaries of legislation; such an exercise does not amount to legislation by courts. (c) Judicial review is a tool to achieve social justice and to realise constitutional aspirations and ideals., Submissions of Jaideep Gupta, learned counsel: (a) If recognition is accorded to marriage by queer persons, they will be protected from conversion therapies and forced marriages. (b) Queer marriages do not fall within the degrees of prohibited relationships. (c) The classification on the basis of age in the Special Marriage Act ought to be declared unconstitutional insofar as it mandates a different minimum age for men and women; the Court should declare twenty‑one years as the ideal age for all marriages. The Prohibition of Child Marriage (Amendment) Bill 2021, which seeks to raise the legal age for girls to twenty‑one, is pending in Parliament., Submissions of Thulasi Raj, learned counsel: (a) The exclusion of the LGBT community from the institution of marriage is demeaning as defined by Deborah Hellman. (b) Prejudicial notions about sexuality inform the Special Marriage Act although its provisions may not expressly contain such prejudices., Submissions of Tanushree Bhalla, learned counsel: (a) The word \man\ in the Special Marriage Act ought to be read as meaning a cisgender man, a transgender man, and any person who assumes a role in the marriage that the statute or society confers on men; the word \woman\ must be interpreted similarly. (b) Section 4(c) of the Special Marriage Act excludes intersex persons. (c) A minimum age at which persons of the third gender may marry may be read into Section 4(c) of the Special Marriage Act., Note on procedural issues: Some senior counsel and counsel sought to address the Supreme Court of India on the notice and objections regime in the Special Marriage Act (Sections 5 to 9), but the Court has not heard arguments on this issue in the present proceedings., Submissions of Mr. R. Venkataramani, Attorney General of India for the Union of India: The Supreme Court of India has already issued constitutional declarations on the right to form a family and the right to marry of non‑heterosexual persons in Navtej.
id_851	2	The issue in this batch of petitions relates to fitting the constitutional declaration into relevant laws. The Special Marriage Act (SMA) is a species of the general marriage laws. Marriage is conceived to be a union between heterosexuals across all laws on marriage and procreation is an essential aspect of marriage. At the time when the Special Marriage Act was enacted, an alternative conception of a union of persons (other than heterosexuals) did not exist. The SMA is intended to regulate marriage between heterosexuals irrespective of caste and religion. Thus, the omission of non‑heterosexual unions from the purview of the enactment would not render the enactment unconstitutional because of under‑inclusiveness. The SMA will be under‑inclusive only when a class of heterosexuals is excluded by the statute. There would be no internal cohesion in the SMA if Section 4 is read in a gender‑neutral manner; such an interpretation would render the implementation of Sections 19 to 21A, which link the SMA with other personal and non‑personal laws, difficult. Courts can use the interpretative tool of reading‑in only when the stated purpose of the law is not achieved. Since the purpose of the SMA is to regulate heterosexual marriages, the Supreme Court of India cannot read words into the enactment to expand its purview beyond what was originally conceptualised. It is up to Parliament to enact a special code regulating non‑heterosexual unions and the specific issues that such unions would face during and after the partnership, after comprehensively engaging with all stakeholders. The course adopted by the Supreme Court of India in Vishaka (supra) cannot be replicated for two reasons: (i) there is no legislative vacuum in the instant case, and (ii) the non‑inclusion of all possible kinds of unions cannot be construed as a constitutional omission. Courts cannot issue directions granting legal recognition to non‑heterosexual marriages because it would require the redesigning of several enactments and rules. Marriage rights must be given only through the parliamentary process after wide consultation, and a declaration by the Supreme Court of India granting legal recognition to non‑heterosexual marriages accompanied with a scheme of rights would be anathema to the separation of powers. The Supreme Court of India must not venture into the realm of policy‑making and law‑making., Mr. Tushar Mehta, learned Solicitor General appearing for the Union of India, made the following submissions: The institution of marriage occupies a central role in the sustenance and progression of humankind. The prominent components of a marriage are companionship, sexual intimacy, and most importantly, procreation. Marriage (from an individual perspective) serves the purpose of sustaining an individual's gene pool. From a societal perspective, marriage contributes towards the proliferation of future generations for the sustenance of humankind. The Constitution does not recognise a right to marry. An expression of a person's sexuality is protected under Article 19(1)(a) of the Constitution. However, marriage cannot be traced to the right to freedom of expression or the right to form unions under Article 19(1)(c). This Court has not previously recognised the right to marry under the Constitution. The observations of this Court in Shafin Jahan (supra) and Shakti Vahini (supra) that the petitioners' right to marry has been violated must be read in the specific context of those judgments. In those cases, the right to marry which is conferred by the legislature to inter‑caste and inter‑religious couples was violated by State and non‑State actors. Marriage is a creation of statutes. The State, by virtue of Entry 5 of List III of the Seventh Schedule, has the power to regulate the institution of marriage. In exercise of this power, the legislature has prescribed various conditions which must be fulfilled before legal recognition can be given to a union, including the minimum age to consent to marriage, the prohibition of bigamy, and the bar against marrying within the degrees of prohibited relationship. The State is not under an obligation to grant legal recognition to every type of relationship; it recognises relationships only when there exists a legitimate State interest. The State has a legitimate interest in legally recognising heterosexual relationships for the sustenance of society. After the decriminalisation of homosexuality in Navtej (supra), members of the LGBTQIA+ community have the freedom and autonomy to choose their partners without restraints on gender and sexuality. However, the decriminalisation of the sexual offence does not cast an obligation on the State to grant legal recognition to such relationships or unions. Marriage is a legal privilege conditional upon statutory or societal conditions. The right to choose a partner does not necessarily imply a right to marry a partner of choice. The Courts do not have the power to decide if legal recognition can be granted to a union of non‑heterosexual individuals; this is an issue that must be decided by the legislature, being the elected representatives of the citizens. It would become impossible to deny legal recognition to practices such as incest or polygamy if non‑heterosexual couples are granted the right to marry. Marriage is a public institution that falls in the outer‑most zone of privacy and is therefore susceptible to the highest degree of State regulation. The Supreme Court of India in Navtej (supra) only granted protection to the intimate and intermediate zone of privacy of non‑heterosexual couples. Both the father and the mother have a significant and unique role in the upbringing of children. In non‑heterosexual unions, a child born out of surrogacy, assisted reproductive technology, or adoption would feel the absence of either a father or a mother. The State does not grant legal recognition to homosexual unions in the form of marriage to protect the interest of children; this is a legitimate State interest, and the petitioners have not submitted sufficient data to back their claim that the interest of a child raised by a non‑heterosexual couple is protected. Granting legal recognition to non‑heterosexual unions would dilute heterosexual marriages; for example, in the Netherlands, more heterosexual couples have opted for domestic partnerships and cohabitation after legal recognition was granted to non‑heterosexual unions. Non‑heterosexual unions are not granted legal recognition to protect the institution of marriage., The impugned provisions of the Special Marriage Act are constitutional because: the legislative debates during the introduction of the SMA indicate that Parliament made a conscious decision to exclude non‑heterosexual unions from the ambit of the SMA; the object of the SMA is to grant (and regulate) legal recognition to inter‑faith and inter‑caste unions of heterosexual couples, and the provisions of the SMA have a reasonable nexus to this object; there is an intelligible differentia in classifying unions into heterosexual and non‑heterosexual partnerships because heterosexual couples sustain society through procreation. In fact, the Transgender Persons Act also classifies persons into homosexuals and heterosexuals and grants substantive rights to members of the LGBTQIA+ community in furtherance of substantive equality, recognising the autonomy of the LGBTQIA+ community to choose a partner of their choice; the constitutionality of a statute cannot be challenged on the ground of under‑inclusion; emerging evidence indicates that homosexuality may be an acquired characteristic rather than an innate one, and children exposed to homosexual experiences are more likely to identify as homosexual in adulthood. Thus, the Supreme Court of India must not approach this issue from a linear reductionist perspective, and the argument that the SMA is unconstitutional because it excludes a class based on innate characteristics is erroneous., The SMA would become unworkable if it is read in a gender‑neutral manner, and it would amount to the Court re‑drafting a large number of provisions. Section 2(b) read with the First Schedule prescribes distinctive degrees of prohibited relationships for the bride and the groom. According to Section 4(c), the male must have completed twenty‑one years of age and the female must have completed eighteen years of age at the time of marriage; reading the phrase \spouse\ in place of male and female would render the distinctive minimum‑age requirement based on gender otiose. The statutory oath for solemnisation expressly uses the phrases \wife\ and \husband\. Section 21 states that the rules of succession provided in the Indian Succession Act 1925 govern the succession of property of any person married under the SMA, and the Indian Succession Act prescribes different rules and procedures for succession based on gender. Reading the SMA in a gender‑neutral manner would impact the interpretation of the Indian Succession Act as well. By virtue of Section 21A, the rules of succession under the Hindu Succession Act shall apply for marriages solemnised between a male and female professing the Hindu, Buddhist, Sikh or Jain religion; the Hindu Succession Act also prescribes different rules for succession based on gender, and a gender‑neutral reading of the SMA would render the Hindu Succession Act unworkable. Other provisions of the SMA, such as Sections 27, 31, 36 and 37, cater to the needs and requirements of a woman in a heterosexual marriage; a gender‑neutral reading would impact the interpretation of these provisions. Declaring that non‑heterosexual couples have a right to marry would grant legal recognition to a new social relationship and could pre‑empt legislative debate. The term \spouse\ in Section 7A of the Citizenship Act 1955 cannot be read in a gender‑neutral manner. Section 7A of the Citizenship Act applies to the same class of persons to whom the Foreign Marriage Act (FMA) applies, and the FMA expressly uses the phrases \bride\ and \bridegroom\. Section 4 of the FMA prescribes the same conditions for the registration of a marriage as Section 4 of the SMA., Mr. Kapil Sibal, learned senior counsel appearing for an intervenor, made the following submissions: Marriage was defined by the social acceptability of a relationship even before it was codified. The heterosexual nature of a marriage was not introduced by law; law merely regulated unions which were socio‑historically recognised, and the law has always differentiated between heterosexual and non‑heterosexual unions. A legal recognition of a union is premised on the recognition of a relationship on an individual, family and societal level. The right of a person to choose a partner of their choice is protected under Article 21, but legislative recognition of such a choice is not a fundamental right. The right to marry cannot be traced to the right to privacy, which postulates a negative obligation on the State and society not to interfere with individual choices. However, when the exercise of privacy has a public dimension, the State must regulate it in the larger interest of the community, as it has done with parameters such as the number of partners and the age of marriage. The South African Supreme Court in Minister of Home Affairs v. Fourie and the United States Supreme Court in Obergefell v. Hodges recognised the right to marry while acknowledging the importance of social debate and public discourse. Public engagement, through law commissions, referendums, bills or High Court decisions, is essential. Incremental approaches have been adopted elsewhere, for example, Mexico City recognised cohabitation partnerships of homosexual unions in 2006 and three years later recognised the right to marry. In South Africa, before the Fourie judgment, the Constitutional Court dealt with the criminalisation of sodomy, the rights of same‑sex immigrant partners, the right to adoption of same‑sex partners, and the non‑inclusion of same‑sex partners in a statute providing pension rights. This Court, instead of limiting its judgment to the reliefs sought by the petitioners, must also address whether the LGBTQIA+ community, as a sexual minority, is entitled to protection in the absence of a law; the recognition of hindrances faced by LGBTQIA+ unions and the procedure to resolve them; and the necessity of administrative procedures recognising that sexual orientation is a physiological phenomenon and that same‑sex unions must not be discriminated against. The assumption that law and society must treat non‑heterosexual unions as belonging to the same class as heterosexual unions without distinction based on sexual orientation is wrong. The exclusion of non‑heterosexual unions from the SMA is not violative of Articles 14 and 15 of the Constitution. Marriage between any two persons as provided in Section 4 of the SMA and the Foreign Marriage Act cannot include non‑heterosexual unions because Section 4(a) states that marriage cannot be solemnised if either party has a spouse living at the time of marriage; the SMA, when enacted, referred to marriages that had taken place before it came into force, and the word \spouse\ could only have been used in the context of heterosexual marriages. The mere usage of a gender‑neutral term does not indicate legislative intent to include non‑heterosexual unions within the ambit of the enactment. The statute is not under‑inclusive for implicitly excluding non‑heterosexual unions because Parliament did not contemplate their inclusion at the time of enactment. Under‑inclusion applies only where a statute that must necessarily cover a category excludes them from the benefits it confers. The interpretative tool of reading‑in means reading into the text of the statute without altering it; reading the word \spouse\ into the SMA where the words \husband\ and \wife\ are used would render provisions based on conventional ideas about a heterosexual relationship redundant. The legislative regime related to marriage and allied issues has been enacted in response to the unique challenges that heterosexual marriages face. Even if the Supreme Court of India finds that the Constitution grants a right to legal recognition of non‑heterosexual unions, a new legislative regime regulating such marriages must be introduced to address their unique challenges. The Court can use its power under Article 142 to fill legislative vacuums to the limited extent of laying down procedural guidelines, but it cannot create substantive rights and obligations because that would amount to judicial legislation. The Court cannot direct the legislature to enact a law nor dictate when it should be enacted; these are established parameters of the separation of powers that must be respected., Mr. Arvind P. Datar, learned senior counsel appearing for an intervenor, made the following submissions: The Supreme Court of India has recognised the right to marry in K.S. Puttaswamy (J.) (supra), Shafin Jahan (supra), Shakti Vahini (supra) and Navtej (supra). However, only Justice Nariman's opinion in Navtej held that non‑heterosexual couples also have a right to marry. A statute can be struck down after a passage of time only if the rationale of the law ceases to exist, as in the case of Section 377 of the Indian Penal Code where medical research indicated that same‑sex relationships are not unnatural. The Court, while interpreting provisions of a statute, can iron out creases but not alter the fabric. The exercise of reading‑up can be undertaken only when it is consistent with legislative intention, does not alter the nature of the enactment, and the new state of affairs is of the same kind as the earlier state of affairs to which the enactment applies. The judgment of the Madras High Court in Arunkumar (supra), interpreting the word \bride\ in the Hindu Marriage Act to include transgender and intersex persons, is contrary to the Supreme Court's decision in Madhu Kishwar v. State of Bihar, where it was held that male pronouns must not be expansively interpreted to include female pronouns. Legal recognition of non‑heterosexual unions is a polycentric issue that cannot be resolved solely by the judiciary. Unenumerated or derivative rights recognised by courts through judicial interpretation are inchoate because they are an exception to the rule ubi jus ibi remedium. Thus, even if the Supreme Court of India recognises the petitioners' right to marry, it is not enforceable., Ms. Aishwarya Bhati, learned Additional Solicitor General appearing for an intervenor, made the following submissions: Article 21 guarantees that every child will have the best upbringing. The petitioners have not submitted any data to prove that the interests of the child would be protected if they are raised by non‑heterosexual parents. A child born to a heterosexual couple is innately adaptable to a similar family environment and naturally seeks a family environment comparable to their birth family. Chapter II of the Juvenile Justice (JJ) Act, which lays down the General Principles of Care and Protection of Children, stresses the best interest of the child. Principle XIII states that every child in the juvenile justice system has a right to be restored to the same socio‑economic and cultural status as they were earlier. Men and women are differentiated for the purpose of adoption, assisted reproduction and surrogacy; for example, the law does not permit a man to adopt a girl child. The scheme of the laws relating to adoption and surrogacy must be revamped for the inclusion of any excluded categories of intending parents. The law protects a child by assuming that they are incapable of entering into contracts, committing an offence, or consenting to a sexual relationship. Thus, children cannot be subjected to emerging and evolving notions of gender fluidity or be made guinea pigs of an evolving social experiment. The State is justified in prescribing reasonable restrictions for adoption, assisted reproductive technology and surrogacy based on the welfare of children., Mr. Rakesh Dwivedi, learned senior counsel appearing for the State of Madhya Pradesh, made the following submissions: Only thirty‑four of the one hundred and ninety‑four countries have recognised marriage between non‑heterosexual individuals. Of those thirty‑four countries, the legislature has recognised it in twenty‑four. At least twenty of the twenty‑four countries enacted a framework for registered partnerships or civil unions for granting legal recognition to non‑heterosexual unions. In ten countries, the courts have directed the State to recognise non‑heterosexual marriages, but the approach taken by the courts in these ten countries is not uniform; it is specific to social complexities and legal arrangements in each jurisdiction. The laws relating to marriage and the benefits which accrue because of marriage are not uniform; they take into account religious and regional differences. The principle of non‑discrimination in Articles 14 and 15(1) does not mandate that marriage must be organised and recognised in a uniform manner, nor does the principle of equality postulate uniformity. The principle of non‑discrimination in Article 14 is not violated if the law is not all‑embracing; the legislature can choose to remedy certain degrees of harm. It is for the legislature to decide if non‑heterosexual unions must be legally recognised and what benefits and entitlements must be conferred to the union. Legislation governing unions and the benefits which accrue because of unions do not become unconstitutional after the decriminalisation of homosexuality in Navtej (supra). Decriminalisation of a sexual offence does not automatically confer legal recognition to a union. The majority opinion in Navtej held that homosexuals have a right to form a union under Article 21, but the Court specifically observed that a union does not mean marriage. Thus, Navtej has ruled out the possibility of non‑heterosexual marriages. The observation in Puttaswamy (J.) (supra) that the State has a positive obligation to provide legal protection to enable the exercise of choice was limited to the specific context of data protection. Such an obligation can be imposed on the State only when a right is infringed because of actions of the State.
id_851	3	The phrases male applicant and female applicant are substituted by the phrases Prospective Adoptive Parent 1 and Prospective Adoptive Parent 2 (in case of applicant couples) in Schedules II, III, VI and VII of the Adoption Regulations; Section 5 of the Hindu Marriage Act does not distinguish between homosexual and heterosexual couples and the former have a right to marry under the Hindu Marriage Act; LGBTQ persons have a constitutional right to a chosen family in lieu of next of kin under all laws as an intrinsic part of their right to a dignified life under Article 21; An unmarried person can nominate any person(s) to act as their nominee or next of kin, irrespective of whether such person is a guardian, close relative or family member, with respect to healthcare decisions in case of incapacity such as the execution of Advance Directives and assigning any legal right, interest, title, claim or benefit accrued to the person; The State Governments must apply all preventative, remedial, protective, and punitive measures including the establishment of safe houses similar to the Garima Greh welfare scheme, in order to guarantee the safety and security of all individuals irrespective of gender identity and sexual orientation; The provisions of matrimonial statutes including the rules and regulations framed thereunder, to the extent that they are construed as requiring one male or bridegroom and one female or bride for the solemnisation of marriage, be read as neutral as to gender identity and sexual orientation; and All marriages between couples in which either one or both partners are transgender or gender non‑conforming or who otherwise do not identify with the sex assigned to them at birth, may be solemnised under matrimonial statutes regardless of their gender identity and sexual orientation., In addition, the petitioners have sought directions to the Union Government, the State Governments, and district and police authorities to adopt and follow a protocol in cases which concern adult, consenting LGBTQ persons who require protection from their families, regardless of whether such persons are married., The respondents argued that Supreme Court of India should not decide the issue of whether legal recognition in the form of marriage can be given to non‑heterosexual relationships. It was argued that this issue must necessarily be decided by the people themselves or through the elected representatives. It was also submitted that Supreme Court of India, by deciding the issue one way or the other, would pre‑empt any debate in the legislature., The respondents' submission is two‑fold: first, the Court does not have the power to decide this issue; and second, such a decision can be arrived at only through a process that reflects the electoral will. Article 32 vests Supreme Court of India with the power to enforce the rights in Part III of the Constitution., Part III of the Constitution of India enshrines the fundamental rights of the people of India. Article 13 of the Constitution stipulates that the State shall not make any law which takes away or abridges the rights conferred in Part III and that any law made in contravention of this condition shall, to the extent of the contravention, be void. Article 32 complements Article 13 and provides the right to a constitutional remedy for the enforcement of rights conferred by Part III: (1) The right to move the Supreme Court of India by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court of India shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part., The Constitution of India is unique in that its provisions expressly accord the judiciary with the power to review the actions of the legislative and executive branches of government, unlike in many other countries. Article 32 makes fundamental rights justiciable and is worded broadly. The right to approach Supreme Court of India for the enforcement of the fundamental rights embodied in Part III is itself a fundamental right by virtue of Clause (1) of Article 32. It states that Supreme Court of India may be moved by appropriate proceedings. This expression means that the appropriateness of the proceedings depends on the relief sought by the petitioner., Clause (1) of Article 32 does not place any constraints on the power of Supreme Court of India to entertain claims that the rights enumerated in Part III have been violated. Daryao v. State of U.P., (1962) 1 SCR 574., Similarly, Clause (2) is worded expansively and enlarges the scope of the powers of Supreme Court of India to enforce fundamental rights. First, Clause (2) provides Supreme Court of India with the power to issue directions, orders, or writs, which indicates that Supreme Court of India may mould the relief according to the requirements of the case before it and that it is not constrained to a particular set of cases in which a particular relief or set of reliefs may be granted. This expression indicates that the power of Supreme Court of India is not limited to striking down an offending statute, rule, or policy; rather, it extends to issuing directions or orders or writs for the enforcement of fundamental rights. Second, the word “including” in Clause (2) indicates that the five writs mentioned in that clause are illustrative. The word “including” is used as a word of enlargement. Supreme Court of India may issue directions, orders, or writs other than the five writs specified. Therefore, the manner in which Article 32 has been drafted does not limit the powers of Supreme Court of India. To the contrary, it clearly and unambiguously vests Supreme Court of India with the power to conduct judicial review and give effect to the fundamental rights enumerated in Part III. State of West Bengal v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571., The extent of the powers vested in Supreme Court of India by Article 32 as envisaged by the framers of the Constitution can be understood from the Constituent Assembly’s discussion of the provision which was eventually adopted as Article 32. Mr. H. V. Kamath was of the opinion that it was unwise to particularise the writs which Supreme Court of India ought to issue, and that Supreme Court of India should have the power to issue any directions it considered appropriate in a case. In service of this idea, he moved an amendment to substitute clause (2) of the provision which is now Article 32. The substituted clause was to read: “The Supreme Court of India shall have power to issue such directions or orders or writs as it may consider necessary or appropriate for the enforcement of any of the rights conferred by this part.”, Responding to this proposal, Dr. B. R. Ambedkar underscored that Supreme Court of India had been endowed with wide powers of a general nature: what has been done in the draft is to give general power as well as to propose particular remedies. The language of the article is very clear. These are quite general and wide terms. These writs ought to be mentioned by their name in the Constitution without prejudice to the right of the Supreme Court of India to do justice in some other way if it felt it was desirable to do so. I, therefore, say that Mr. Kamath need have no ground of complaint on that account., Vikram Aditya Narayan and Jahnavi Sindhu, A historical argument for proportionality under the Indian Constitution (2018) Vol. 2(1) ILR 51. Constituent Assembly Debates, Volume 7, 9 December 1948., The power of Supreme Court of India to do justice is not, therefore, limited either by the manner in which Article 32 has been constructed or by any part of the Constitution. It is amply clear from both the plain meaning of Article 32 as well as the Constituent Assembly Debates that Supreme Court of India has the power to issue directions, orders, or writs for the enforcement of the rights incorporated in Part III of the Constitution., Judicial review and separation of powers. The doctrine of separation of powers, as it is traditionally understood, means that each of the three organs of the state (the legislature, the executive, and the judiciary) perform distinct functions in distinct spheres. No branch performs the function of any other branch. The traditional understanding of this doctrine (also termed the pure doctrine) does not animate the functioning of most modern democracies. That our Constitution does not reflect a rigid understanding of this doctrine has long been acknowledged by Supreme Court of India. In practice, a functional and nuanced version of this doctrine operates, where the essential functions of one arm of the state are not taken over by another arm and institutional comity guides the actions of each arm. In other words, the functional understanding of the separation of powers demands that no arm of the state reigns supreme over another., The Union of India suggested that Supreme Court of India would be violating the doctrine of separation of powers if it determines the issue in this case. The separation of powers undoubtedly forms a part of the basic structure of the Constitution, but equally, the power of courts to conduct judicial review is also a basic feature of the Constitution. The doctrine of separation of powers certainly does not operate as a bar against judicial review. In fact, judicial review promotes the separation of powers by seeing to it that no organ acts in excess of its constitutional mandate. It ensures that each organ acts within the bounds of its remit. Further, as discussed in the previous segment of this judgment, the Constitution demands that Supreme Court of India conduct judicial review and enforce the fundamental rights of the people. The framers of our Constitution were no doubt conscious of this doctrine when they provided for the power of judicial review. Being aware of its existence and what it postulates, they chose to adopt Article 32 which vests Supreme Court of India with broad powers. The doctrine of separation of powers cannot, therefore, stand in the way of Supreme Court of India issuing directions, orders, or writs for the enforcement of fundamental rights. The directions, orders, or writs issued for this purpose cannot encroach upon the domain of the legislature. Supreme Court of India cannot make law; it can only interpret it and give effect to it., The existence of the power of judicial review cannot be conflated with the manner in which the power is exercised. The exercise of the power of judicial review abides by settled restraints which acknowledge that the power of law making is entrusted to democratically elected legislative bodies and that the formulation and implementation of policy is entrusted to a government which is accountable to the legislature. In the exercise of its legislative function the legislature may incorporate policies which will operate as binding rules of conduct to operate in social, economic and political spaces. Judicial review is all about adjudicating the validity of legislative or executive action (or inaction) on the anvil of the fundamental freedoms incorporated in Part III and on the basis of constitutional provisions which structure and limit the exercise of power by the legislative and executive arms of the State., Judicial review is a constitutionally entrenched principle which emanates from Article 13. It is not a judicial construct. The power of judicial review has been expressly conferred by the Constitution. In the exercise of the power of judicial review, Supreme Court of India is cognizant of the fact that the legislature is a democratically elected body which is mandated to carry out the will of the people. It is in furtherance of this mandate that Parliament and the State legislatures enact laws. Courts are empowered to adjudicate upon the validity of legislation and administrative action on the anvil of the Constitution. In the exercise of the power of judicial review, Supreme Court of India does not design legislative policy or enter upon the legislative domain. Supreme Court of India will hence not enter into the legislative domain by issuing directions which for all intents and purposes would amount to enacting law or framing policy., The power of Supreme Court of India to enforce rights under Article 32 is different from the power of the legislature to enact laws. In Powers, Privileges and Immunities of State Legislatures, In re, a seven‑Judge Bench of Supreme Court of India held: whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country. Hence, it falls squarely within the powers of Supreme Court of India to adjudicate whether the fundamental rights of queer persons have been infringed, as claimed by the petitioners., Supreme Court of India will not issue a mandamus to Parliament but will determine the scope and effect of certain fundamental rights. What do these rights mean and what are their incidents? What do they require of the State? What are their boundaries? In answering these questions, Supreme Court of India is not enacting law or framing policy but is performing its constitutionally mandated function of interpreting the Constitution and enforcing the rights it recognises. Supreme Court of India cannot ignore its duty to fulfil the mandate of Articles 13 and 32. The distinction between law‑making and adjudicating the rights of the people by interpreting the Constitution and enforcing these rights, as required by Article 32, cannot be forgotten., Supreme Court of India has previously utilised its power under Article 32 to issue directions or orders for the enforcement of fundamental rights. This power does not extend only to striking down an offending legislation but also to issuing substantive directions to give effect to fundamental rights, in certain situations. In Common Cause v. Union of India, a Constitution Bench of Supreme Court of India (of which Justice D. Y. Chandrachud was a part) found that the right to life, dignity, self‑determination, and individual autonomy meant that people had a right to die with dignity. Supreme Court of India delineated guidelines and safeguards in terms of which Advance Directives could be issued to cease medical treatment in certain circumstances. Similarly, in Vishaka (supra) Supreme Court of India issued guidelines for the protection of women from sexual harassment at the workplace. These guidelines were grounded in the fundamental rights to equality under Article 14, to practise any profession or to carry out any occupation, trade or business under Article 19(1)(g), and to life and liberty under Article 21. The decisions of Supreme Court of India in Common Cause (supra) and Vishaka (supra) are significant because Supreme Court of India issued directions for the enforcement of fundamental rights in the absence of a law which was impugned before it., The power of judicial review must be construed in terms of the Constitution of India and not in terms of the position of law in other jurisdictions. A common mistake in the legal community is to refer to the doctrines and decisions of other jurisdictions regardless of the context in which they arose. The jurisprudence of other countries undoubtedly facilitates an exchange of ideas and acquaints us with the best practices in the field. It illuminates the potential benefits and pitfalls of a particular approach and enables us to dwell on whether to accept and if we do so, whether to improve on that approach. However, a particular doctrine or legal standard ought not to be borrowed blindly. The first and foremost authority is the Constitution or any law in India. An appropriate tool of interpretation must be used to discern the law as laid down by the Constitution or by any statute, rule, or regulation. This precept applies with equal force to the question of judicial review in India. Judicial review has to be conscious of our own social and cultural milieu and its diversity., Parliament being sovereign in England, the courts of England do not have the power to strike down a statute as being contrary to its basic law. This status of affairs cannot, of course, be superimposed on the relationship between our legislative bodies and courts. In Powers, Privileges and Immunities of State Legislatures, In re (supra), Supreme Court of India held that the Constitution is supreme and sovereign in India and that legislative bodies in India are not sovereign in the same way as Parliament is in England. Hence, the limitations which apply to the Supreme Court of the United Kingdom while it conducts judicial review do not apply to Supreme Court of India. Similarly, the restrictions on judicial review in the United States of America cannot be imported without any regard to our Constitution., The Union of India relied on various decisions of the Supreme Court of the United States of America including the decisions in Day‑Brite Lighting Inc. v. Missouri and the dissenting opinion of Oliver Wendell Holmes, J. in Lochner v. New York for the proposition that Supreme Court of India would be in danger of becoming a super legislature if it decided the issues which arise in the present proceedings. This argument misses the crux of the matter. The Supreme Court of the United States of America established its power of judicial review in Marbury v. Madison. The text of the US Constitution does not vest their courts with this power, unlike in India. The Constitution of India expressly authorises judicial review. While doing this the Constitution confers broad powers on Supreme Court of India as discussed in the previous segment of this judgment. This being the case, it is injudicious to borrow from the jurisprudence of the US on judicial review, its boundaries, legitimacy, and the type of cases which warrant deference to legislative bodies. In State of Madras v. V. G. Row, a Constitution Bench of Supreme Court of India held: we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative Acts. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. Similarly, in Romesh Thappar v. State of Madras, Supreme Court of India held that there was no remedy in the US which was analogous to the one provided by Article 32 of the Constitution of India. Therefore, the contours of the power of Supreme Court of India to conduct judicial review must be construed in terms of the Constitution of India and not in terms of the position of law in other jurisdictions., The argument of the respondents that any decision by Supreme Court of India on this issue would be anti‑democratic is not an argument that is specific to the issues which have been raised before us in this batch of petitions. Rather, it is an argument which strikes at the legitimacy of the judicial branch. The argument that the decision of the elected branch is democratic and that of the judicial branch is not is premised on the principle of electoral representation. The proposition is that the exercise of the power of judicial review would constrain the right of citizens to participate in political processes. This is because courts are vested with the power to overturn the will of the people which is expressed through their elected representatives., This is a narrow definition of democracy, where democracy is viewed through electoral mandates and not in constitutional terms. Additionally, it overlooks the importance of a Constitution which prescribes underlying values and rules of governance for the sustenance of a democratic regime. If all decisions of the elected wing of the State are considered to be democratic decisions purely because of the manner in which it is vested with power, what then is the purpose of the fundamental rights and the purpose of vesting Supreme Court of India with the power of judicial review? Framing the argument on the legitimacy of the decisions of Supreme Court of India purely in terms of electoral democracy ignores the Constitution itself and the values it seeks to engender., Electoral democracy – the process of elections based on the principle of one person one vote where all citizens who have the capacity to make rational decisions (which the law assumes are those who have crossed the age of eighteen) contribute towards collective decision making – is a cardinal element of constitutional democracy. Yet the Constitution does not confine the universe of a constitutional democracy to an electoral democracy. Other institutions of governance have critical roles and functions in enhancing the values of constitutional democracy. The Constitution does not envisage a narrow and procedural form of democracy. When the people of India entered into a social contract in the form of a Constitution, they chose the conception of democracy which not only focused on rule by elected bodies but also on certain substantive values and on institutional governance. The Constitution defined democracy in terms of equal rights in political participation and of self‑determination., When democracy is viewed in this substantive and broad manner, the role of courts is not democracy‑disabling but democracy‑enabling. Much like the elected branch, the legitimacy of courts is also rooted in democracy. It is rooted in not operating in a democratic manner because if it was, then courts may be swayed by considerations which govern and guide electoral democracy. By vesting the judicial branch with the power to review the actions of other institutions of governance (including the legislature and the executive) on the touchstone of constitutional values, the Constitution assigns a role to the judiciary. The institutions of governance place a check on the exercise of power of the other institutions to further constitutional values and produce better, more democratic outcomes. Courts contribute to the democratic process while deciding an issue based on competing constitutional values, or when persons who are unable to exercise their constitutional rights through the political process knock on its doors. For instance, members of marginalized communities who are excluded from the political process because of the structural imbalance of power can approach the court through its writ jurisdiction to seek the enforcement of their rights., Is queerness un‑Indian? Who is an Indian? What practices are Indian? Queerness is a natural phenomenon which is known to India since ancient times. The question of whether homosexuality or queerness is unnatural is no longer res integra, in view of the decision in Navtej Singh Johar (supra) where Supreme Court of India held that it is innate and natural. The contention of the Union of India that heterosexual unions precede law while homosexual unions do not cannot be accepted in view of the decision in Navtej Singh Johar (supra) where Supreme Court of India held that queer love has flourished in India since ancient times., The respondents have also averred that homosexuality or gender queerness is not native to India. This contention does not hold any water. In India, persons with a gender queer identity who do not fit into the binary of male and female have long been known by different names including hijras, kothis, aravanis, jogappas, thirunambis, nupi maanbas and nupi maanbis. In fact, the term transgender person as it is understood in English or the third gender does not always fully or accurately describe the gender identity of those who are known by some of these terms. Additionally, the social structure of the communities of transgender persons in India is unique and does not mirror western structures. It is native to our country. The judgment of Supreme Court of India in NALSA (supra) also explored the presence of the transgender identity and other forms of gender queerness in Indian lore., In With Respect to Sex: Negotiating Hijra Identity in South India, Gayatri Reddy documents the different manifestations of kinship in hijra communities, including the guru‑chela (or teacher‑disciple) relationship, the mother‑daughter relationship, and the jodi (or bond) with a husband. She describes how many hijras enter into unions with men, who are referred to as their pantis. These unions span over many months or many decades, depending on the couple in question. Many men in such unions have made their natal families aware about their relationship with their partner, and in some cases, the hijras would sometimes meet their partner’s natal family. They sometimes referred to their relationship as one of marriage. Men also assaulted their partners and displayed other violent tendencies. Some hijras maintained contact with their biological family, most notably the mother. Although many hijras were in romantic, long‑lasting partnerships with men or in touch with their natal family, they considered other hijras as constituting their family as opposed to their pantis or their biological families., In many communities, hijras are customarily invited to auspicious events (such as the birth of a child) to bless the family in question. Like the English language, some English words employed to describe queer identities may have originated in other countries. However, gender queerness, transgenderism, homosexuality, and queer sexual orientations are natural, age‑old phenomena which have historically been present in India. They have not been imported from the West. Moreover, if queerness is natural (which it is), it is by definition impossible for it to be borrowed from another culture or be an imitation of another culture., Queerness is not urban or elite. The respondents, including the Union of India, have contended that homosexuality and queer gender identities or transgenderism are predominantly present in urban areas and amongst the elite sections of society. They assert that variations in gender and sexual identity are largely unknown to rural India and amongst the working classes. Nothing could be further from the truth. While they may not use the words homosexuality, queer, lesbian, gay or any other term which populates the lexicon of English‑speaking persons, they enter into unions with persons of the same sex as them or with gender‑queer persons; these unions are often long‑lasting, and the couple performs a marriage ceremony. The incidence of queerness amongst the rural and working‑class communities has been documented in academic scholarship as well as newspaper reports. In the absence of evidence aliunde, the details narrated in newspaper reports are not facts which are proved in terms of the Indian Evidence Act 1872. However, in cases such as the present one which require Supreme Court of India to examine social phenomena and their incidence, newspaper reports serve as a useful tool in the exercise of illuminating social realities., Supreme Court of India need look no further than the petitioners in this case to illustrate the point that queerness is neither urban nor elite: one of the petitioners grew up in Durgapur, West Bengal and Delhi and states that she came to terms with her sexuality when she was an adult. Another petitioner in the same case grew up in Varanasi, Uttar Pradesh and states that she knew that she was a lesbian from a young age; one of the petitioners hails from Muktsar, Punjab and happens to be OBC. Another petitioner in the same case happens to be Dalit. They come from working class backgrounds; another petitioner was born in Mumbai to Catholic parents. She attempted to die by suicide and later had to beg on the streets in order to survive.
id_851	4	Some petitioners before the Supreme Court of India are transgender persons and activists. One of them is a public personality, Akkai Padmashali, who hails from a non-English speaking, working-class background. At a young age she left home and worked as an assistant in a shop selling ceramics, but quit because she was unable to hide her true gender identity. Circumstances forced her to become a sex worker to sustain herself. Later she was awarded the Karnataka Rajyotsava Award, Karnataka’s second highest civilian award, for her contribution to social service. Another petitioner who is a transgender person was born in a family of coconut and betel-leaf farmers and later worked in a factory. In her case, too, circumstances forced her to become a sex worker. She is now a social activist. One of the petitioners is a lesbian who lives in Vadodara, Gujarat., Ruth Vanita, an academician, studied the history of queer marriage in India in her scholarly works. She narrates that she married a Jewish woman in 2000 with both Hindu and Jewish ceremonies. Her book titled Love’s Rite: Same-Sex Marriage in India and the West records numerous instances of queer unions and partnerships in India. These include: two young women who were classmates fell in love; one underwent sex reassignment surgery in 1989, they married each other, and despite a complaint by the father of one partner, the couple lived together. In 1993 two women in Faridabad married each other in a Banke Bihari temple with a priest officiating. In the same year two men, one Indian and the other American, married according to Hindu rites in a ceremony in New Delhi. In 2004 a twenty-four-year-old Dalit woman and a twenty-two-year-old Jat woman travelled to Delhi and performed the rites of marriage in a temple, despite family opposition. Two young women from Bhopal, whose parents were construction workers, ran away in 2004 and told the police they would live together regardless of attempts to separate them. Also in 2004 a twenty-one-year-old Christian woman and a twenty-three-year-old Hindu woman from a southern state declared their lifelong commitment after a tabloid alleged they were lesbians. Two young Muslim men, aged twenty-two and twenty-eight, married in Ghaziabad, Uttar Pradesh; their friends and family physically assaulted them but they continued to intend to live together. Two nurses in Patel Nagar, Delhi, met as students, fell in love, declared themselves life partners and lived together for fifteen years, with neighbours aware and unfazed., Other sources record varied instances of persons entering into atypical unions or expressing their homosexuality or gender identity. Two Adivasi women married according to the customs of their tribe in a small village in Koraput district, Orissa. A woman who was the daughter of a government school teacher and a woman whose father was a labourer garlanded each other in Hamirpur district, Uttar Pradesh, and sought to register their marriage at the local sub-registrar’s office after divorcing their husbands. Two women from Kanpur travelled to Delhi to marry each other. Young gay men in the small town of Barasat in West Bengal expressed their desire to be part of the queer community; one of them worked in a clerical job. The AIDS Bhedbhav Virodhi Andolan (AIDS Anti-Discrimination Movement) released a citizen’s report on the status of homosexuality in India, titled Less Than Gay (1991)., The report discusses arguments that had been put forth more than three decades ago about whether homosexuality is a Western concept or restricted to the socio-economically privileged classes. It asserts that the queer community is not a coherent, easily definable group. The report details the lived experiences of gay men and lesbian women collected through interviews, telling the stories of a lesbian hostel warden, a gay teacher at a government polytechnic college in Madhya Pradesh, an auto-rickshaw driver in Pune, two male municipal sweepers in Mumbai who lived together and loved each other, and a gay man from a slum in Delhi., Ruth Vanita also documents attempted suicides and suicides arising from the difficulties faced by persons in queer relationships. In 1980 Jyotsna and Jayshree died by suicide after jumping in front of a train in Gujarat, explaining in a letter that they could not endure living apart after their marriages to men. Gita Darji and Kishori Shah, nurses, died by hanging in a village in Gujarat in 1988. In January 2000 two young women named Bindu and Rajni were stopped from eloping; a few days later they jumped into a granite quarry in Kerala and died, leaving notes stating that it was impossible for them to live together., Maya Sharma’s Loving Women: Being Lesbian in Unprivileged India (Yoda Press, 2006) provides accounts of various persons, mostly women, in same-sex or queer relationships, based on detailed interviews. The book aims to dispel the myth that lesbians in India are all urban, Westernised and from upper or middle classes. It highlights that public discourse has not created space for voices of LGBTQ persons who belong to marginalized communities. The subjects come from diverse religions and communities and work as domestic workers, factory workers, construction labourers, Home Guards, among other professions., The discussion in this segment does not exhaust the rich history of LGBTQ persons in India, but even the limited literature makes it clear that homosexuality or queerness is not solely an urban concept nor restricted to upper classes or privileged communities. Queer people may come from villages, small towns, semi-urban and urban spaces, and may belong to any caste or economic location. It is not only the English-speaking, white-collar professional in a metropolitan city who can claim a queer identity, but also a woman who works on a farm in an agricultural community. Persons may or may not identify with labels such as queer, gay, lesbian, or trans, either because they speak languages other than English or for other reasons, but many Indians are gender-queer or enter into same-sex relationships., The native way of life gradually changed with the entry of the British, who brought their own sense of morality and laws. The Supreme Court of India discussed the legal legacy of the colonizers in National Legal Services Authority and Navtej Singh Johar. Section 377 of the Indian Penal Code criminalised queer sexual acts, imposing British morality on the Indian cultural landscape. The British also enacted the Criminal Tribes Act, which provided for the registration, surveillance and control of certain criminal tribes and eunuchs. Part II of the Act regulated transgender persons (referred to as eunuchs) and subjected them to indignities such as mandatory medical examination, penalties for dressing like a woman, and invalidation of their wills. Although the Criminal Tribes Act was repealed after independence, its underlying prejudices persist in various central and state enactments on habitual offenders., The criminalisation of the LGBTQ community and the consequent prosecution under these laws, coupled with the violence enabled by them, drove large sections of the community underground. Society stigmatised any sexual orientation that was not heterosexual and any gender identity that was not cisgender. Persons with atypical gender identity or sexual orientation were compelled to conceal their true selves, leading to a shrinking public presence even as homophobia and transphobia flourished. Many queer persons continued to live visibly, such as hijras who often had no choice but to be public. Others expressed their orientation only within the privacy of their homes or led double lives, presenting as heterosexual in public while revealing their true orientation to a select few. Some entered into lavender marriages or front marriages, which are marriages of convenience meant to conceal the sexual orientation of one or both partners., It is evident that queerness is not of foreign origin; many shades of prejudice in India are remnants of a colonial past. Colonial laws and convictions engendered discriminatory attitudes that continue today. Those who argue that queerness is borrowed from foreign soil point to the recent increase in expression of queer identities as evidence of novelty. However, this visibility is a re-assertion of an age-old identity, facilitated by the establishment of a democratic nation-state and the nurturing of democratic values over six decades, which have enabled more queer persons to exercise their inherent rights. The constitutional guarantees of liberty and equality have gradually become available to an increasing number of people., The respondents argued that a union between two persons of the same sex is not Indian. To determine whether a practice is Indian, one must consider that India is a diverse country with twenty-eight states, eight Union Territories, a population of over one billion, twenty-two recognised languages, numerous other languages, at least eight religions, tribal and non-tribal populations, and varying cultures. A practice is Indian when it is present in India, takes place here, or is practised by Indian citizens, regardless of whether it is ancient or recent. The constitutional guarantee does not fade based on the level of acceptability of a particular practice. Sexual and gender minorities are as Indian as cisgender and heterosexual citizens., There is no universal definition of marriage. Marriage is understood differently in law, religion and culture. Some religions consider marriage a sacrament, others a contract. The law defines the conditions for a valid marriage, such as minimum age, consent of both parties, and absence of prohibited relationships. For example, Section 27 of the Special Marriage Act provides that a party may present a petition for divorce on the ground that the other party is undergoing a sentence of imprisonment for seven years or more, but it does not automatically render a marriage void. Once a couple marries, they give meaning and content to their relationship. Marriage is a voluntary union of mind, body and soul, signifying a deep and abiding commitment, emotional, financial and spiritual support, companionship and love. It is a gateway to the creation of a family through childbearing and childrearing, although procreation is not a precondition. A married couple may not have biological children because of age, fertility issues or personal choice, and may use assisted reproductive technologies, surrogacy or adoption. Sexual relations and procreation are not the exclusive foundations of marriage; emotional and associational components are equally important., The conception of marriage is not static. Historically, practices such as sati, widow remarriage and child marriage have evolved. Sati, though never universal, was once permitted and intertwined with marriage; the Commission of Sati (Prevention) Act 1987 now criminalises attempts to commit or abet sati. Widow remarriage was traditionally prohibited for women of dominant castes, but reformers such as Mahatma Jyotirao Phule, the Brahmo Samaj, Ishwar Chandra Vidyasagar and Tarabai Shinde advocated change, leading to the Hindu Widows Remarriage Act 1856. Child marriage and the age of consent have also undergone significant legal reforms, reflecting changing social attitudes.
id_851	5	A discussion of the history of marriage in India would be incomplete without reference to child marriage and the legal age of consent. Child marriage was widespread in most religions and communities. The age of consent for girls was fixed at ten years in 1860. In 1890, a thirty‑five‑year‑old man called Hari Mohan Maity caused the death of his ten‑year‑old wife Phulmoni Das through violent sexual intercourse with her. While this would be considered rape and aggravated penetrative sexual assault of a child by prevailing legal standards, the Supreme Court of India ruled that Hari Mohan Maity had a legal right to engage in sexual relations with Phulmoni Das because she was above the age of consent at the time. The age of consent for girls was then raised to twelve. Decades later, the Child Marriage Restraint Act 1929 raised the minimum age of marriage for girls from twelve to fourteen. In 1949, the criminal law of the country stipulated that the age of consent for girls was fifteen years. The Hindu Marriage Act set the minimum age of marriage at fifteen for girls and eighteen for boys. In 1978, the Hindu Marriage Act was amended to raise the minimum age of marriage to eighteen for girls and twenty‑one for boys. The Prohibition of Child Marriage Act 2006 provided that child marriages would be voidable at the option of the contracting party who was a child at the time of the marriage and criminalised the act of performing, conducting, directing, abetting, promoting or permitting a child marriage., The Protection of Children from Sexual Offences Act 2012 was enacted about a decade ago. It is a child‑specific legislation which inter alia criminalises sexual abuse in its various forms. A child is defined as any person below the age of eighteen years. In Independent Thought v. Union of India, the Supreme Court of India was confronted with the inconsistency between the Protection of Children from Sexual Offences Act, which criminalised sexual relations with a child, and Exception 2 to Section 375 of the Indian Penal Code, which provided that sexual intercourse by a man with his wife was not rape if the wife was above fifteen years of age. As a consequence of this inconsistency, a person could have been guilty under the Protection of Children from Sexual Offences Act but not under Section 375 of the Indian Penal Code. The Supreme Court of India held that Exception 2 was violative of Articles 14, 15 and 21 of the Constitution and was an affront to constitutional morality. The Court read down Exception 2 as exempting a man from the offence of rape if his wife was above the age of eighteen. Currently, it is a punishable offence for a man to have sexual intercourse with a child, regardless of whether that child is his wife., Acts which were once considered the norm in a marriage are no longer countenanced by the law. The giving and taking of dowry, which was and continues to be prevalent in most communities, was criminalised by the enactment of the Dowry Prohibition Act 1961. Prior to its enactment, there was no penalty in law for demanding, giving, or accepting dowry. The family of the bride was often expected to pay large sums of money or present valuable gift items to the groom or his family as a condition of the marriage, leading to harassment and violence against the maternal families of innumerable women. Parliament inserted Section 498A of the Indian Penal Code in 1983, which criminalises the act of a husband or his relative subjecting his wife to cruelty. In many cases, the matrimonial families murdered the woman because of insufficient dowry or unmet demands, leading to the amendment of the Indian Penal Code in 1986 to include Section 304B, which criminalises dowry death. These provisions, however, did not adequately account for gender‑based violence in a marriage unconnected to dowry. About two decades ago, the Protection of Women from Domestic Violence Act 2005 was enacted to protect the rights of women who were survivors or victims of domestic violence, either by their husbands or the relatives of their husbands. Prior to the enactment of the law, intimate partner violence which women are generally subject to was not criminalised., Inter‑caste and inter‑faith marriages were uncommon in the colonial era and established customs or usages did not govern such marriages. Society subjected those who entered into inter‑caste and inter‑faith marriages to discrimination and violence. There was initially no legal framework governing such marriages. The Special Marriage Act 1872 was enacted to enable the solemnisation of marriages independent of personal law. If two people belonging to different religions wished to marry, they were each required to renounce their respective religion in order to avail its provisions. Parliament was conscious of the limiting and restrictive character of the Special Marriage Act 1872 and enacted the Special Marriage Act in 1954, which was a more permissive legislation allowing any two persons to marry without having to repudiate their respective religions. By stipulating that a marriage between any two persons may be solemnised under this Act, the legislation also set out a mechanism for inter‑caste marriages to be solemnised independent of personal law., The families or relatives of couples who entered into inter‑caste or inter‑faith marriages would frequently inflict violence upon them, even to the extent of brutally murdering them. Such murders are colloquially referred to as honour killings and are more accurately termed caste‑based murders. Couples who face this opprobrium have approached the Supreme Court of India seeking protection from their families and others who oppose their relationship, and the Court has seized cases arising from violence in this context. In Shakti Vahini v. Union of India, the Supreme Court of India took note of the violence against couples in inter‑caste and inter‑faith marriages and directed the state machinery to take preventive as well as remedial measures to protect such couples who wished to marry or who were recently married., Section 10 of the Indian Divorce Act 1869, which is applicable to Christians, previously permitted the husband to file a petition for divorce on the ground that his wife was guilty of adultery, while the wife could file for divorce on the ground of her husband's adultery only in conjunction with certain other grounds such as conversion to another religion or bigamy. In Mary Sonia Zachariah v. Union of India, the Kerala High Court struck down a part of Section 10 and permitted Christian women to seek divorce on the ground of adultery alone. Parliament amended the Indian Divorce Act 1869 in 2001 by substituting Section 10 with a provision that made various grounds of divorce, including adultery, available to both the husband and the wife equally, and introduced Section 10A, which permitted Christian marriages to be dissolved by mutual consent for the first time. In terms of Hindu customary law, certain communities permitted divorce whereas others did not. The Hindu Marriage Act extended the right of divorce to all Hindus when it was enacted in 1955. In 1976, Section 13B was introduced in the Hindu Marriage Act, permitting Hindus to dissolve their marriage by mutual consent for the first time. In Shilpa Sailesh v. Varun Srinivasan, the Supreme Court of India held that it has the authority to grant divorce when there is a complete and irretrievable breakdown of marriage, notwithstanding the opposition of one of the parties to the dissolution. Islamic customary law permitted divorce in certain situations and through certain modes. One of the modes was talaq‑e‑biddat or triple talaq by which the husband could instantly, irrevocably, and unilaterally divorce his wife. In Shayara Bano v. Union of India, the Supreme Court of India held that the practice of severing the marital bond through the mode of talaq‑e‑biddat was unconstitutional., Mahatma Jyotirao Phule, Ishwar Chandra Vidyasagar, Pandita Ramabai, Tarabai Shinde, Raja Ram Mohan Roy and countless others voiced their opposition, to varying degrees and effects, to one or the other practice discussed in this segment. Their views were met with fierce opposition on the ground that the religious and cultural values of the subcontinent did not permit a departure from tradition. In some cases, the opposing groups relied on scriptures to justify their respective stances. When Dr. B. R. Ambedkar introduced the Hindu Code Bill, many opposed the provision for divorce on the ground that the Hindu religion did not envisage divorce because it was a sacrament. It is seen that there are competing understandings of the institution of marriage at every stage of its evolution, yet the understanding grounded in justice and the rights of the people has prevailed. Injustice in the law in relation to the institution of marriage, such as demands for dowry, dowry death, or child sexual abuse, is slowly but surely being eradicated. While these practices were once permitted and encouraged, they are currently not only frowned upon but also criminalised., This walk through history is not an attempt by the Supreme Court of India to take on the mantle of historians. The discussion demonstrates that the institution of marriage has not remained static or stagnant; change characterises the institution. All social institutions transmogrify with time and marriage is no exception. From sati and widow remarriage to child marriage and inter‑caste or inter‑faith marriages, marriage has metamorphosed. The institution as we know it today would perhaps be unrecognisable to our ancestors from two hundred years ago. Despite vehement opposition to any departure from practice, the institution of marriage has changed. These changes were brought about largely by acts of Parliament or the legislatures of the states. While the passage of many laws was preceded by significant social activism, it was the legislature which ultimately responded to the call for change. Even as Parliament and, in some cases, the courts expand the liberties of the people to conduct their lives in a manner they see fit, many sections of society remain opposed to these changes. Regardless of such opposition, the institution of marriage has undergone a sea change., From the discussion in this segment of the judgment, it is evident that the institution of marriage is built and rebuilt by societies, communities, and individuals. A universal conception of marriage is not present nor is the conception of marriage static over time. The only facet of marriage which is constant across religion, community, caste, and region is that the couple is in a legally binding relationship that recognises an emotional bond of togetherness, loyalty and commitment. The law recognises the commitment that the couple has for one another by regulating the institution of marriage and conferring certain rights and privileges on them., In Shafin Jahan, a three‑Judge Bench of the Supreme Court of India held: 'Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences.', The consequence of the judgment of the Supreme Court of India in National Legal Services Authority and Navtej Singh Johar is that the members of the queer community are no longer second‑class citizens of our country. Their individual and group rights are on par with any other citizen. Their gender identity or sexual orientation cannot be a ground on which they are discriminated against., Mr. Tushar Mehta, the learned Solicitor General, submitted during the course of his arguments that two persons from the LGBTQ community have the right and liberty to celebrate their union and label the union with any term they see fit, including marriage. The Union of India does not, however, wish to accord legal recognition to such ceremonies and unions. If the marriages of queer people were to be recognised by law enacted by Parliament, it would be the next step in its progression., One of us (Justice D. Y. Chandrachud), in Navtej, held that the members of the LGBTQIA+ community have a right to navigate public spaces without the interference of the State. The petitioners in that case seek the active involvement of the State in their relationships through conferring recognition. Through marriage, the State confers legal recognition to a relationship between two heterosexual persons, recognising that marriage is not merely a lifestyle but an important constituent unit for the sustenance of social life. The State confers innumerable benefits, both tangible and intangible, to a family unit constituted by marriage. The petitioners seek that the State grant legal recognition to the relationship between non‑heterosexual persons in the form of marriage because they are otherwise excluded from the express and implied benefits of marriage. They claim that non‑heterosexual unions have not been able to attain social sanctity because their relationship is invisible in the eyes of the law., The State first prescribes conditions with respect to who can enter into a valid marriage; secondly, it regulates the marital relationship during its sustenance; and thirdly, it regulates the repercussions of the breakdown of a marriage. The State prescribes various conditions for the solemnisation of a valid marriage, which inter alia include consent, a minimum age requirement, and whether the parties are within the degrees of prohibited relationship. The law regulates the conduct of the parties to a marriage in numerous ways. For example, the law penalises the husband and his family members if they treat the wife cruelly, including demands for dowry. Similarly, the Protection of Women from Domestic Violence Act 2005 penalises persons for domestic violence in the course of a domestic relationship, which has been defined to include marriage. The grounds for divorce prescribed in various marriage laws also regulate the conduct of parties because their actions during the sustenance of a marriage may be a ground for legal dissolution. Valid grounds for divorce include sexual relationship outside of marriage, desertion, or cruelty. The State also regulates the relationship after divorce by prescribing the payment of maintenance. Under the Special Marriage Act, the wife can claim alimony or maintenance, and under the Hindu Marriage Act, both the husband and the wife can claim maintenance. The above discussion elucidates that the State plays a crucial role in regulating marriage., Marriage was earlier a purely social institution unregulated by the State. The State began to regulate personal relationships for two prominent reasons. The first reason was to regulate the social order. The State regulated social order by first regulating the sexual conduct of persons through marriage, and second by prescribing a legal mechanism for the devolution of property based on the legitimacy of the heir. With respect to the first reason, the State used marriage as a tool to regulate sexual behaviour. The State prescribed social rules through law by devising marriage as an exclusive relationship. Engaging in sexual conduct outside of marriage is a ground for divorce under personal marriage laws and the civil marriage law. It is crucial to note that impotency, not sterility, is a ground for declaring a marriage void, emphasising the centrality of sexual relations in a marriage., The State also intended to regulate social order by placing marriage at the centre of property devolutions. Ownership and control over property was viewed as important for the establishment of a just social order. Rules for the devolution of property are premised on marriage in modern societies. Legal rules for the devolution of title have two primary components: how the title over the property is secured and how the title further devolves in case of intestate succession., Brian H. Bix, in the paper 'State Interest and Marriage', argues that there is sufficient material to establish that the State regulates marriage to respond to the special interests of specific social groups. It has been argued that the propertied classes wanted to reduce uncertainty about succession, and noble families desired to prevent their children’s marriages with partners of lower social status. Irrespective of whether the State regulated marriage to further entrench the existing social order or to transform it based on constitutional values, property plays a prominent role in the regulation of marriage., The second reason for the State to be involved in the regulation of personal relationships was to remodel society, premised on the constitutional value of equality. A constitutional order premised on equality, dignity, and autonomy would be unworkable if personal relationships, the building blocks of a just society, were grounded on values antithetical to the Constitution. The Constitution declares that there shall be no discrimination on the grounds of religion, race, caste, and sex. It would be unjust if, despite these guarantees, inter‑faith and inter‑caste relationships bore the brunt of ostracisation, honour killings, or caste‑based murders, or if women, despite constitutional guarantees, suffered patriarchal attitudes in the private sphere., The State regulates marriage to create a space of equal living where neither caste, religion, nor sex prevent any person from forming bonds for eternity nor contribute to the creation of an unequal relationship. The State’s regulation recognises that, although a married couple is a unit for the purposes of law, the parties retain their individual identity and are entitled to constitutional guarantees. For example, one of the parties need not necessarily be at fault for the couple to secure divorce; our laws recognise divorce by mutual consent, grounded on the principle of autonomy., The State’s regulation of marriage has opened up space for inter‑caste and inter‑faith marriages and secured prominent constitutional rights. It also contributes towards factual equality where women are empowered to defy patriarchal notions of gender roles in daily life. The impact can be seen when a wife chooses to retain her surname after marriage or when partners equally contribute towards raising their child., The State recognises that a Constitution which upholds freedom, liberty, and equality cannot permit the sustenance of a feudal institution undermining the rights of marginalised communities. Thus, it is important to view the State’s involvement in regulating the institution of marriage in terms of its transformative potential in ensuring equality in the personal sphere and in family life., Having discussed why and how the State regulates the institution of marriage, it is important that the Supreme Court of India recognise the effect of such regulation. Apart from the benefits of the State’s involvement in creating a social order consonant with constitutional principles, there are other benefits that can be segregated into tangible and intangible benefits., The intangible benefits of marriage are guided by hidden law. Hidden law comprises norms and conventions which organise social expectations and regulate everyday behaviour. The benefits conferred by a legal institution must not be measured solely in terms of the benefits conferred by the law; they must also include the benefits conferred by hidden law. One such benefit is the social validity and recognition which marriage as an institution confers upon relationships., It is pertinent to note that the State only regulates heterosexual marriages. The law confers numerous rights and benefits which flow from a marriage but ignores the existence of any other form of relationship. The invisibilisation of relationships which are not in the form of marriage bestows sanctity and commitment to marriages while strengthening the perception that any other form of relationship is fleeting and non‑committal. The Domestic Violence Act has come the closest to recognising the existence of relationships in forms other than marriage. The Act defines domestic relationship as a relationship between two persons who live together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage. In Indra Sarma v. V. K. V. Sarma, the Supreme Court of India considered whether live‑in relationships can be considered a relationship in the nature of marriage. A two‑Judge Bench observed that a relationship in the nature of marriage is distinct from a marriage and that factors such as duration of the relationship, shared household, pooling of resources, financial arrangements, domestic responsibilities, sexual relationship, procreation, socialisation in public, and the intention and conduct of the parties must be considered., The observations of the Supreme Court of India in Indra Sarma elucidate that a relationship is in the nature of marriage only when an inference can be drawn from the surrounding circumstances that it will be a long‑lasting relationship. Thus, while there is a positive presumption that marriages are long‑lasting, there is also a negative inference that all other relationships which are not in the form of marriage are short‑lived. The observations also indicate that marriage has always been understood in terms of stereotyped traditional gender roles, with the wife entrusted with household chores and the husband expected to be the breadwinner. The public‑private divide is stark, and women’s contribution to running the household is diminished. Although the State, by regulating marriage, seeks to redefine heterosexual relationships by emphasising the autonomy of both parties, it does not recognise or promote the gendered division of labour in the home., The intangible benefits of marriage extend beyond the conferment of social recognition to the couple; they also confer benefits which cannot be measured in tangible form to the children born of the marital relationship.
id_851	6	The law confers on children who are born of wedlock benefits in succession. In addition, the law’s recognition of the concepts of legitimate and illegitimate children has social repercussions in that illegitimate children are shunned by society. These intangible benefits of marriage indicate that society regards marriage as the primary and sole unit through which familial relationships can be forged. As Chief Justice Marshall observed in Goodridge v. Department of Public Health, in a very real sense there are three partners in a civil marriage: two willing partners and an approving State., There are numerous tangible benefits conferred by the State which flow from marriage and touch upon every aspect of life. Tangible benefits conferred by marriage can be classified into (i) matrimonial and child‑care related benefits; (ii) property benefits; (iii) monetary benefits; (iv) evidentiary privilege; (v) civic benefits; and (vi) miscellaneous benefits., Matrimonial and child‑care related benefits include the provisions of permanent alimony and maintenance, maintenance if a person with sufficient means refuses to maintain his wife, the right of a couple to adopt a child, and the right to avail surrogacy. Property benefits would include securing a share in case of intestate succession. Legislation such as Section 16 of the Hindu Marriage Act has conferred legitimacy on children born from void or voidable marriages with a consequential right to property of the parents. Monetary or financial benefits which flow from marriage include the provisions to nominate a family member for the payment of gratuity, to receive funeral expenditure for the deceased spouse, to receive medical benefits for the spouse of the insured person, and to claim provident fund as the dependent of a deceased spouse. The Income Tax Act 1961 provides tax benefits for payments made on behalf of the spouse, for example Section 80C permits deduction of insurance premium paid for the spouse’s life‑insurance policy and Section 80D permits deduction of premium for the spouse’s health insurance., Evidentiary privilege includes the privilege accorded to communications during marriage under the Indian Evidence Act 1872. Civic benefits include the provision to apply for citizenship or to become an overseas citizen of India by virtue of the spouse’s citizenship. Miscellaneous benefits include the recognition of a spouse as a near relative for the purpose of the Transplantation of Human Organs and Tissues Act 1994., It is important to recall the submission made by the learned Solicitor General that even today, as the law exists, there is no prohibition against two queer persons holding a marriage ceremony. However, they would not be recognised as married partners by the State and non‑State entities for the purposes of the law. The non‑recognition of non‑heterosexual marriages denies the petitioners the social and material benefits which flow from marriage, which capture the true essence of marriage. Access to the institution of marriage is crucial to individual self‑definition, autonomy, and the pursuit of happiness because of these expressive and material benefits., Before we embark on an analysis of whether the Constitution recognises the right to marry, it is imperative to discuss how the courts recognise unenumerated rights or derivative rights. The Ninth Amendment to the United States Constitution states that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. Although the Indian Constitution does not contain such a provision, it is implied that the rights enumerated in Part III are not exhaustive. The fundamental rights recognised in Part III are identified at a high level – equality, liberty, and expression – and the courts, while determining the scope of an enumerated right, lay down its facets and conceptions. For example, courts have held that the true essence of the right to equality is substantive equality rather than formal equality, and that the right to life and liberty under Article 21 would be obscure if other crucial facets of liberty are not recognised., Fundamental rights are characterised as positive rights and negative rights. Negative rights involve freedom from governmental action, whereas positive rights place a duty on the State to provide individuals or groups with benefits they would not be able to access by themselves. Indian jurisprudence on the scope of fundamental rights can be divided into two thematic facets. In the first facet, the distinction between negative and positive rights faded with the harmonious reading of fundamental rights and Directive Principles of State Policy by the courts. In Unnikrishnan v. State of Andhra Pradesh, the Supreme Court of India held that the Constitution guarantees a fundamental right to education, tracing the right to Article 21 and the Preamble, and limited the scope of the right to free education for all children until they complete the age of fourteen years., In the second facet, the courts read fundamental rights to include both negative and positive postulates independent of the Directive Principles. Chief Justice Y.V. Chandrachud, writing for the majority in Minerva Mills v. Union of India, observed that fundamental rights deal with both negative and positive postulates. In Justice K.S. Puttaswamy (9J) (supra), a nine‑Judge Bench of the Supreme Court of India held that the Constitution guarantees the right to privacy, which includes both negative and positive dimensions. The negative dimension consists of the right to be left alone, and the positive dimension places a duty on the State to adopt measures for protecting and safeguarding individual privacy., The learned Solicitor General advanced two arguments: (i) intimate relationships, whether between homosexual or heterosexual couples, cannot be subject to State regulation because they fall within the intimate zone of privacy; and (ii) the State regulates heterosexual marriages only because there is a public interest in sustaining the human population through procreation. To determine whether the State has a duty to confer recognition upon all relationships, the Supreme Court of India must first delineate the contours of State regulation of intimate relationships vis‑à‑vis privacy concerns., The Supreme Court of India, in Justice K.S. Puttaswamy (9J) (supra), referred to a typology of privacy that classifies privacy into nine categories. The intimate zone of privacy subsumes spatial privacy (the freedom to be left alone) and decisional privacy (the freedom of self‑development). The formation of human relationships falls within the intimate zone because relationships are relegated to the sphere of the home and involve intimate choices. This zone is shielded from State regulation because decisions such as choice of partner or procreation are private activities exercised in autonomy., It must be noted that the Indian Constitution does not recognise family or partnerships as a unit for securing rights. For example, the Irish Constitution recognises the family as a natural unit of society and a moral institution possessing inalienable rights, whereas the Indian Constitution does not promote a framework where the rights of a family are given precedence over the individual rights of its members., Relegating actions to the private zone has certain shortcomings. Classifying certain activities as private protects them from State regulation, which can leave disadvantaged parties unprotected. In relationships characterised by unequal power structures, the more powerful party may gain immunity from scrutiny. Consequently, the State must assess whether its interest in democratising the private space overrides privacy interests in a given situation. The State has identified specific areas where the interest in democratising the private space overrides privacy, for example, the regulation of relationships in the nature of marriage through the Protection of Women from Domestic Violence Act, which defines a domestic relationship as a relationship between two persons who live together in a shared household and are related by marriage, a relationship in the nature of marriage, adoption, or consanguinity., The Supreme Court of India has recognised the right to marry in several judgments. In Shafin Jahan (supra), the Court set aside a Kerala High Court order declaring the marriage void and held that the choice of a partner is integral to Article 21 of the Constitution. The Court observed that the absolute freedom to choose a life partner is not affected by matters of faith and that neither the State nor the law can dictate a choice of partners. In Shakti Vahini (supra), the Court directed State Governments and the Central Government to take steps to combat honour crimes and observed that the ability of an individual to make choices is an inextricable part of dignity, and that two adults who choose to marry of their own volition have a right to do so. In Justice K.S. Puttaswamy (9J) (supra), Justice Nariman noted that the right to privacy extends to personal choices such as the right to abort a fetus and the right of same‑sex couples to marry. In Navtej Singh Johar (supra), the Court decriminalised homosexuality but did not expressly hold that the Constitution recognises a right to marry; however, the Court affirmed that an individual has a right to a union encompassing physical, mental, sexual or emotional companionship under Article 21.
id_851	7	The law prescribes certain essential conditions for a valid marriage. In both these cases, the Supreme Court of India dealt with situations where State or non‑State actors prevented a couple which was otherwise entitled to marry, from marrying. In the case of Shafin Jahan (supra), the restriction was sought to be imposed because the partners belonged to different religions and in Shakti Vahini (supra), the Supreme Court of India dealt with the issue of restraints placed by the society on the exercise of a person's right to marry a person of a different caste and religion. In Shafin Jahan (supra) the Supreme Court of India held that religion and caste cannot be impediments in the exercise of a person's right to choose whom to marry. In Shafin Jahan (supra) the Supreme Court of India held that no State or non‑State entity can interfere with their right to marry a person of their choice., Neither the majority in Justice K.S. Puttaswamy (9J) (supra) nor the majority in Navtej (supra) hold that the Constitution guarantees the right to marry. Moreover, the opinion of Justice Nariman in Justice K.S. Puttaswamy (9J) (supra) only made a passing reference to the right to marry. It did not trace the right to marry to any of the entrenched fundamental rights nor did it comment on the scope of such a right. In Justice K.S. Puttaswamy (9J), the issue before the Supreme Court of India was whether the Constitution recognises a right to privacy. Thus, this case did not address the issue of whether the Constitution recognises the right to marry. It now falls upon the Supreme Court of India for the first time to decide if the Constitution recognises such a right., There is no fundamental right to marry. The petitioners relied on the judgment of the United States Supreme Court in Obergefell (supra) in which the right to marry was recognised as a fundamental right. In Obergefell (supra), the Supreme Court of the United States held that the Fourteenth Amendment of the Constitution of the United States imposes a positive obligation on the State to license a marriage between two people of the same sex. In Michigan, Kentucky, Ohio, and Tennessee, marriage was defined as a union between one man and one woman. The petitioners (who were same‑sex couples) claimed that their exclusion from the institution of marriage violated the Fourteenth Amendment of the US Constitution. The petitioners filed suits in US district courts in their home States. The district courts ruled in their favour. On appeal, the United States Court of Appeals consolidated the cases and reversed the judgment of the District Court holding that the State has no constitutional obligation to license same‑sex marriages or to recognise same‑sex marriages performed out of State., The issue before the US Supreme Court was not whether the Constitution recognises the right to marry but whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Various decisions of the US Supreme Court had already recognised the right to marry. Justice Kennedy (writing for the majority) observed that the right to marry consists of the following four components: the right of choice; the protection of intimate association by supporting the union of two persons; safeguards for children and families; and a cornerstone of social order because marriage is the basis for governmental rights, benefits, and responsibilities., The opinion of the majority held that the components of marriage are not exclusive to heterosexual couples. Thus, the State by not recognising a same‑sex union (which is legal) and by not granting benefits which accrue from a marriage was held to be treating same‑sex couples unequally, violating the equal protection clause. Section 1 of the Fourteenth Amendment to the US Constitution states that no State shall deprive any person of life, liberty, or property without due process of law and equal protection of the laws. In Loving v. Virginia, 388 U.S. 1 (1967), the US Supreme Court invalidated bans on inter‑racial unions holding that marriage is one of the vital personal rights essential to the orderly pursuit of happiness by free men; in Turner v. Safley, 482 U.S. 78 (1987) the US Supreme Court held that the right to marry was abridged by regulations limiting the privilege of prison inmates to marry., Earlier judgments of the US Courts had held that marriage is a civic right because it is fundamental to existence and survival, is part of the fundamental right to privacy, and essential to the orderly pursuit of happiness. It was also held that without the right to marry, one is excluded from the full range of human experience and is denied full protection of the laws for one's avowed commitment to an intimate and lasting relationship. The jurisprudence which has emanated from the US Courts indicates that the right to marry is recognised as a fundamental right because of the benefits (both expressive and material) attached to it., Entry 5 of the Concurrent List of the Seventh Schedule to the Constitution of India grants both the State legislature and Parliament the power to enact laws with respect to marriage. The provision reads as follows: \Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.\ In pursuance of the power conferred by Articles 245 and 246 read with Entry 5 of the Concurrent List, Parliament has enacted laws creating and regulating the socio‑legal institution of marriage. The State legislatures have made amendments to such laws with the assent of the President, since the subject of marriage is in the Concurrent List. The petitioners seek that the Supreme Court of India recognise the right to marry as a fundamental right. As explained above, this would mean that even if Parliament and the State legislatures have not created an institution of marriage in exercise of their powers under Entry 5 of the Concurrent List, they would be obligated to create an institution because of the positive postulate encompassed in the right to marry. This argument cannot be accepted., As explained in the previous section, the State through the instrument of law characterises marriage with two constituent elements: the expressive component and the material component. Marriage may not have attained the social and legal significance it currently has if the State had not regulated it through law. Thus, while marriage is not fundamental in itself, it may have attained significance because of the benefits which are realised through regulation., The Supreme Court of India in Justice K.S. Puttaswamy (9J) (supra) while holding that privacy is a fundamental right was not guided by the content given to privacy by the State. The Supreme Court of India was of the opinion that if the right to privacy is not secured, the full purport of the rights entrenched in the Constitution could not be secured. Similarly, the Supreme Court of India in Unnikrishnan (supra) held that the right to education is a fundamental right. The right to education was derived from the provisions of the Directive Principles of State Policy and their centrality to development of an individual. Entry 25 of the Concurrent List authorises Parliament and State legislatures to enact laws on education. The State in pursuance of this power has enacted numerous legislations relating to education such as laws establishing and regulating universities and colleges. However, the right to education was held to be a fundamental right, not because of any statute or law but because of its centrality to the values that the Constitution espouses. The arguments of the petitioners that the Constitution recognises a right to marry is hinged on the meaning accorded to marriage by statutes, which cannot be accepted., The Constitution does not expressly recognise a fundamental right to marry. Yet it cannot be gainsaid that many of our constitutional values, including the right to life and personal liberty, may comprehend the values which a marital relationship entails. They may at the very least entail respect for the choice of a person whether and when to enter upon marriage and the right to choose a marital partner., The scheme of the Special Marriage Act (SMA) was enacted to provide a special form of marriage for couples belonging to different religions and castes. Section 4 of the SMA prescribes conditions relating to the solemnisation of special marriages. Notwithstanding anything contained in any other law for the time being in force relating to the solemnisation of marriages, a marriage between any two persons may be solemnised under this Act, if at the time of the marriage the following conditions are fulfilled, namely: (a) neither party has a spouse living; (b) neither party (i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (iii) has been subject to recurrent attacks of insanity; (c) the male has completed the age of twenty‑one years and the female the age of eighteen years; (d) the parties are not within the degrees of prohibited relationship: Provided that where a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnised, notwithstanding that they are within the degrees of prohibited relationship., Section 4(a) and (b) use the gender‑neutral word \party\. However, Section 4(c) stipulates that the male must have completed twenty‑one years and the female must have completed eighteen years. Section 4(d) stipulates that the parties should not be within the degrees of prohibited relationship. Section 2(b) defines degrees of prohibited relationship as follows: a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship., Part I of the First Schedule consists only of women's relationships with men, such as mother and daughter. Part II of the First Schedule consists only of men's relationships with women, such as father and son. The conditions stipulated in Section 4 when read with the definition of prohibited relationship in Section 2(b) limit the application of the SMA to heterosexual unions., Chapter IV of the enactment lays down the consequences of marriage under the SMA. Section 19 stipulates that the marriage solemnised under the SMA of any member of an undivided family who professes the Hindu, Buddhist, Sikh, or Jain religions shall be deemed to effect their severance from such family. Section 20 provides that subject to the provisions of Section 19, any person whose marriage is solemnised under this Act shall have the same rights and shall be subject to the same disabilities in regard to the right of succession as a person to whom the Caste Disabilities Removal Act 1950 applies. The Caste Disabilities Removal Act 1950 provides that any law or usage which inflicts the forfeiture of rights or property, or which would affect the right of inheritance because of renouncing religion, having been excluded from the communion of religion, or being deprived of caste shall cease to be enforced by law. Thus, subject to Section 19 of the Act, a person's right to inheritance shall not be forfeited because they married a person of another religion or caste., Section 21 states that succession to the property of any person whose marriage is solemnised under this Act shall be regulated by the provisions of the Indian Succession Act 1925. Section 21A provides a special provision in certain cases. The provision states that Sections 19, 20 (to the extent that it creates a disability), and 21 shall not apply when a marriage is solemnised between a person who professes the Hindu, Buddhist, Sikh, or Jain religion with a person who professes the Hindu, Buddhist, Sikh or Jain religion. The rules of succession under the Indian Succession Act shall not apply where two persons who solemnise their marriage under the SMA belong to the Hindu, Buddhist, Sikh, or Jain religion. Section 21 essentially ruptured the cord between a Hindu, Buddhist, Sikh, or Jain and their personal laws if they married under the provisions of the SMA. Section 21A was introduced in 1976 as a progressive provision. Section 21A links the SMA with the Hindu Succession Act if both the parties belong to a religion to which the Hindu Succession Act applies. Section 21A was introduced to remedy the disability brought in by Section 21., Section 27 deals with divorce. Section 27(1A) grants the wife additional grounds of divorce. Section 31 stipulates the court to which a petition for divorce must be made. Sub‑section (2) of the section is a special provision available to the wife for the presentation of a divorce petition. Section 36 stipulates that the husband may be directed to pay expenses of the proceedings and such sum based on the income of the husband when the wife has no independent income, sufficient to support herself and necessary for divorce proceedings. Section 37 stipulates that the court may order the husband to pay the wife permanent alimony and maintenance., The petitioners argue that Section 4 of the SMA is unconstitutional not because it expressly excludes or bars the marriage between two persons of the same sex but because it excludes the solemnisation of marriage between non‑heterosexual persons by implication since it only governs a heterosexual union., The petitioners have relied on Fourie (supra), a case which emanated from South Africa, to argue that provisions of the SMA must be read in a gender‑neutral manner. In Fourie (supra), the common law definition of marriage and Section 30(1) of the South African Marriage Act (Act 25 of 1961) were challenged. The common law definition of marriage in South Africa is that it is a union of one man with one woman, to the exclusion, while it lasts, of all others. The formula for marriage prescribed by Section 30(1) of the Marriage Act is extracted below: \Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)?\ and thereupon the parties shall give each other the right hand and the marriage officer concerned shall declare the marriage solemnised in the following words: \I declare that A.B. and C.D. here present have been lawfully married.\, The petitioners in Fourie (supra) argued that the reference of husband or wife in Section 30(1) excluded same‑sex couples. The South African Constitutional Court allowed the petition by holding that Section 30(1) was unconstitutional because it excluded same‑sex couples. The opinion of the majority authored by Justice Albie Sachs suspended the declaration of invalidity for one year to cure defects in view of Section 172(1)(b) of the South African Constitution. If the defect was not cured within the time frame stipulated, the word \spouse\ was to be read in place of \wife\ (or \husband\). Justice Kate O'Regan, who authored the minority opinion, disagreed with the majority on the question of the remedy. The learned judge observed that the scales of justice and equity necessitate immediate relief and not a suspended declaration of invalidity., The Court observed that Section 30(1) of the South African Marriage Act was under‑inclusive because it excluded same‑sex unions by silence and omission. Such omission was as effective in law and practice as if effected by express language. The Court held that it would be discriminatory if same‑sex couples were not given the benefits (both tangible and intangible) which were available to heterosexual couples through marriage. The State justified the exclusion of same‑sex couples from the institution of marriage because of the social nature of marriage and strong religious beliefs. The Court rejected this argument on the ground that the reasons which were used to justify the exclusion were grounded in prejudice and that it was not a valid justification for the violation of fundamental rights., On the question of relief, the Court made the following observations: a) Parliament had expressly and impliedly recognised same‑sex partnerships. The Domestic Violence Act 1998 defined a domestic partnership as a relationship between a complainant and a respondent who are of the same or opposite sex and who live/lived together in a relationship in the nature of marriage. The Estate Duty Act 1955 stipulated that the spouse in relation to a deceased person includes a person who at the time of death of the deceased person was a partner of such person in a same‑sex or heterosexual union; b) Section 172(1)(b) of the Constitution granted the Court the power to issue such order including suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect; c) There was extensive consultation with the public on the issue of same‑sex marriage. The South African Law Reform Commission's memorandum on domestic partnership harmonised family law principles with the Bill of Rights which was preceded by extensive public consultation; and d) The Court instead of reading in must grant the remedy of suspended declaration because reading in would be a temporary remedial measure which would be far less likely to achieve equality. Legislative action was well‑suited for this purpose., Though facially the case mounted by the petitioners before us is similar to the case mounted by the petitioners in Fourie (supra), the legal and constitutional regime in South Africa and India varies. Unlike the SMA, there was only one provision in the South African Marriage Act (that is, Section 30(1)) which made a reference to heterosexual relationships. However, various provisions of the SMA (Sections 4, 27(1A), 31, 36, and 37) confine marriage to a union between heterosexual persons. Moreover, various enactments in South Africa already recognised same‑sex unions unlike the Indian legal landscape where no law even remotely recognises the union between a same‑sex couple. Thus, the canvas of the challenge before the South African Constitutional Court in Fourie (supra) and the legal and constitutional regime in place varies widely from that in India., The petitioners argued that the Supreme Court of India ought to interpret the SMA to make it constitutionally compliant. They relied on the decision of the House of Lords of the United Kingdom in Ghaidan (supra) and urged the Supreme Court of India to adopt the principle of interpretation which had been adopted in that case., In that case, the respondent was in a stable and monogamous homosexual relationship with his partner who was a tenant in the house that the couple shared. The respondent and his partner were living together when the latter died. The appellant (being the landlord) claimed possession of the house. The respondent resisted the claim on the ground that he ought to be considered a statutory tenant in terms of the United Kingdom's Rent Act 1977. This enactment provided that a surviving spouse of the original tenant shall be the statutory tenant if the surviving spouse was residing in the house in question immediately before the death of the original tenant. It also stipulated that a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant. In essence, the Rent Act protected the tenancy rights of a heterosexual couple when the couple was in a relationship that was of a similar character as marriage. The surviving partner in a homosexual relationship could have become entitled to an assured tenancy which was less advantageous than a statutory tenancy., The respondent contended that the difference in the treatment of heterosexual couples and homosexual couples was based on their sexual orientation alone, and lacked justification, infringing Article 14 (prohibition of discrimination) read with Article 8 (right to respect for private and family life) of the European Convention on Human Rights. He further argued that the court had a duty under Section 3 of the United Kingdom's Human Rights Act 1998 to read and give effect to the Rent Act in a way which was compliant with the ECHR. In other words, he urged the court to read the Rent Act such that it granted the surviving partner in a close and stable homosexual relationship the same rights as the surviving partner in a heterosexual relationship of a similar nature the right to succeed the tenancy as a statutory tenant. The court of first instance rejected the respondent's arguments. The first appellate court allowed the appeal, leading to proceedings before the final appellate authority, the House of Lords (now, the Supreme Court of the United Kingdom)., The House of Lords accepted the respondent's arguments. It noted that the rationale of the Rent Act was that the security of tenure in a house which a couple had made their home ought not to depend upon which of them dies first. It held that there was no legitimate state aim which justified the difference in treatment of heterosexual and homosexual couples, and found that the Rent Act therefore violated the rights of the respondent under the ECHR. Having so found, it relied on Section 3 of the Human Rights Act to interpret the Rent Act to mean that the survivor of a homosexual couple would have rights on par with the survivor of a heterosexual relationship for the purposes of succession as a statutory tenant., Section 3 of the Human Rights Act reads as follows: \Interpretation of legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.\ As noticed by the House of Lords in Ghaidan (supra): a) This provision was one of the primary means by which rights under the ECHR were brought into the law of the United Kingdom; b) Section 3 permitted courts in the United Kingdom to depart from the unambiguous meaning of a statute, if required; c) It also authorised courts in the United Kingdom to depart from legislative intent in interpreting the language used in a statute, if required; d) It allowed courts to read in words to a statute which changed the meaning of that statute, to make it compliant with the ECHR as long as the new meaning was compatible with the underlying thrust of that enactment; and e) Section 3 did not authorise courts to make decisions for which they were not equipped, such as when there were many ways of making a particular provision compliant with the ECHR., It is not open to the Supreme Court of India to adopt the interpretative principle laid down in Section 3 of the Human Rights Act for a simple reason: the House of Lords derived the power to depart from legislative intent and read words into a statute such that it was compliant with the ECHR from the Human Rights Act, a statute enacted by the Parliament of the United Kingdom. It did not rely on a common law principle or fashion a principle of interpretation based on common law. The House of Lords itself noted that the interpretative obligation decreed by Section 3 is of an unusual and far‑reaching character. In India, there is no legislation which permits the Supreme Court of India to depart from legislative intent and read words into legislation such that it is compliant with the Constitution., As discussed in the previous segment of this judgment on the power of judicial review, courts in India must be circumspect in relying on the law in other jurisdictions, torn from the context in which those decisions have been crafted. It is not permissible for the Supreme Court of India to exercise a power which the Parliament of another country conferred on its courts, absent a similar conferment of power under the Constitution of India. This Court must exercise those powers which it has by virtue of the Constitution of India or any other Indian law. In any event, as the House of Lords held, courts may not exercise this power to make decisions for which they are ill‑equipped. This Court is not equipped to recognise the right of queer persons to marry under the SMA for reasons discussed in subsequent segments., It must be noted that the Supreme Court of India in the beginning of the hearing restricted the breadth of the challenge to non‑personal marriage law. However, on a careful perusal of the provisions of the SMA, it is evident that Section 21A links the SMA to personal and non‑personal laws of succession. In fact, such is the complexity of the SMA that the petitioners themselves had to submit lengthy charts on workability, which in effect reworked the structure of the SMA to include non‑heterosexual unions., Dr. Abhishek Manu Singhvi, appearing for one of the petitioners, submitted that there are three plausible interpretations of Section 21A in its application to marriages between two Hindus under the provisions of the SMA: a) The Court may choose not to decide on the applicability of Section 21A to non‑heterosexual Hindu couples in the present litigation and leave the question of succession open for future litigation; b) The succession of Hindu non‑heterosexual couples will be governed by the Hindu Succession Act and that of other interfaith non‑heterosexual couples will be governed by the Indian Succession Act (similar to interfaith heterosexual couples or heterosexual couples of other religions). This requires a gender‑neutral reading of the Hindu Succession Act and the Indian Succession Act. The words \widow\ and \widower\ in the Indian Succession Act and \male Hindu\, \female Hindu\, \widow\, and \widower\ in the Hindu Succession Act can be interpreted in a gender neutral manner. This interpretation must only be limited to issues related to marriage. To include transgender persons, the Court may hold that the words \male\ and \female\ under Sections 8 and 15 of the Hindu Succession Act may be read as \persons\; c) Since by agreement of parties, religious and personal law related issues are beyond the scope of this litigation, it follows that provisions of secular law that relate back to personal laws (like Section 21A) are excluded from consideration. Since Section 21A was introduced as an exception to the regime under Sections 19 to 21, non‑consideration of the issue would revert the law to the position before the introduction of Section 21A which is that the Indian Succession Act would apply to all marriages under the SMA., In addition to the reading in of the provisions of other statutes such as the Indian Succession Act and the Hindu Succession Act, the petitioners argue that the Court must also read into the following provisions of the SMA: a) The words \widow\ and \widower\ in Schedules II and III of the SMA must be read as \widow or widower\ and \widower or widow\; and b) Section 4(c) of the SMA may be interpreted in the following way: i) For same‑sex couples, the provision may be read as prescribing eighteen years as the minimum age for both parties in a lesbian relationship, and twenty‑one years for both parties in a gay relationship; ii) For transgender persons, the minimum age requirement would depend on whichever gender/sex they identify as. So, a trans‑man would be eligible to marry at twenty‑one years of age while a trans‑woman would be eligible to marry at eighteen years; and iii) For those who do not identify either as a man or a woman, the following approach shall be adopted to ensure the inclusion of non‑binary and intersex individuals: A) The silence of the SMA on the minimum age qualification for persons other than men and women may be read as imposing no restriction other than the restriction imposed by other laws that stipulate the age at which persons are capable of making decisions for themselves, which is eighteen years; B) Alternatively, the Court may lay down guidelines as an interim measure until Parliament fills the legislative vacuum.
id_851	8	If the Supreme Court of India finds that a provision is contrary to Part III of the Constitution, it shall declare that it is void, or read it down (by deleting phrases) or read words in (by adding or substituting phrases) to save it from being declared void. If, in the present batch of petitions, the Supreme Court of India holds that Section 4 is unconstitutional because it is underinclusive to the extent that it excludes, by implication, the marriage between same‑sex couples, the court could either strike down Section 4 of the Special Marriage Act or follow the workability model submitted by the petitioners. If the Supreme Court of India follows the first approach, the purpose of a progressive legislation such as the Special Marriage Act would be lost. The Special Marriage Act was enacted to enable persons of different religions and castes to marry. If the Special Marriage Act is held void for excluding same‑sex couples, it would take India back to the pre‑independence era where two persons of different religions and castes were unable to celebrate love in the form of marriage. Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another., If the Supreme Court of India takes the second approach and reads words into the provisions of the Special Marriage Act and provisions of other allied laws such as the Indian Succession Act and the Hindu Succession Act, it would in effect be entering into the realm of the legislature. The submissions of the petitioners indicate that the Supreme Court of India would be required to extensively read words into numerous provisions of the Special Marriage Act and other allied laws. The Supreme Court of India is not equipped to undertake an exercise of such wide amplitude because of its institutional limitations. It would in effect be redrafting the laws in the garb of reading words into the provisions. It is trite law that judicial legislation is impermissible. We are conscious that the court usually first determines if the law is unconstitutional, and then proceeds to decide on the relief. However, in this case, an exercise to determine whether the Special Marriage Act is unconstitutional because of under‑inclusivity would be futile because of the limitations of the Supreme Court of India's power to grant a remedy. Whether a change should be brought into the legislative regime of the Special Marriage Act is for Parliament to determine. Parliament has access to varied sources of information and represents a diversity of viewpoints in the polity. The Supreme Court of India, in the exercise of the power of judicial review, must be careful not to tread into the legislative domain. It is clarified that the Supreme Court of India has not adjudicated upon the validity of any laws other than the Special Marriage Act, the Foreign Marriage Act, the Adoption Regulations, and the CARA Circular., Some petitioners have challenged the constitutionality of the Foreign Marriage Act and have sought a declaration that it applies to any two persons who seek to get married, regardless of their gender identity and sexual orientation. The Foreign Marriage Act applies to two categories of persons: parties who seek to solemnise their marriage under the Foreign Marriage Act in a foreign country and those who seek to register their marriage under the Foreign Marriage Act when their marriage has been solemnised in a foreign country in accordance with the law of that country. In both cases, at least one of the parties to the marriage must be a citizen of India., Section 4 of the Foreign Marriage Act specifies certain conditions which must be fulfilled before the parties can avail of its provisions: Conditions relating to solemnisation of foreign marriages. A marriage between parties, one of whom at least is a citizen of India, may be solemnised under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely: (a) neither party has a spouse living, (b) neither party is an idiot or a lunatic, (c) the bridegroom has completed the age of twenty‑one years and the bride the age of eighteen years at the time of the marriage, and (d) the parties are not within the degrees of prohibited relationship: Provided that where the personal law or a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnised, notwithstanding that they are within the degrees of prohibited relationship., Clauses (c) and (d) contain requirements which prevent the Supreme Court of India from interpreting the Foreign Marriage Act as applying to persons regardless of their sexual orientation. Clause (c) requires the bridegroom to be at least twenty‑one years and the bride to be at least eighteen years of age. If the Supreme Court of India were to interpret Section 4 as applying to same‑sex relationships, the question of how clause (c) would apply to such relationships would arise. Various approaches were proposed including reading the provision as requiring a minimum age of twenty‑one for all men and eighteen for all women, such that two men who sought to marry would both be required to be twenty‑one years and two women who sought to marry would both have to be eighteen years. Another approach was to interpret the provision as requiring a common minimum age for all same‑sex couples. The Supreme Court of India is of the opinion that such an exercise would amount to judicial legislation. When there are various options open for a legislative change and policy considerations abound, it is best left to Parliament to engage in democratic decision‑making and settle upon a suitable course of action., Clause (d) requires the parties not to be within the degrees of prohibited relationship. Section 2(a) defines the phrase degrees of prohibited relationship as having the same meaning as in the Special Marriage Act. The reasons why the degrees of prohibited relationship cannot be interpreted by the Supreme Court of India to include same‑sex relationships have been discussed in the preceding paragraphs. The same reasons apply to Clause (d) of the Foreign Marriage Act., The Foreign Marriage Act recognises the right of an Indian citizen to marry outside India or to marry a person from a foreign country. In essence, it recognises the right of a citizen of India to choose a life partner who is not a citizen of India. It follows that citizens of India may enter into an abiding union with a person of their choice, including a person of the same sex as them, even if that person is not a citizen of India. It is accordingly clarified that the right of a citizen of India to enter into an abiding union with a foreign citizen of the same sex is preserved., The need to love is as important a force in human society as is the will to power. Power wants to destroy or consume or drive away the other, the one who is different, whose will is different. Love wants the other to remain, always nearby, but always itself, always other., Over the years, through dialogue both inside and outside the courts, it has been established that the negative and positive postulates of fundamental freedoms and the Constitution as a whole inter alia secure conditions for self‑development at both an individual and a group level. This understanding can be traced to numerous provisions of Part III of the Constitution, the preambular values, and the jurisprudence which has emanated from courts. For example, the Supreme Court of India has held that the right to life under Article 21 secures more than the right of physical existence. It includes, inter alia, the right to a quality life which has been interpreted to include the right to live in an environment free from smoke and pollution, the right to access good roads, and a suitable accommodation which would enable individuals to grow in every aspect—mental, physical, and intellectual., Similarly, it has been established that a free exchange of ideas recognised under Article 19 is an integral aspect of the right to self‑development. The rights against exploitation and against discrimination and untouchability secure the creation of equal spaces in public and private spheres, which is essential for self‑growth. The right to quality education without discrimination also ensures that every citizen secures basic education to develop themselves. The freedom to profess and practise religion also enables individuals to evolve spiritually., This understanding of the Constitution is substantiated on a reading of Part IV of the Constitution. To illustrate, Article 38 states that the State shall strive to promote the welfare of the people, Article 42 stipulates that the State shall endeavour to secure just and humane conditions of work, and Article 47 places a duty on the State to raise the level of nutrition and the standard of living. The Constitution, through both positive and negative postulations, inter alia capacitates citizens in their quest to develop themselves. Such capacity‑building enables them to achieve their full potential in both the private and the public space, and to be happy. The Indian Constitution does not expressly provide that the Constitution seeks to improve the quality of life and free the potential of each person, but such an understanding can be gleaned from the provisions of Part III and Part IV of the Constitution. Thus, one of the purposes of the rights framework is to enable the citizenry to attain the goal of self‑development., Martha C. Nussbaum laid down a list of ten capabilities which are central requirements to live a quality life. Two of the identified capabilities are crucial for our discussion. The first is emotions, characterised as the ability to have attachments to things and people outside ourselves; to love those who love and care for us; to grieve at their absence; in general, to love, to grieve, to experience longing, gratitude, and justified anger; and not to have one's emotional development blighted by fear and anxiety. The second is affiliation, characterised as the ability to live with and toward others, to recognise and show concern for other human beings, to engage in various forms of social interaction, and to be able to imagine the situation of another., The capabilities of emotions and affiliation identified by Nussbaum for self‑development and sustaining a quality life are crucial for two important reasons. First, both capabilities focus on the human side of a person, that is, the ability and necessity of a person to emote and form relationships and associations. Second, the distinction between the capabilities of emotions and affiliation is that in the former, the emphasis is upon the agency of the individual and the freedom they have to form bonds with other people, while in the latter, the emphasis is upon granting recognition to such associations., Humans are unique in many respects. We live in complex societies, are able to think, communicate, imagine, strategise, and do more. However, that which sets us apart from other species does not by itself make us human. These qualities are necessary elements of our humanity but taken alone, they paint an incomplete picture. In addition to these qualities, our ability to feel love and affection for one another makes us human. We may not be unique in our ability to feel the emotion of love but it is certainly a fundamental feature of our humanity. We have an innate need to see and to be seen to have our identity, emotions, and needs fully acknowledged, recognised, and accepted. The ability to feel emotions such as grief, happiness, anger and affection and the need to share them with others makes us who we are. As human beings, we seek companionship and most of us value abiding relationships with other human beings in different forms and capacities. These relationships may take many forms: the natal family, cousins and relatives, friends, romantic partnerships, mentors, or students. Of these, the natal family as well as the family created with one’s life partner form the fundamental groups of society., The need and ability to be a part of a family forms a core component of our humanity. These relationships which nourish the emotional and spiritual aspects of our humanity are important in and of themselves. Further, they are as important to self‑development as the intellectual and financial nourishment we receive through education. Self‑development cannot be measured solely in terms of educational qualifications and financial capabilities. Such a description would forget what makes us human., It is insufficient if persons have the ability and freedom to form relationships unregulated by the State. For the full enjoyment of such relationships, it is necessary that the State accord recognition to such relationships. Thus, the right to enter into a union includes the right to associate with a partner of one’s choice, due recognition to the association, and ensuring that there is no denial of access to basic goods and services, which is crucial to achieve the goal of self‑development., Article 19(1)(a) of the Constitution recognises the right to freedom of speech and expression. Freedom postulates within its meaning both an absence of State control as well as actions by the State which create the conditions for the exercise of rights and freedoms. Article 19(1)(c) of the Constitution recognises the freedom to form associations or unions or co‑operative societies. The freedom of speech and expression is not limited to expressive words. It also includes other forms of expression such as the manifestation of complex identities of persons through the expression of their sexual identity, choice of partner, and the expression of sexual desire to a consenting party. Earlier judgments of the Supreme Court of India have held that expression of gender identity is a protected freedom under Article 19(1)(a). In National Legal Services Authority (NALSA) v. Union of India, the Supreme Court of India held that the expression of gender identity is a form of protected expression under Article 19(1)(a). In Navtej Singh Johar v. Union of India, the Supreme Court of India held that Section 377 of the Indian Penal Code infringes upon the freedom of expression of queer persons, protected under Article 19(1)(a)., Courts have traditionally interpreted the right to form an association guaranteed under Article 19(1)(c) to mean associations formed by workers or employees for collective bargaining to attain equitable working conditions. However, the entire gamut of the freedom protected under Article 19(1)(c) cannot be restricted to this singular conception. The ambit of the freedom under Article 19(1)(c) is much wider. The provision does not merely protect the freedom to form an association to create spaces for political speech or for espousing the cause of labour rights. While that is a very crucial component of the freedom protected under Article 19(1)(c), the provision also protects the freedom to engage in other forms of association to realise all forms of expression protected under Article 19(1)(a)., In Roberts v. United States Jaycees, the United States Supreme Court read freedom of association widely to include the freedom to form intimate associations. The factual matrix before the Court was that regular membership to the respondent corporation was restricted to men between the ages of fifteen to thirty‑five. Associate membership was offered to those to whom regular membership was not available. Complaints were filed alleging that the exclusion of women from full membership violated the Minnesota Human Rights Act which made it discriminatory to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex. The United States Supreme Court had to decide if any interference with the organization’s membership policy would violate the respondent’s freedom of association guaranteed under the First Amendment. Justice Brennan, writing for the majority, observed that the freedom of association constitutes two facets. First, the freedom to enter into intimate human relationships secure from undue state interference (the intrinsic element); and second, the freedom to form associations to engage in activities protected by the First Amendment such as speech, assembly, and the exercise of religion (the instrumental element). The Court observed that individuals have the freedom to form intimate associations because individual liberty can be secured only when the State does not unjustifiably interfere with the formation and preservation of certain kinds of highly personal relationships. The Constitution protects such relationships because individuals draw emotional enrichment from close ties such as those created by marriage, children, and cohabitation, which contribute towards identity building and self‑development. Justice Brennan qualified the freedom by observing that only personal relationships (which are characterised by attributes such as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, the seclusion from others in critical aspects of the relationship) are protected., The right to form an intimate association has been expanded upon by the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), whereby the sodomy laws were held unconstitutional., Kenneth L. Karst, who developed the idea of the freedom of intimate association, argues that courts have traditionally not permitted the State to interfere or regulate certain kinds of personal relationships, thereby elevating it to a distinct freedom. Intimate association is characterised by a sense of collectivity which exists beyond two individuals. One of the prominent ideas embraced by the freedom of intimate association is the opportunity it affords to enjoy the society of the other person who is a part of the relationship and the ability to choose to form and maintain such a relationship. The opportunity to enjoy the society of one’s partner may be denied either directly or indirectly. It could be denied directly when the law prohibits such an association. The operation of Section 377 of the Indian Penal Code criminalising homosexual activity is a form of direct restriction on the freedom of association., On the other hand, the State could indirectly infringe upon the freedom when it does not create sufficient space to exercise that freedom. A formal associational status or recognition of the association is necessary for the free and unrestricted exercise of the freedom to form intimate associations. Needless to say, there may be reasonable restrictions on this right. However, other than legally valid and binding restrictions, the right to intimate associations must be unrestricted. The State, by not endorsing a form of relationship, encourages certain preferences over others. In a previous segment of this judgment, we have discussed the tangible and intangible benefits of recognising relationships in the form of marriage. While the tangible benefits of marriage are traceable to the content of law, the intangible benefits are secured merely because the State recognises the relationship through the instrument of law. Intangible benefits in the form of expressive advantages exist irrespective of the content of the law. Even if the law does not grant any special material benefits to a relationship, the relationship would still be considered legitimate in the eyes of society. The freedom to choose a partner and the freedom to enjoy their society, which are essential components of the right to enter into a union (and the freedom of intimate association), would be rendered otiose if the relationship were to be discriminated against. For the right to have real meaning, the State must recognise a bouquet of entitlements which flow from an abiding relationship of this kind. A failure to recognise such entitlements would result in systemic discrimination against queer couples. Unlike heterosexual couples who may choose to marry, queer couples are not conferred with the right to marry by statute. To remedy this, during the course of the hearing, the Solicitor General of India made a statement that a Committee chaired by the Cabinet Secretary will be constituted to set out the rights which will be available to queer couples in unions. The Committee shall set out the scope of the benefits which accrue to such couples., Article 19(1)(e) of the Constitution stipulates that all citizens shall have the right to reside and settle in any part of the territory of India. In exercise of this right, citizens may reside in any village, town, or city in any state or union territory irrespective of the state in which they were born or are domiciled. Article 19(1)(e) proscribes differentiation on the basis of the native place of a person. As with other fundamental rights, it is subject to reasonable restrictions. In Maneka Gandhi v. Union of India, the Supreme Court of India observed that it was a historical fact that there were rivalries between some states in the country. It was therefore not beyond the realm of possibility that a particular state would restrain individuals domiciled in another state from residing or settling in the first state. In view of this, the Court held that the intention behind Article 19(1)(d) (the right to move freely throughout the territory of India) and Article 19(1)(e) was to prevent the states from imposing such restrictions. In this way, the provision was thought to emphasize the unity and oneness of India., Article 19(1)(e) uses the expressions reside and settle. The term reside can mean either a temporary residence or a permanent residence but there is a certain level of permanency attached to the word settle in India. One can reside in a particular place in the course of their education or employment but to settle down in that place means to build one’s life there and reside there permanently. In P. Ramanatha Aiyar’s Law Lexicon (1997 edition), it is stated: The word settled has no precise or determinate meaning. In popular language, it intends going into a town or place to live and take up one’s abode. A person is said to be settled where he has his domicile or home. Colloquially, people say that a person has settled down when they are well established in their careers or when they have chosen a life partner or married somebody. The term settle down has previously been used by this Court in this sense (see, for instance, Pradeep Jain v. Union of India, (1984) 3 SCC 654)., Citizens of India have the right to settle in any part of the territory of India in terms of Article 19(1)(e). They, like all other citizens, may exercise this right in two ways: (a) First, they may build their lives in a place of their choosing (in accordance with law) either by themselves or with their partner. They may reside in that place permanently (subject to other reasonable restrictions including those intended to protect the rights of tribal communities). This right is uniquely significant to persecuted groups (such as queer persons, inter‑caste couples, or interfaith couples) who migrate from their hometowns to other places in the country, including cities; and (b) Second, they may settle down with another person by entering into a lasting relationship with them. In fact, this mode of exercising the right under Article 19(1)(e) is encompassed by the first mode because, to many people, building a life includes choosing their life partner. Hence, the right to enter into a union is also grounded in Article 19(1)(e)., One’s natal family usually consists of one’s immediate relatives. The people who constitute one’s immediate relatives vary from society to society. For instance, many Indians grow up in a Hindu Undivided Family, commonly known as a joint family and which is recognised by law. The family is typically thought of as comprising a mother and a father, to which a life partner is added (usually in a heterosexual relationship). Later, children join this family, and so the cycle continues. While this conception of a family dominates our collective understanding, it is not the only valid mode by which a family can be formed. Many persons do not follow this blueprint for the creation of a family. They instead have their own, atypical blueprint., In Deepika Singh v. Union of India, the Supreme Court of India rightly acknowledged the existence of atypical families: “The predominant understanding of the concept of a family both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both the many circumstances which may lead to a change in one’s familial structure, and the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single‑parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the mother and the father) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones.”, Queer relationships may constitute one’s family. Persons in such relationships are fulfilling their innate and human need to be a part of a family and to create their family. This conception of a family may be atypical but its atypical nature does not detract from the fact that it is a family. Further, queer persons are often rejected by their natal families and have only their partner or their chosen community to fall back on. In addition to the different forms of kinship recognised in Deepika Singh, the guru‑chela bond of transgender persons may also be a familial bond. Unlike hijras who often have the option of joining the hijra community and forming the guru‑chela bond, transmen do not have traditions or customs which may lead to the creation of non‑biological familial bonds with other transmen as a group. Regardless, they form close bonds with other transmen and many consider these bonds to be familial. These atypical manifestations of the family unit equally constitute the fundamental groups of society. The Constitution accounts for plural identities and values. It protects the right of every person to be different. Atypical families, by their very nature, assert the right to be different. Difference cannot be discriminated against simply because it exists. Articles 19 and 21 protect the rights of every citizen and not some citizens., Some petitioners have suggested that the atypical family is a queer person’s chosen family. Chosen families comprise people who are selected to be one’s kin, with the exercise of one’s agency.
id_851	9	Some have argued that the entire spectrum of queer relationships in India may not always be based on choice, with guru‑chela relationships often assigned rather than chosen. Hence, while some queer relationships may accurately be described as the chosen family, all of them are the atypical family., It is not only formal freedom which is significant but also substantive freedom or the opportunity to achieve what one sets out to achieve and the conditions which enable this. The freedom guaranteed under the Constitution is realised in substance only when the conditions for their effective exercise are created. Formal freedom is translated into substantive freedom through the formulation of schemes and policies. When citizens are prevented from exercising their rights, the courts create the conditions for their exercise by giving effect to the laws enacted by the legislative wing or the schemes formulated by the executive wing. In the process, courts interpret the Constitution and the rights and freedoms it recognises. This exercise lies at the core of Article 21 of the Constitution, which guarantees the right to life and personal liberty., A few paragraphs ago, the Supreme Court of India discussed what it means to be human. The question of what it means to be free or to have liberty is of equal significance. It is a question which has plagued philosophers, ethicists, and economists alike. The answer may mean different things to different people and may change depending on the circumstances in which the question is asked. Simply put, the ability to do what one wishes to do and be who one wishes to be (in accordance with law) lies at the heart of freedom., Article 21 is available to all persons including queer persons. Article 21 encompasses the rights to dignity, autonomy, and privacy. Each of these facets animates the others. It is not possible to speak of the right to enter into a union without also speaking of the right to intimacy, which emanates from these rights. These rights demand that each individual be free to determine the course of their life, as long as their actions are not barred by law. Choosing a life partner is an integral part of determining the course of one's life. Most people consider this decision to be one of the most important decisions of their lives, one which defines their very identity. Life partners live together, spend a significant amount of time with one another, merge their respective families, create a family of their own, care for each other in times of sickness, support one another and much more. Hence, the ability to choose one's partner and to build a life together goes to the root of the right to life and liberty under Article 21. Undoubtedly, many persons choose not to have a life partner but this is by choice and not by a deprivation of their agency. The law constrains the right to choose a partner in certain situations such as when they are within prohibited degrees of relationship or are in a consanguineous relationship., Principle 24 of the Yogyakarta Principles (on the application of international human rights law in relation to sexual orientation and gender identity) states that all people have the right to found a family: Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members. While India is not a signatory to the Yogyakarta Principles, the Supreme Court of India has recognised their relevance to the adjudication of cases concerning sexual minorities. Depriving someone of the freedom to choose their life partner robs them of their autonomy, which in turn is an affront to their dignity. Preventing members of the LGBTQ community from entering into a union also has the result of denying (in effect) the validity of their sexuality because their sexuality is the reason for such denial. This would also violate the right to autonomy which extends to choosing a gender identity and sexual orientation. The act of entering into an intimate relationship and the choices made in such relationships are also protected by the right to privacy. As held by the Supreme Court of India in Navtej and Justice K.S. Puttaswamy, the right to privacy is not merely the right to be left alone but extends to decisional privacy or privacy of choice., The right to health is also a crucial component of the right to life and liberty. The health of a person includes both their physical and their mental wellbeing. Parliament enacted the Mental Healthcare Act 2017 to regulate the provision of mental healthcare services. An assessment of the mental health of a person cannot be limited to considering whether they have a mental illness or disease but must also include an assessment of whether their mental health is thriving. The Constitution of the World Health Organization declares that health is a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity. Mental health is therefore a state of complete mental wellbeing and not merely the absence of mental illnesses. Parliament is also cognisant of this fact as evident from the overall scheme and provisions of the Mental Healthcare Act. Though this statute is primarily concerned with mental illnesses and access to healthcare, Chapter VI recognises the value of complete mental wellbeing by providing for the promotion of and awareness about mental health. A person's mental wellbeing can only be secured if they are allowed the freedom and liberty to make choices about their lives. If their choices are restrained, their overall mental wellbeing would undoubtedly be degraded. Choices may be restrained by expressly denying them their freedom or by failing to create conditions for the exercise of such freedom., The right of queer persons to access mental healthcare is recognised by Section 18, which stipulates that persons have a right to access mental healthcare without being discriminated against on the basis of their sex, gender, or sexual orientation. This is undoubtedly a progressive step in line with constitutional ideals. The mental health of members of the LGBTQ community may suffer not only because of the discrimination they may face at the hands of their families or society in general but also because they are prevented from choosing their life partner and entering into a meaningful, long‑lasting relationship. The effect of the right to life under Article 21 read with Section 18 of the Mental Healthcare Act is that queer people have the right to complete mental health, without being discriminated against because of their sex, gender, or sexual orientation. A natural consequence of this is that they have the right to enter into a lasting relationship with their partner. They also have a right not to be subjected to inhumane and cruel practices or procedures., Article 25(1) of the Constitution is as follows: \Freedom of conscience and free profession, practice and propagation of religion (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.\ Article 25(1) has four components. The first component makes the right available to all persons. The second component indicates that all persons are equally entitled to the rights it codifies. The third component deals with two distinct concepts: the right to freedom of conscience and the right freely to profess, practice and propagate religion. While the freedom of conscience subsumes within its fold the right to profess, practice and propagate religion, it is not restricted to this right alone. The rights with respect to religion are one aspect of the freedom of conscience. The fourth component makes the rights codified in Article 25 subject to public order, morality, health, and the other provisions of Part III. The right under Article 25 is an individual right because conscience inheres in an individual., The right under Article 25 is also available to members of the LGBTQ community since it is available to all persons. Black's Law Dictionary defines conscience as the moral sense; the faculty of judging the moral qualities of actions, or of discriminating between right and wrong; particularly applied to one's perception and judgment of the moral qualities of his own conduct, but in a wider sense, denoting similar application of the standards of morality to the acts of others. The sense of right and wrong inherent in every person by virtue of his existence as a social entity., All persons, including members of the queer community, have the right to judge the moral quality of the actions in their own lives, and having judged their moral quality, have the right to act on their judgment in a manner they see fit. This attribute is of course not absolute and is capable of being regulated by law. In the segment of this judgment on the right to life and liberty, the Supreme Court of India noticed that the meaning of liberty is at its core the ability to do what one wishes to do and be who one wishes to be, in accordance with law. All persons may arrive at a decision regarding what they want to do and who they want to be by exercising their freedom of conscience. They may apply their sense of right and wrong to their lives and live as they desire, in accordance with law. Some of the decisions whose moral quality they will judge include the decision on who their life partner will be and the manner in which they will build their life together. Each individual is entitled to decide this for themselves, in accordance with their conscience., The right under Article 25 is subject to four exceptions: public order, morality, health, and the other provisions of Part III. The respondents have not demonstrated that public order will be in peril or that the health of the public at large or of individuals will be adversely impacted if queer persons enter into a union with their partners. As for morality, it is settled law that Article 25 speaks of constitutional morality and not societal morality. In Indian Young Lawyers Association v. State of Kerala, a five‑Judge Bench of the Supreme Court of India held: Morality for the purposes of Articles 25 and 26 cannot have an ephemeral existence. Popular notions about what is moral and what is not are transient and fleeting. Popular notions about what is or is not moral may in fact be deeply offensive to individual dignity and human rights. Individual dignity cannot be allowed to be subordinate to the morality of the mob. Nor can the intolerance of society operate as a marauding morality to control individual self‑expression in its manifest form. The expression has been adopted in a constitutional text and it would be inappropriate to give it a content which is momentary or impermanent. Then again, the expression 'morality' cannot be equated with prevailing social conceptions or those which may be subsumed within mainstream thinking in society at a given time. The content of morality is founded on the four precepts which emerge from the Preamble: justice in its social, economic and political dimensions; individual liberty in matters of thought, expression, belief, faith and worship; equality of status and opportunity amongst all citizens; and fraternity amongst all citizens which assures the dignity of human life. Hence, the content of morality must be determined on the basis of the preambular precepts of justice, liberty, equality, and fraternity. None of these principles are an impediment to queer persons entering into a union. To the contrary, they bolster the proposition that queer persons have the right to enter into such a relationship. Finally, the other provisions in Part III (which may also restrict the exercise of the right under Article 25) do not act as a bar to the exercise of the right in the present case. Similar to the preambular values, they give rise to the right to enter into a union., A union may emerge from an abiding, cohabitation relationship of two persons in which each chooses the other to impart stability and permanence to their relationship. Such a union encapsulates a sustained companionship. The freedom of all persons (including persons of the queer community) to form a union was recognised by the Supreme Court of India in Navtej: There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others. Such a union has to be shielded against discrimination based on gender or sexual orientation., In K.S. Puttaswamy (Privacy‑9J) v. Union of India, Justice D.Y. Chandrachud held that discrimination against an individual on the basis of sexual orientation is offensive to their dignity and self‑worth: Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the mainstream. Yet in a democratic Constitution founded on the Rule of Law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self‑worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution., The Supreme Court of India recognised that equality demands that queer persons are not discriminated against. An abiding cohabitation relationship which includes within its fold a union of two individuals cannot be discriminated against on the basis of sexual orientation. Material and expressive entitlements which flow from a union must be available to couples in queer unions. Any form of discrimination has a disparate impact on queer couples who, unlike heterosexual couples, cannot marry under the current legal regime., As a consequence of the rights codified in Part III of the Constitution, the Supreme Court of India holds that all persons have a right to enter into an abiding union with their life partner. This right, undoubtedly, extends to persons in queer relationships. It is necessary to clarify the difference between relationships and unions of the kind spoken of by the Court, and unions and marriages. Any person may enter into a consensual romantic or sexual relationship with another person. This may last for a few months or for years. Regardless of the period for which the relationship continues, no legal consequences attach to it, except where provided by law (such as in terms of the Domestic Violence Act). However, when two persons enter into a union with a person whom they consider to be their life partner, certain legal consequences will follow. For instance, if one of them happens to die, their partner will have the right to access the body of the deceased., Restrictions on the right to enter into a union cannot be based on sexual orientation. In Navtej, the concurring opinion authored by Justice D.Y. Chandrachud noted that Article 15 prohibits discrimination, direct or indirect, which is founded on a stereotypical understanding of the role of sex. The judgment expanded on this understanding by holding that sexual orientation is also covered within the meaning of sex in Article 15(1) because (i) non‑heterosexual relationships question the male‑female binary and gendered roles attached to them; and (ii) discrimination based on sexual orientation indirectly discriminates based on gender stereotypes which is prohibited by Article 15. Thus, a law which directly or indirectly discriminates based on sexual orientation is constitutionally suspect. Justice Indu Malhotra observed that Article 15(1) prohibits discrimination based on sexual orientation because it is analogous to the other grounds on which discrimination is prohibited. The common thread running through the grounds mentioned in Article 15 is that they impact the personal autonomy of an individual., We find it necessary to supplement the observations of the Supreme Court of India in Navtej on the impermissibility of discrimination based on sexual orientation. The causal relationship between homophobia and gender stereotypes is not the only constitutional approach to grounding the prohibition of discrimination based on sexual orientation in Article 15. Subsuming the discrimination faced by queer persons into the sex‑gender debate runs the risk of being reductionist. Gender theory only captures one part of the complex construction of sexual deviance. Over‑emphasising gender norms as a reason for the discrimination faced by the queer community would be at the cost of reducing their identity., At this juncture, it is important to address the argument of the learned Solicitor General that Article 15 of the Constitution does not include sexual orientation because it is not an ascriptive characteristic since there is a degree of choice in identifying as a queer person. This submission is premised on the erroneous understanding that the common thread which runs through the grounds mentioned in Article 15 is that they are all ascriptive characteristics., Article 15 of the Constitution states that no citizen shall be discriminated against based on religion, race, sex, place of birth, or any of them. Ascribed status is described as being assigned to individuals without reference to their innate differences or abilities and achieved status is described as acquiring special qualities and being open to individual achievement. Thus, characteristics attained at birth are termed as ascribed status and characteristics or qualities achieved after birth are termed as achieved status. Status is not a biological phenomenon; it is a social phenomenon. The status of a person is identified based on how a person is perceived, which depends on how society (conditioned by social norms) sees an individual as part of a group., The Supreme Court of India has in many judgments held that caste is an ascribed status. The argument of Dr. Abhishek Manu Singhvi that Article 15 prohibits discrimination on the ground of sexual orientation because it is an ascribed characteristic, and the argument of the learned Solicitor General that sexual orientation is not an ascribed characteristic (and therefore not protected under Article 15) fails to give effect to the full purport of the anti‑discrimination principle encompassed in Article 15. A core difference between ascribed and achieved status is that the former is considered irreversible (where a person is born with it) but the latter is reversible., The assumption that Article 15 only protects the status that a person is born with and not an identity they choose runs the risk of viewing persons as helpless individuals. It also misses the crucial point that a person who chooses an identity can also be discriminated against. Some of the grounds stipulated in Article 15 may be reversed by the exercise of choice. For example, persons undergo sex reassignment surgery to align their bodies with their gender. When a person wishes to choose a different label for their gender, they face other forms of discrimination and stigma different from the discrimination they faced earlier. Merely because a person by exercise of choice changes their sex, it cannot be argued that the protection provided under Article 15 is not available to them., The Court must also be conscious of the fact that a person may face discrimination both due to their chosen identity and imposed identity. For example, even after a person changes their religion, it is possible that they face discrimination due to their new religious identity and their old caste or religious identity. This is not to say that all persons choose to change the characteristics that they are born with. While a few people by exercising their choice (successfully and unsuccessfully) alter what society assumes to be their ascribed status, a few others may not wish to change their trait., The discussion above clearly elucidates that the distinction between ascribed and achieved status is not as clear‑cut as it may seem. The understanding of Article 15(1) cannot be premised on the distinction between ascribed and achieved status. Such an understanding does not truly capture the essence of the anti‑discrimination principle. The anti‑discrimination principle incorporated in Article 15 identifies grounds on the basis of which a person shall not be discriminated. These grounds are markers of identity. The reason for constitutionally entrenching these five markers of identity (religion, caste, race, sex, and place of birth) is that individuals and groups have historically and socially been discriminated against based on these markers. These identities must be read in their historical and social context instead of through the narrow lens of ascription., When Article 15 is read in the broader manner indicated above, the word sex in Article 15 of the Constitution includes sexual orientation not only because of the causal relationship between homophobia and sexism but also because sex is used as a marker of identity. The word sex cannot be read independent of the social and historical context. Thus, sex in Article 15 includes within its fold other markers of identity related to sex and gender such as sexual orientation. Consequently, a restriction on the right to enter into a union based on sexual orientation would violate Article 15 of the Constitution., Recognising the right of queer persons to enter into a union will not lead to social chaos. The Union of India submitted that if non‑heterosexual couples are permitted to enter into a union, the State will also have to extend the right to incestuous, polygamous, or polyandrous relationships. To answer this question, the Supreme Court of India has to consider whether the State has the power to place restrictions on the right to enter into a union and, if so, what the extent of such restrictions may be., The right to enter into a union, like every other fundamental right, can be restricted by the State. It is now established that the courts must use the four‑prong proportionality test to assess if the infringement or restriction of a right is justified. The courts must also apply the integrated proportionality standard formulated in Akshay N. Patel v. Reserve Bank of India to test a violation of the right to enter into a union because the right is traceable to more than one provision of Part III. However, if the State restricts the right or has the effect of restricting the right (both directly and indirectly) based on any of the identities mentioned in Article 15, such a restriction would be unconstitutional., We do not accept the argument of the Union of India that permitting non‑heterosexual unions would lead to allowing incestuous, polyandrous, and polygamous unions for all communities (the personal laws of some religious and tribal communities currently permit polygamy or polyandry). The restriction on the ground of sexual orientation will violate Article 15 of the Constitution. On the other hand, the restriction on incestuous, polygamous or polyandrous unions would be based on the number of partners and the relationships within the prohibited degree. The Court will determine if the State's interest in restricting the right based on the number of partners and prohibited relationships is proportionate to the injury caused by the restriction of choice. In view of the discussion above, a restriction based on a marker of identity protected by Article 15 cannot be equated to a restriction based on the exercise of choice. For this reason, the apprehension of the Union of India is unfounded when tested on constitutional principles., Some petitioners have sought a declaration that the right to marry a person of their choice applies to transgender persons. The Union of India has given a mixed response to this claim. On one hand, it asserts that marriage must only be between biological men and biological women. On the other hand, the written submissions of the learned Attorney General state that the issues relating to transgender persons arising out of the Transgender Persons (Protection of Rights) Act, 2019 stand on a different footing and can be addressed without reference to the Special Marriage Act. Before addressing the issue, it is necessary to briefly advert to the difference between sex, gender, and sexual orientation, as well as to note the development of the law in relation to transgender persons., The term sex refers to the reproductive organs and structures that people are born with. Intersex persons are those whose sex characteristics do not fit the typical notions of male and female. Sex and gender are not the same. The Yogyakarta Principles describe one's gender identity as each person's deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms. The gender of a person may not correspond to the sex they were assigned at birth. A transgender person is one whose gender identity does not conform with their sex. Transgender people may choose to undergo hormonal therapy or surgery (commonly known as gender‑affirming surgery or sex reassignment surgery) to alter their bodies to make them conform to their gender. People may be transgender regardless of whether they choose to or are able to undergo surgery. As noted earlier, the term transgender does not fully capture the rich variation in gender identities in India. Historically and socio‑culturally, Indian persons with a gender‑queer identity go by different names including hijras, kothis, aravanis, jogappas, thirunambis, nupi maanbas and nupi maanbis. Persons who are known by these names may identify as male, female, or the third gender. Intersex persons are not the same as transgender persons. They have atypical reproductive characteristics. Intersex people may identify as male, female, or transgender., Sexual orientation differs from both sex and gender. The Yogyakarta Principles describe sexual orientation as each person's capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, the same gender, or more than one gender.
id_851	10	The sex of a person is determined by their reproductive organs and structure, their gender identity depends on their internal experience of gender, and their sexual orientation is defined by the gender of the people to whom they are attracted. The present batch of petitions seeks the recognition of the right of persons to marry regardless of their gender identity or sexual orientation. While previous segments of this judgment dealt with the rights of all persons regardless of gender identity or sexual orientation, this segment deals exclusively with the rights of persons who are transgender or intersex., The judgment of the Supreme Court of India in National Legal Services Authority v. Union of India (NALSA) recognized the right of transgender persons to be identified by the gender identity of their choice, as well as their right to full protection under the Constitution on equal terms with any other citizen of the country. The government was enjoined to recognize what the Court termed the third gender. The Court also noticed the absence of suitable legislation dealing with the rights of the transgender community and issued directions to the Union and State Governments to take steps to ensure that the transgender community could realize its rights to the fullest extent. The judgment in NALSA was affirmed by the Supreme Court of India in Justice K. S. Puttaswamy (supra) and again in Navtej Singh Johar v. Union of India (supra). The judgment in NALSA was critiqued for generalising the gender identities of hijras as belonging to the third gender alone. The directions at paragraphs 135.1 and 135.2 of NALSA must be read as recognising the right of all transgender persons (including hijras and those who are socio‑culturally known by other names) to be recognised by a gender of their choice., In 2019, Parliament enacted the Transgender Persons (Protection of Rights) Act to provide for the rights and welfare of transgender persons. This statute proscribes discrimination against transgender persons, provides for a system by which their identity may be recognised, prescribes that the appropriate government shall take welfare measures, recognises the right of residence and provides for the obligations of various parties with respect to their right to education, social security and health. It also creates a National Council for Transgender Persons., A challenge to the constitutional validity of the Transgender Persons Act is pending before a different bench of the Supreme Court of India. We leave the challenge to the validity of the statute to be decided in that or any other appropriate proceeding., During the course of the hearings, the Solicitor General advanced the argument that the Transgender Persons Act prohibits discrimination against any member of the queer community and that consequently the queer community in India no longer faces any stigma due to their gender identity or sexual orientation. He argued that the Act is a broad‑based legislation which includes all persons of the queer community within its ambit. This argument does not hold water. The legislation applies only to persons with a gender‑queer or transgender identity and not to persons whose sexual orientation is not heterosexual., The definition of a transgender person under the Act is: a person whose gender does not match the gender assigned to that person at birth and includes trans‑man or trans‑woman (whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or any other therapy), a person with intersex variations, gender‑queer and a person having such socio‑cultural identities as kinner, hijra, aravani and jogta. From the definition, it is clear that the enactment applies to persons whose gender does not match the gender assigned at birth, which includes transgender men and women, intersex persons, other gender‑queer persons and persons with socio‑cultural identities such as hijras., The word gender‑queer in Section 2(k) of the Act does not refer to sexual orientation but to gender identity. As discussed in the preceding paragraphs, gender identity is not the same as sexual orientation. The term transgender is not commonly understood as referring to persons with a sexual orientation other than heterosexual, nor does the Act use the word transgender to include persons of a different sexuality. The Union of India's argument that the Act applies to all queer persons including homosexuals, bisexuals etc. cannot be accepted. The legislation is clearly applicable only to those people with a gender identity that does not match the one assigned at birth., It is incorrect to state that transgender persons do not face any stigma or discrimination after 2020, when the Transgender Persons Act came into force. Enacting a statute does not have the same effect as waving a magic wand. For instance, the prohibition against discrimination has not resulted in society abstaining from discrimination overnight. The ground reality is that society continues to discriminate against transgender persons in various ways. Consistent respect for the rights of transgender persons may someday ensure that they are treated as equals, but that day is yet to arrive. Hence, the contention of the Union of India that transgender people are no longer stigmatized in view of the enactment of the Act cannot be accepted. Since the legislation does not apply to homosexual persons or persons of other sexual orientations, there is no question of such persons being free from discrimination or violence as a result of its enactment., Pursuant to the decision in NALSA, Parliament enacted the Transgender Persons Act which aims to give substance to the rights recognized by the Supreme Court of India. However, no such statute was forthcoming pursuant to the decision in Navtej Singh Johar. Although the primary issue in Navtej Singh Johar was whether Section 377 of the Indian Penal Code was constitutional, the ruling of the Supreme Court of India made it clear that sexual orientation cannot be a valid ground for discrimination or hostile treatment. The decision in Navtej Singh Johar was a clear indication that the LGBTQ community is entitled to equal treatment before law. Parliament is yet to enact a law that prohibits discrimination on the basis of sexual orientation and gives full effect to the other civil and social rights of LGBTQ persons. In the absence of such a law, members of the LGBTQ community will be unable to exercise their rights and freedoms to the fullest extent and will have to approach the courts for their enforcement on a case‑by‑case basis. This is not a desirable outcome. Courts are not always equipped to deal with all issues brought before them, and no citizen should have to institute legal proceedings for the enforcement of their rights every time they seek to exercise that right., Transgender persons in heterosexual relationships can marry under existing law. We are in agreement with the submission of the Union of India that the issue of whether transgender persons can marry ought to be decided separately from the issues arising under the Special Marriage Act in relation to homosexual persons or those of a queer sexual orientation. Parliament has recognised the rights of the transgender community by enacting the Transgender Persons Act. The Supreme Court of India is therefore bound to apply this statute while adjudicating the issue of whether transgender persons can marry under existing law., The right of transgender persons to equality under the Constitution and the right against discrimination was recognised by the Supreme Court of India in NALSA. To be equal means to be able to live without discrimination. Section 3 of the Transgender Persons Act codifies the prohibition against discrimination in the following terms: 'Prohibition against discrimination. No person or establishment shall discriminate against a transgender person on any of the following grounds, namely: (a) the denial, discontinuation or unfair treatment in educational establishments and services thereof; (b) unfair treatment in relation to employment or occupation; (c) denial or termination from employment or occupation; (d) denial or discontinuation of healthcare services; (e) denial or discontinuation or unfair treatment with regard to access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public; (f) denial or discontinuation or unfair treatment with regard to the right of movement; (g) denial or discontinuation or unfair treatment with regard to the right to reside, purchase, rent or otherwise occupy any property; (h) denial or discontinuation or unfair treatment in the opportunity to stand for or hold public or private office; and (i) denial of access to, removal from or unfair treatment in any government or private establishment in whose care or custody a transgender person may be.', As evident from clauses (a) to (i), this provision is a catch‑all provision which seeks to eliminate discrimination against the transgender community both in public as well as private spaces. It is worded in exceptionally broad terms., The prefatory portion of Section 3 states that no person or establishment shall discriminate against a transgender person. 'Establishment' is defined as any body or authority established by or under a Central Act or a State Act or an authority or body owned or controlled or aided by the Government or a local authority or a Government company and includes a Department of the Government. An establishment also means any company or body corporate or association or body of individuals, firm, cooperative or other society, association, trust, agency, or institution. Thus, establishment includes any public or private entity, authority or body, including any body of individuals., Clauses (a) to (i) of Section 3 list the spheres in which transgender persons cannot be discriminated against. They include education, employment, healthcare, movement, property, public or private office, and care and custody. It also bars any discrimination with respect to goods, accommodation, service, facility, benefit, privilege or opportunity which is dedicated to the use of the public or customarily available to the public., The prefatory portion of Section 3 read with Section 2(b) delineates who the prohibition against discrimination operates against. In other words, it defines the actors who are prohibited from discriminating against transgender persons. The term 'establishment' has been defined in the broadest possible terms to include all manner of undertakings or groups of people. Clauses (a) to (i) set forth the content of the anti‑discrimination principle. They describe the actions which amount to discrimination as well as the sphere in which the discrimination operates. The actions which amount to discrimination vary depending upon the sphere and include denial, discontinuation, unfair treatment, termination and removal. The spheres are broadly defined and extend to practically every aspect of life., While Section 18 of the Transgender Persons Act stipulates that certain actions amount to offences which may attract a penalty of six months to two years imprisonment as well as a fine, violations of Section 3 attract no such penalty. In fact, the Act does not expressly provide for a remedy for the infringement of Section 3., Section 8 enjoins the appropriate Government to take steps to secure full and effective participation of transgender persons and their inclusion in society. Since clauses (a) to (i) of Section 3 are intended to ensure the full and effective participation of transgender persons in all arenas of life, Section 8, properly understood, tasks the appropriate Government with ensuring that Section 3 is complied with by all whom it governs. Rule 10(4) of the Transgender Persons (Protection of Rights) Rules 2020 provides that the appropriate Government shall take adequate steps to prohibit discrimination in any government or private organisation, or private and public educational institution under its purview, and ensure equitable access to social and public spaces, including burial grounds. Rule 11 of these rules requires the appropriate Government to take adequate steps to prohibit discrimination in any government or private organisation or establishment, including in the areas of education, employment, healthcare, public transportation, participation in public life, sports, leisure and recreation, and opportunity to hold public or private office., Sections 10 of the Transgender Persons Act inter alia requires establishments to comply with the statute. This provision places a duty on establishments to comply with Section 3 and ensure that they do not discriminate against transgender persons. Section 11 requires establishments to set up a grievance redressal mechanism by designating a person as the complaint officer to deal with complaints relating to the violation of the provisions of the statute. Section 11 is one of the ways in which a person who alleges the violation of the Act can seek a remedy., If a public body or actor which falls within the definition of establishment in Section 2(b) of the Transgender Persons Act infringes Section 3, it is open to the aggrieved person to invoke the extraordinary jurisdiction of the High Courts under Article 226 of the Constitution. The High Courts are empowered to issue directions, orders or writs to any person or authority for the enforcement of the rights codified by Part III of the Constitution and for any other purpose. The body which satisfies the definition in Section 2(b) must be a person or authority under Article 226. The High Courts may exercise their jurisdiction against a body which is performing a public duty as well. While the jurisdiction of the Supreme Court of India under Article 32 is not as expansive as that of the High Courts under Article 226, the Supreme Court may rely on Section 3 to guide its interpretation of the law, to enforce the rights recognised by Part III of the Constitution., Aggrieved persons may also approach the High Court under Article 226 for the issuance of a direction, order or writ against the appropriate Government directing it to fulfil the mandate of Section 8 of the Transgender Persons Act. As discussed in the preceding paragraphs, Section 8 obligates the appropriate Government to prevent and address discrimination inter alia by private bodies. The High Court may direct the appropriate Government to perform its duties vis‑à‑vis private bodies. This is an imperfect remedy and there is a need for the Transgender Persons Act to provide for a more effective remedy for its enforcement, especially with respect to Section 3., Section 3 of the Transgender Persons Act prohibits the state from discriminating against transgender persons. Section 20 of the Act indicates that the statute is in addition to, and not in derogation from, any other law for the time being in force. Parliament was cognisant of the statutes governing marriage when it enacted the Transgender Persons Act and Section 3(e) in particular., The laws which govern marriage in the country specify conditions which the bride and the bridegroom must satisfy for their marriage to be recognised. This is true of personal laws as well as the Special Marriage Act. The structure of these enactments also regulates marriage between a husband and a wife. They use the words bride and bridegroom, wife and husband, male and female, or man and woman. These legislations regulate heterosexual marriages in India. Laws which are incidental to marriage such as the Domestic Violence Act, the Dowry Prohibition Act 1961 or Section 498A of the Indian Penal Code seek to address the hetero‑patriarchal nature of the relationship between a man and a woman., The gender of a person is not the same as their sexuality. A person is a transgender person by virtue of their gender identity. A transgender person may be heterosexual or homosexual or of any other sexuality. If a transgender person is in a heterosexual relationship and wishes to marry their partner (and if each of them meets the other requirements set out in the applicable law), such a marriage would be recognised by the laws governing marriage. This is because one party would be the bride or wife and the other party would be the bridegroom or husband. The laws governing marriage are framed in the context of a heterosexual relationship. Since a transgender person can be in a heterosexual relationship like a cis‑male or cis‑female, a union between a transwoman and a transman, or a transwoman and a cis‑man, or a transman and a cis‑woman can be registered under marriage laws. The transgender community consists of, inter alia, transgender men and transgender women. A transgender man has the right to marry a cisgender woman under the laws governing marriage in the country, including personal laws. Similarly, a transgender woman has the right to marry a cisgender man. A transgender man and a transgender woman can also marry. Intersex persons who identify as a man or a woman and seek to enter into a heterosexual marriage would also have a right to marry. Any other interpretation of the laws governing marriage would be contrary to Section 3 of the Transgender Persons Act and Article 15 of the Constitution., In Kanailal Sur v. Paramnidhi Sadhu Khan, the Supreme Court of India held that the first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. The terms bride and bridegroom, wife and husband, male and female, and man and woman in the statutes which regulate marriage cannot be read as governing marriages between cisgender men and cisgender women alone. Nothing in these statutes indicates that their intended application is solely to cisgender men and cisgender women. The plain meaning of the gendered terms used in these statutes indicates that transgender persons in heterosexual relationships fall within their fold. The contention of the Union of India that biological men and women alone fall within the ambit of these statutes cannot be accepted. No law or tool of interpretation supports the interpretation proposed by the Union of India. The provisions on the prohibited degrees of relationship in the laws governing marriage continue to apply. The judgment in NALSA also recognised the importance of the right of transgender persons to marry. Moreover, State Governments have formulated and implemented schemes which encourage and support transgender persons with respect to marriage., In Arunkumar v. Inspector General of Registration, the first petitioner was a man and the second petitioner was a woman who happened to be transgender. They married each other at a temple in Tuticorin and sought to have their marriage registered by the state, which refused. They then approached the Madras High Court under its writ jurisdiction. The Court held that (a) the expression 'bride' in the Hindu Marriage Act cannot have a static and immutable meaning and that statutes must be interpreted in light of the legal system in its present form; and (b) the fundamental right of the petitioners under Article 25 was infringed. The Court directed the respondent to register the marriage solemnised between the petitioners., The first segment of this judgment detailed how families or relatives of queer persons compel them to undergo conversion therapies (to convert their sexual orientation from homosexual to heterosexual) or make them marry a person of the opposite sex to 'cure' their homosexuality or for other reasons. Such pseudo‑medical treatments violate the right to health of queer persons as well as their right to autonomy and dignity. In terms of Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Conversion therapies and other treatments aimed at altering sexual orientation amount to cruel, inhuman and degrading treatment of queer persons. They deny their full humanity and cause severe mental suffering. The State has a duty to ensure that these inhumane practices do not continue. The deleterious effects of discrimination on the mental health of queer persons were also noticed by the Supreme Court of India in Navtej Singh Johar. Other segments of this judgment discussed instances of queer persons and couples being driven to suicide as a result of discrimination and violence. This phenomenon is undoubtedly related to the mental health of queer persons and the State is equally under an obligation to prevent suicides because of a person's gender identity or sexual orientation. Section 29 of the Mental Healthcare Act stipulates that (1) the appropriate Government shall have a duty to plan, design and implement programmes for the promotion of mental health and prevention of mental illness in the country; and (2) without prejudice to the generality of the provisions contained in sub‑section (1), the appropriate Government shall, in particular, plan, design and implement public health programmes to reduce suicides and attempted suicides in the country. The programmes for the promotion of mental health must include provisions for the mental health of queer persons. Programmes to reduce suicides and attempted suicides must include provisions which tackle queer identity and oppression arising from that identity as causes for suicidal tendencies. We direct the Union Government as well as the State Governments or governments of Union Territories to carry out the mandate of Section 29 in terms of the observations in this paragraph and to include appropriate modules or provisions which address the unique concerns of the queer community., In exercise of the rights to dignity, autonomy, privacy and health an individual (regardless of their gender identity) may choose to enter into a union with a person (who may be of the same sex as them). Once they enter into a relationship as life partners, a couple has the right and the freedom to determine the significance of that relationship as well as its consequences. A denial of this freedom would be a denial of many facets of Article 21., The right to enter into a union would be an illusion without the conditions which permit the unrestricted exercise of that right. Various parts of this judgment have detailed the violence and discrimination meted out to members of the LGBTQ community, either because of their gender identity or because of their sexual orientation. One form of this violence is that society often attempts to prevent LGBTQ persons from being with their partner, in a short‑term relationship, a long‑term relationship, a relationship where they choose to live together or any other kind of union. This happens in different ways: the couple may be forcibly separated, families may file complaints with the police leading to registration of FIRs and consequent harassment, or they may be married off to third parties without their consent. The families of LGBTQ persons as well as the police are the primary actors in such violence., The fundamental rights and freedoms codified by the Constitution demand that the LGBTQ community be left alone so that its members can live their lives as they see fit, in accordance with law. The Supreme Court of India has discussed these rights and freedoms in detail in this judgment. It is the duty of the state machinery (acting through any authority including the police) to protect these rights instead of participating in their violation. Unfortunately, the police often act in concert with the parents of LGBTQ persons to prevent the latter from exercising their rights. This Court finds this to be unacceptable., In Mansur Rahman v. Superintendent of Police, Coimbatore District, the petitioner was a man who had married a woman who happened to be transgender. He claimed that his parents and some persons who belonged to a political outfit were harassing and threatening him and approached the Madras High Court seeking police protection. The Court allowed the petition and directed the police to ensure that no harm befalls the petitioner and his wife., In Latha v. Commissioner of Police, the Madras High Court dismissed a writ petition for the issuance of a habeas corpus filed by the petitioner for the production of her sibling, who happened to be a transgender person. The Court found that the sibling had attained the age of majority and had voluntarily joined other transgender persons., In Sushma v. Commissioner of Police, a lesbian couple's families opposed their relationship. Both families filed complaints with the police that the couple were missing and an FIR was registered. The police visited the couple and interrogated them. The couple then filed a writ petition before the Madras High Court seeking a direction to the police not to harass them and for protection from any threat or danger to their safety and security from their families. The Court directed the parties to undergo counselling and the parents agreed to let their daughters live their lives as they wished. The Court also issued directions to ensure the protection of LGBTQ couples., The JJ Act was enacted to consolidate and amend the law catering to the basic needs of children. Chapter VIII (Sections 56 to 73) deals with the provisions relating to adoption. Section 2(49) of the JJ Act defines prospective adoptive parents to mean a person or persons eligible to adopt a child according to the provisions of Section 57.
id_851	11	Section 57 prescribes the eligibility criteria for prospective adoptive parents. The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him. In case of a couple, the consent of both the spouses for the adoption shall be required. A single or divorced person can also adopt, subject to fulfilment of the criteria and in accordance with the provisions of adoption regulations framed by the Authority. A single male is not eligible to adopt a girl child. Any other criteria that may be specified in the adoption regulations framed by the Authority., Section 57(1) prescribes general conditions relating to the physical, mental and financial well‑being of the prospective parents as well as their motivations. Sub‑section (2) states that the consent of both parties is required if a couple is adopting a child. Sub‑sections (3) and (4) state that single and divorced persons are not precluded from adopting. The only restriction is that a single male cannot adopt a girl child., The Ministry of Women and Child Development notified the regulations framed by the Central Adoption Resource Authority in exercise of the powers conferred under Section 68(c) read with Section 2(3) of the Juvenile Justice (Care and Protection of Children) Act. Regulation 5 of the Adoption Regulations prescribes the eligibility criteria for prospective adoptive parents. The relevant portion is: (1) The prospective adoptive parents shall be physically, mentally, emotionally and financially capable, shall not have any life‑threatening medical condition and shall not have been convicted of any criminal act or accused in any case of child‑rights violation. (2) Any prospective adoptive parent, irrespective of marital status and whether or not they have a biological son or daughter, can adopt a child subject to the following: (a) the consent of both spouses shall be required in case of a married couple; (b) a single female can adopt a child of any gender; (c) a single male shall not be eligible to adopt a girl child. (3) No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in cases of relative or step‑parent adoption., Clause (1) of Regulation 5 states that prospective adoptive parents must be physically, mentally, emotionally and financially stable and must not have any life‑threatening medical condition or be convicted of a criminal act or accused in a case concerning a violation of child rights. These general conditions are aimed at securing the best interest of the child and focus on physical, emotional and financial stability., Clause (2) stipulates that any person, irrespective of marital status and irrespective of whether they already have a biological child, can adopt. In case of a married couple, the consent of both spouses is required; a single female can adopt a child of any gender, while a single male shall not be eligible to adopt a girl child. Clause (3) prescribes a further restriction that a child shall be given in adoption to a couple only if they have at least two years of a stable marital relationship, except in cases of relative or step‑parent adoption., Although Regulation 5(2)(a) alone does not preclude unmarried couples from being prospective adoptive parents, a combined reading of Regulation 5(2)(a) and Regulation 5(3) elucidates that only married couples can be prospective adoptive parents and such couples must be in at least two years of stable marital relationship. Thus, while a person can adopt in an individual capacity, they cannot adopt a child together with their partner if they are not married., The Adoption Regulations are framed in exercise of the power conferred under the Juvenile Justice (Care and Protection of Children) Act. Section 57(5) of the Act grants the Central Adoption Resource Authority the power to specify any other criteria. A comparison of the criteria prescribed under the Act and the Adoption Regulations shows: the Act requires prospective adoptive parents to be physically fit, financially sound, mentally alert and highly motivated to provide a good upbringing; the Regulations add that they must not have been convicted of a criminal act and must not have a life‑threatening medical condition. The Act allows couples to adopt with the consent of both spouses, whereas the Regulations restrict adoption to married couples who have been in a two‑year stable marital relationship. Both the Act and the Regulations state that a single male is not eligible to adopt a girl child, while a single female may adopt a child of any gender., The petitioners submitted that the Adoption Regulations are ultra vires the provisions of the Juvenile Justice (Care and Protection of Children) Act because they bar unmarried couples from adopting. They also submitted that the distinction between married and unmarried persons for the purpose of adoption violates Article 14 of the Constitution., It is settled law that delegated legislation must be consistent with the parent Act and must not exceed the powers granted under the parent Act. The rule‑making authority must exercise the power for the purpose for which it is granted. The provisions of delegated legislation will be ultra vires if they are repugnant to the parent Act or exceed the authority granted by the parent Act. Section 57(5) delegates to the Central Adoption Resource Authority the power to prescribe any other criteria in addition to those prescribed by the provision, but this power cannot be read expansively. The Authority’s power to prescribe additional criteria is limited by the express provisions and legislative policy of the Juvenile Justice (Care and Protection of Children) Act., The Adoption Regulations place two restrictions on a couple who wishes to adopt: first, the couple must be married; second, the couple must have been in a stable marital relationship. We will now determine if the prescription of these two additional conditions is violative of the provisions of the Juvenile Justice (Care and Protection of Children) Act and the Constitution., Section 3 of the Juvenile Justice (Care and Protection of Children) Act prescribes the general principles to be followed in the administration of the Act, including the principle of best interest of the child, which requires that all decisions regarding the child be based on the child’s full development and potential., The provisions of the Act promote the best interest of the child and ensure their development. The eligibility criteria prescribed in Section 57 are an extension of that principle. The legislative intent behind prescribing physical and mental fitness is to ensure that the parents can prioritise the child’s well‑being. The requirement of consent of both spouses ensures that the child receives the attention and care of both partners and prevents adoption by a couple where one partner is unwilling to assume parental responsibility. The restriction on a single male adopting a girl child reflects the State’s interest in preventing child sexual abuse. Thus, the criteria in Section 57 are aimed at the welfare of the child., Section 57(2) does not stipulate that only married couples can adopt. It states that in case of a couple the consent of both spouses must be secured, which indicates that adoption by a married couple is not a statutory requirement. The usage of the word ‘spouse’ does not exclude unmarried couples from adopting., Regulation 5(3) bars unmarried partners from being prospective adoptive parents. The Regulations permit persons to adopt in an individual capacity but not jointly as an unmarried couple. Regulation 5(2) allows every person, irrespective of marital status, to be a prospective adoptive parent, and clause (a) requires consent of both spouses only if the couple is married. However, Regulation 5(3) expressly excludes unmarried couples by requiring that the couple must have been in two years of a stable marital relationship. Since the Act does not preclude unmarried couples from adopting, the Authority has exceeded its authority by prescribing this additional condition, which is contrary to the tenor of the Act and Section 57., The usage of the term ‘stable’ in Regulation 5(3) is vague. It is unclear whether the provision creates a legal fiction that all married relationships lasting two years automatically qualify as stable, or whether additional characteristics beyond those prescribed in Regulation 5(1) are required to characterize a marriage as stable. Hence, Regulation 5(3) exceeds the scope of the Juvenile Justice (Care and Protection of Children) Act., Regulation 5(3) of the Adoption Regulations classifies couples into married and unmarried for the purpose of adoption. The Authority’s intent to identify a stable household is discernible, but the assumption that only married couples can provide a stable household is not supported by data. While many married couples provide stability, not all do, and unmarried relationships can also be stable. Marriage is not necessarily the sole foundation of a family., It is now a settled position of law that classification per se is not discriminatory and violative of Article 14; Article 14 forbids class legislation and not reasonable classification. A classification is reasonable when (a) it is based on an intelligible differentia that distinguishes the persons or things grouped, and (b) the differentia has a rational nexus to the object sought to be achieved by the statute., The Adoption Regulations use marriage as a yardstick to classify couples. There is an intelligible differentia in using marriage to distinguish married from unmarried couples, but the differentia does not have a rational nexus with the object of ensuring the best interest of the child. The respondents have not placed any data on record to support the claim that only married relationships can provide stability. Separation from a married partner is regulated by law, whereas live‑in relationships are largely unregulated, but this does not automatically imply that marriage alone guarantees stability. Stability depends on various factors such as effort, involvement, safe home environment, work‑life balance and absence of violence. No material on record proves that only a married heterosexual couple can provide stability. The Supreme Court of India has recognized pluralistic values guaranteeing a right to different forms of association., The Union of India is required to submit cogent material to support its claim that only married partners are able to provide a stable household, but it has not done so. The Union submitted four studies titled (i) Child Attention‑Deficit Hyperactivity Disorder in same‑sex parent families in the United States: Prevalence and Comorbidities, (ii) High School graduation rates amongst children of same‑sex households, (iii) Children in planned lesbian families: Stigmatization, psychological adjustment and protective factors, and (iv) Children in three contexts: Family, Education and Social Development. These studies, submitted by Ms Aishwarya Bhati, Additional Solicitor General, conclude that non‑heterosexual couples cannot effectively take up the role of parents. The studies neither indicate that only married couples can be in a stable relationship nor that only married couples have the ability to effectively parent children. Consequently, the Union has not substantiated its claim that unmarried couples cannot be in a stable relationship or that a single parent who adopts would provide a more stable environment than an unmarried couple., The National Commission for Protection of Child Rights submitted that excluding queer persons from adopting children is backed by cogent reasons. Ms Bhati cited studies that claimed children with same‑sex parents are more likely to suffer from ADHD, have lower high‑school graduation rates, experience stigmatization, and perform less well academically compared to children of married heterosexual parents. The studies referenced include D. Paul Sullins, British Journal of Medicine & Medical Research 6(10):987‑998, 2015; Douglas W. Allen, Rev Econ Household; and Henry M.W. Bos & Frank Van Balen, Culture, Health and Sexuality 10:3, 221‑236, among others., Dr. Menaka Guruswamy, appearing for the Delhi Commission for Protection of Child Rights, argued that there is no empirical evidence that non‑heterosexual couples are unfit parents or that children raised by same‑sex couples suffer compromised psychosocial development. She relied on the American Psychological Association report ‘Lesbian and Gay Parenting’, which concluded that the home environment provided by non‑heterosexual couples is not different from that provided by heterosexual parents. She also cited studies from Brazil, Portugal and the Netherlands showing that children raised by same‑sex couples perform at least as well as those raised by heterosexual parents, and in some cases outperform them academically., The burden of proof for a violation of Article 14 and Article 15 differs. Article 14 prohibits unreasonable classification, while Article 15 prohibits discrimination based on identity. The interpretation of Article 15 has evolved to incorporate an effects‑based approach. The State must submit cogent evidence that the classification has a rational nexus with the object sought to be achieved; it cannot rely on identity‑based discrimination without justification. Protective provisions, such as those in the Transgender Persons Act, are not automatically discriminatory under Article 15., For example, it cannot be argued that the Transgender Persons Act is violative of Article 15 because it provides special provisions to safeguard the interest of the transgender community in exclusion of cis‑gender persons. A classification based on the identities protected by Article 15 does not automatically lead to discrimination. The Supreme Court of India in State of Kerala v. N.M. Thomas held that protective provisions such as reservations are not an exception to anti‑discrimination law but are in furtherance of the principle of equality.
id_851	12	Supreme Court of India examines if the law is discriminatory not based on whether there is a classification based on the identity but whether there is discrimination based on the identity. While doing so it determines if it is a protective provision. However, once it is established that the law discriminates based on protected identities, it cannot be justified based on state interest. Thus, once it is proved that the law discriminates based on sexual orientation as in this case (because it disproportionately affects queer persons), no amount of evidence or material submitted by the State that such discrimination is based on the state's interest can be used as a justification., We are of the opinion that if the children of persons from the queer community suffer it is because of the lack of recognition (at a legal and social plane) to same‑sex unions. In fact, one of the studies submitted by Ms. Aishwarya Bhati highlights this aspect. The stigmatization (if any) faced by the children parented by persons of the queer community is because of the inherent biases that society holds against the queer community, and in this context, biases about their fitness to be parents. Thus, it is in the interest of children that the State endeavours to take steps to sensitise the society about queer relationships., In fact, the Indian Psychiatric Society which consists of 7,000 mental health professionals in India released a statement stating that children brought up by non‑heterosexual parents may face stigmatization and that it is important that the civic society is adequately sensitized: The Indian Psychiatric Society is very cognizant that a child adopted into a same‑gendered family may face challenges, stigma and/or discrimination along the way. It is imperative that, once legalized, such parents of the LGBTQA spectrum bring up the children in a gender‑neutral, unbiased environment. It is also of utmost importance that the family, community, school and society in general are sensitized to protect and promote the development of such a child, and prevent stigma and discrimination at any cost., The law cannot make an assumption about good and bad parenting based on the sexuality of individuals. Such an assumption perpetuates a stereotype based on sexuality (that only heterosexuals are good parents and all other parents are bad parents) which is prohibited by Article 15 of the Constitution. This assumption is not different from the assumption that individuals of a certain class or caste or religion are better parents. In view of the above observations, the Adoption Regulation is violative of Article 15 for discriminating against the queer community., In view of the observations above, Regulation 5(3) is ultra vires the parent Act for exceeding the scope of delegation and for violating Articles 14 and 15 of the Constitution. It is settled that courts have the power to read down a provision to save it from being declared ultra vires. Regulation 5(3) is read down to exclude the word marital. It is clarified that the reference to a couple in Regulation 5 includes both married and unmarried couples including queer couples. In bringing the regulations in conformity with this judgment, Central Adoption Resource Authority is at liberty to ensure that the conditions which it prescribes for a valid adoption subserve the best interest and welfare of the child. The welfare of the child is of paramount importance. Hence, the authorities would be at liberty to ensure that the familial circumstances provide a safe, stable, and conducive environment to protect the material well‑being and emotional sustenance of the child. Moreover, Central Adoption Resource Authority may insist on conditions which would ensure that the interest of the child would be protected even if the relationship of the adoptive parents were to come to an end in the future. Those indicators must not discriminate against any couple based on sexual orientation. The criteria prescribed must be in tune with constitutional values. The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together is equally applicable to unmarried or queer couples who seek to jointly adopt a child., The forms in Schedules II (child study report), III (medical examination report and classification of special needs of a child), VI (online registration form) and VII (home study report) use the phrases male applicant and female applicant. We have already concluded above that both married and unmarried couples can adopt under Regulation 5 of the Adoption Regulations. After the judgments of this Court in Gita Hariharan v. Reserve Bank of India, State Bank of Travancore v. Mohammed Khan, Indra Das v. State of Assam, Navtej Singh Johar v. Union of India and National Legal Services Authority v. Union of India recognising non‑binary identity and their freedom to choose a partner irrespective of the sexual identity, reference to a couple cannot be restricted to heterosexual relationships. It will include all forms of queer relationships. The phrases male applicant and female applicant (in case of applicant couples) in Schedules II, III, VI and VII of the Adoption Regulations limit reference to only heterosexual couples and have the effect of precluding persons in queer relationships from adopting, violating the anti‑discrimination principle in Article 15(1). Thus, the phrases male applicant and female applicant (in case of applicant couples) in Schedules II, III, VI and VII of the Adoption Regulations are substituted with the phrases prospective adoptive parent 1 and prospective adoptive parent 2 (in case of applicant couples)., In 2022, Central Adoption Resource Authority issued an Office Memorandum stipulating that a single prospective adoptive parent in a live‑in relationship will be ineligible to adopt a child. The Office Memorandum further provides that this decision is taken in line with Regulation 5(3) of the Adoption Regulations which stipulates that a child can only be placed with a stable family and that a single applicant in a live‑in relationship cannot be considered to be part of a stable family. It has been noticed from Home Study Reports that some single prospective adoptive parents registered with Central Adoption Resource Authority for the adoption process are in relationship with their live‑in partner. The cases of single prospective adoptive parents engaged in live‑in relationships were discussed in the Steering Committee of Central Adoption Resource Authority during its 31st Meeting held on 18 April 2022. It was decided to follow the earlier decision of the 14th Steering Committee Meeting held on 10 May 2018 that the cases of single prospective adoptive parents in a live‑in relationship with a partner will not be considered eligible to adopt a child and their registration from concerned agencies will not be considered for approval. The decision was taken in line with Regulation 5(3) of the Adoption Regulations 2017. The authority would like the children to be placed only with a stable family and a single applicant in a live‑in relationship cannot be considered as a stable family., Central Adoption Resource Authority in its 31st meeting held on 18 April 2022, in terms of the decision taken in the Steering Committee Meeting held on 10 May 2018, resolved that an application received by a prospective adoptive parent who is in a live‑in relationship may not be considered on the basis of Regulation 5(3) of the Adoption Regulations. The resolution states: Reference is drawn to the Steering Committee Meeting held on 10 May 2019 wherein the Steering Committee had not approved adoption to prospective adoptive parents staying in live‑in relationships. However, the NOC section has received three cases of children reserved from the Special Need portal and on examination of the Home Study Report it has been observed that the parents have been in a live‑in relationship. In this regard the NOC committee had not approved inter‑country cases of the children on the basis of Regulation 5(3) which states that no child shall be given in adoption to a couple unless they have at least two years of stable marital relationship. Since the matter involves cases of special needs children, the issue may be discussed in the Steering Committee. It was decided to go with the earlier decision of the Steering Committee and the same rule should be applicable as that of the domestic prospective adoptive parents. Any application received from live‑in prospective adoptive parents may not be considered on the basis of Regulation 5(3) of the Adoption Regulations., The Central Adoption Resource Authority Circular prescribes a condition in addition to the conditions prescribed in the Adoption Regulations. While the Adoption Regulations exclude unmarried couples from jointly adopting a child, the Circular restricts the ability of a person who is in a live‑in relationship to adopt in their individual capacity. The Circular stipulates that the decision is in pursuance of Regulation 5(3) of the Adoption Regulations which requires couples to be in a stable relationship., Regulation 5(1) of the Adoption Regulations prescribes a general criteria (in the form of a guiding principle) for prospective adoptive parents which is that they must be physically, mentally, and emotionally fit, they must not be convicted of a criminal act, and they must not have a life‑threatening disease. These criteria are equally applicable to couples and persons who wish to adopt in their individual capacity. All the other subsequent provisions in Regulation 5 are specific to couples (that is, the requirement of a stable relationship and the consent of both parties) and individuals (that is, that a male cannot adopt a girl child). Hence, the additional criterion prescribed by the Circular for a person to adopt in an individual capacity is not traceable to the principles in Regulations 5(1) and 5(2)(c). The condition imposed by the Circular is neither traceable to the principles in Regulations 5(1) and 5(2)(c) nor is it traceable to any of the provisions of the Juvenile Justice Act. The Circular has exceeded the scope of the Adoption Guidelines and the Juvenile Justice Act., According to the Adoption Regulations, unmarried couples cannot jointly adopt a child. Though the additional criteria prescribed by the Circular would also affect a heterosexual person's eligibility to adopt a child, it would disproportionately affect non‑heterosexual couples since the State has not conferred legal recognition in the form of marriage to the union between non‑heterosexual persons. When the Circular is read in light of this legal position, a person of the queer community would be forced to choose between their wish to be an adoptive parent and their desire to enter into a partnership with a person they love and have affinity with. This exclusion has the effect of reinforcing the disadvantage already faced by the queer community. For these reasons and the reasons recorded in Section D (xiii)(a)(III), the Circular is violative of Article 15 of the Constitution., In the opinion authored by Justice Ravindra Bhat, my learned brother states that unenumerated rights are recognised by courts in response to State action that threaten the freedom or right directly or indirectly. With due respect, such a narrow understanding of fundamental rights turns back the clock on the rich jurisprudence that the Indian courts have developed on Part III of the Constitution. This Court has held in numerous cases that the rights of persons are infringed not merely by overt actions but also by inaction on the part of the State. Some of these precedents are referred to below., In National Legal Services Authority v. Union of India, this Court held that the State by rendering the transgender community invisible and failing to recognize their gender identity deprived them of social and cultural rights. This Court recognised the duty of the State to enable the exercise of rights by the transgender community and issued a slew of directions to enforce this duty. Justice A.K. Sikri in his opinion issued the following declarations and directions: 1. Hijras, eunuchs, apart from binary gender, be treated as third gender for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature. 2. Transgender persons' right to decide their self‑identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender. 3. We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. 4. Centre and State Governments are directed to operate separate HIV sero‑surveillance centres since hijras/transgenders face several sexual health issues. 5. Centre and State Governments should seriously address the problems being faced by hijras/transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one's gender is immoral and illegal. 6. Centre and State Governments should take proper measures to provide medical care to transgender persons in hospitals and also provide them separate public toilets and other facilities. 7. Centre and State Governments should also take steps for framing various social welfare schemes for their betterment. 8. Centre and State Governments should take steps to create public awareness so that transgender persons will feel that they are also part and parcel of social life and not treated as untouchables. 9. Centre and State Governments should also take measures to regain their respect and place in society which once they enjoyed in our cultural and social life., In Union of India v. Association of Democratic Reforms, proceedings under Article 136 were initiated against the judgment of the High Court of Delhi which recognised the rights of citizens to receive information regarding criminal activities of a candidate to the legislative assembly. The High Court directed the Election Commission to inter alia secure information on whether the candidate is accused of any offence and the assets possessed by a candidate. A three‑Judge Bench of this Court dismissed the appeal and held that it is imperative that the electorate possesses sufficient information to enable them to exercise their right to vote. The observations are extracted below: From the aforesaid paragraph, it can be deduced that the members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves and this would include their decision of casting votes in favour of a particular candidate. If there is a disclosure by a candidate as sought for then it would strengthen the voters in taking appropriate decision of casting their votes. Finally, in our view this Court would have ample power to direct the Commission to fill the void, in the absence of suitable legislation covering the field and the voters are required to be well informed and educated about contesting candidates so that they can elect a proper candidate by their own assessment. It is the duty of the executive to fill the vacuum by executive orders because its field is coterminous with that of the legislature, and where there is inaction by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations to provide a solution till such time the legislature acts to perform its role by enacting proper legislation to cover the field. The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. Therefore, if the candidate is directed to declare his/her spouse's and dependants' assets immovable, movable and valuable articles it would have its own effect., While the precedents on the subject are not multiplied in the text of the judgment, some of the judgments on this point are footnoted. In view of the discussion above, the observation of Justice Bhat that an overt action of the State is necessary for the court to direct the State to create enabling conditions has no jurisprudential basis. Neither the provisions of the Constitution nor the earlier decisions of this Court create such a distinction. In fact, as I have discussed in detail, Article 32 of the Constitution states that the Supreme Court shall have the power to issue directions for the enforcement of rights conferred by Part III without making any distinction between action and inaction by the State., I also disagree with the observations of Justice Bhat that in the absence of a legal regime, the power of this Court to issue directions to enable the facilitation of rights is limited. In Sheela Barse v. Union of India, the petitioner, a social activist, brought to the attention of this Court that the State of West Bengal jailed persons with mental disabilities who are not suspected, accused, charged of, or convicted for committing any offence but only for the reason that they are mentally ill. The decision to jail them was made based on an instant assessment of their mental health. This Court held that the admission of such mentally ill persons to jails was illegal and unconstitutional. This Court also directed that hospitals shall be immediately upgraded, psychiatric services shall be set up in all teaching and district hospitals, including filling posts for psychiatrists, and integrating mental health care with the primary health care system., In People's Union for Civil Liberties v. Union of India, the petitioner submitted that the right to livelihood implies that the State has a duty to provide food to people. In a series of orders, this Court identified government schemes which constituted legal entitlements of the right to food and outlined the manner of implementing these schemes., My learned brother relies on the example of Article 19(1)(d) to buttress his point. He states that in the absence of a law which casts a duty on the State to provide transportation through roads, a citizen cannot approach the court and seek the construction of a road to enforce the right to move freely. The opinion of my learned brother fails to have noted the judgment of a three‑Judge Bench of this Court in State of Himachal Pradesh v. Umed Ram Sharma. In this case, a letter petition was written to the High Court claiming that the construction of a road which would benefit the residents of the village and in particular, the members of the Dalit community was stopped by the State. The High Court directed the Superintending Engineer of the Public Works Department to complete the construction of the road. This Court dismissed the appeal against the judgment of the High Court observing that the Constitution places a duty on the State to provide roads for residents of hilly areas because access to roads is encompassed in their right to secure a quality life. This Court recognised that the right under Article 21 of the Constitution is violated if the State does not build roads for effective communication and transportation. Thus, even in the absence of a law which requires the State to build roads, such a duty was imposed on the State on an interpretation of Part III of the Constitution., Bhat, J. holds that: (i) the legal dimension of marriage in the United States is different from the legal dimension of marriage in India; (ii) the legality of a marriage in the United States is solely dependent on a validly obtained licence; (iii) in India, the legal status of a marriage stems from personal law and customs; and (iv) the terms of marriage are set, to a large extent, independently of the state. While there is no doubt that marriage predates the state and the existence of what we now consider law, I am unable to agree with the conclusion of my learned brother that the status of a marriage in India stems only from personal law and customs and that the terms of marriage are largely set independently of the state, for two reasons: First, the legal status of a married couple stems from statute. Once the state began regulating marriage, the validity (and consequently, the status) of marriage is traceable to law. While law may provide that a marriage is valid if it was performed in accordance with custom, it is beyond cavil that the only reason that a custom is relevant (for the purposes of law) is because of law itself. Therefore, it is law (through statutes) that accords significance to personal law and customs and it is statutes that may (and often do) deviate from personal law and customs. Second, the number of legislations which govern marriage as well as the detailed framework which they set out makes it immediately evident that the terms of marriage are not set independently of the state, but by the state itself. From divorce to custody to maintenance to domestic violence and offences, almost every aspect of marriage is regulated by the state. I have discussed the manner in which marriage has evolved (through state regulation) in detail in Section D(iii)(b) of my judgment. Thus, marriage as an institution cannot anymore be viewed as solely traceable to customs and traditions after the State's interference to regulate the institution. The State's reformation of the institution has slowly but evidently changed the nature of the institution itself. Under the Constitution, the state is empowered to reform social institutions including marriage in line with constitutional values., Contrary to what is stated in the judgment of Bhat, J., the directions in my judgment do not require the state to create social or legal status, or a social institution. The directions are with a view to recognizing the choice that a person makes for themselves when they choose another to be their partner for life. The directions seek to make that choice a meaningful one. Nowhere do they create an institution of any kind. Rather, they give effect to the fundamental rights in Part III of the Constitution. This is the mandate of the Supreme Court of India under Article 32. The Supreme Court shall have power to issue directions or orders or writs for the enforcement of any of the rights conferred by this Part. No response is forthcoming to my detailed exposition of the scope of the powers of this Court under Article 32 in Section D(i) of my judgment. In fact, Justice Bhat himself recognizes that courts often enable and oblige the state to take measures. My learned brother also arrives at the conclusion that the state is indirectly discriminating against the queer community but fails to exercise the power vested in this Court by Article 32 to alleviate this discrimination in any way. This Court is not through judicial diktat creating a legal regime exclusively for persons of the queer community but merely recognising the duty of the State to recognise the entitlements flowing from exercising the right to choose a life partner., Justice Bhat, J. states that no one has contended that two queer persons have the right of a sustained partnership which is traceable to Articles 19(1)(a), (c), (d) and the right to conscience under Article 25. This is not true, as demonstrated by the segment of this judgment on the submissions made by the petitioners., Justice Bhat, J. has held that: a. The classification in a legislation is to be discerned by gathering the object sought to be achieved by the enactment. The object of the Special Marriage Act was to enable inter‑faith heterosexual marriage. The classification is therefore between same‑faith heterosexual couples and inter‑faith heterosexual couples. It does not discriminate against queer persons; and b. The test for discrimination is not the object of the statute but its effect and impact. The effect of the state regulating marriage only for heterosexual couples is that it adversely impacts them, results in their exclusion, results in denial of entitlements/benefits, and that this injustice and inequity results in discrimination. The state must address this deprivation and take remedial action. My learned brother contradicts himself when he holds that the Special Marriage Act is not discriminatory by relying on its object, on the one hand, and that the state has indirectly discriminated against the queer community because it is the effect and not the object which is relevant, on the other. My learned brother discusses in detail the deprivation, exclusion, and discrimination faced by the queer community. In effect, he: (i) recognizes that they have a right not to be discriminated against; and (ii) holds that the actions of the state have the effect of discriminating against them. However, he does not take the step which logically follows from such a ruling which is to pass directions to obviate such discrimination and ensure the realization of the rights of the queer community. I cannot bring myself to agree with this approach. The realization of a right is effectuated when there is a remedy available to enforce it. The principle of ubi jus ibi remedium (that an infringement of a right has a remedy) which has been applied in the context of civil law for centuries cannot be ignored in the constitutional context. Absent the grant of remedies, the formulation of doctrines is no more than judicial platitude., Justice Bhat, J. highlights that the central question which arises for the consideration of this Court is whether the absence of law or a regulatory framework, or the failure of the State to enact law, amounts to discrimination that is protected under Article 15. He states that there is no known jurisprudence or case law yet pointing to the absence of law being considered as discrimination as understood under Article 15. Here, I would like to sound a note of caution (which, though obvious, bears repetition) the manner in which an issue is framed impacts the analysis of the issue. In fact, Justice Bhat's reasoning deviates from the jurisprudence that this Court has developed on the interpretation of Article 15. Justice Bhat's reasoning assesses the objective of a law instead of its effect. This is best understood with the help of an example. Suppose the state were to enact a law which enabled only citizens of a particular caste to avail the services of a particular government hospital but which did not expressly prohibit members of other castes from availing its services. This law contains various conditions which must be satisfied before services of the hospital can be availed (such as a list of diseases which it treats or how advanced a particular disease is). This law can be understood as being an enabling law or a law which regulates or it can be understood (in its true sense) as a law which has the effect of excluding certain groups on the basis of prohibited markers of identity. This remains true not only of a hospital but of any service or scheme or institution that one can imagine. Hence, what is framed as the absence of a law or an enabling law can have the same restrictive effect as a law which expressly bars or prohibits certain actions or excludes certain groups., I disagree with the observations of my learned brother that the State has a positive obligation under Article 21 but such an obligation cannot be read into other fundamental rights other than Article 21. I reiterate the observations made in Section D(ix)(a)., Justice Bhat, J. distinguishes the judgments in Vishaka, Common Cause and National Legal Services Authority from the present case by holding that in each of these cases, directions were passed because the inadequacies were acute and intolerable and faced by entire groups. However, he does not explain why the inadequacies faced by the queer community in this case are mild or tolerable.
id_851	13	There is neither a test nor standard known to law by which discrimination, or the violation of a fundamental right, must reach a level of intolerability for Supreme Court of India to exercise its jurisdiction. Regardless of the severity of the violation, it is the duty of Supreme Court of India to protect the exercise of the right in question. Further, in this case too, the rights of an entire group (being the queer community) are at issue., The opinion of Justice Bhat highlights that the reading of the Adoption Regulations to permit unmarried couples to adopt would have disastrous outcomes because the law, as it stands today, does not guarantee the protection of the child of unmarried parents adopting jointly. A reading of the numerous laws relating to the rights of children qua parents indicates that the law does not create any distinction between children of married and unmarried couples so long as they are validly adopted. Section 12 of the Hindu Adoptions and Maintenance Act 1956 states that an adopted child shall be deemed to be the child of their adopted parents for all purposes from the date of adoption. Similarly, Section 63 of the Juvenile Justice (Care and Protection of Children) Act also creates a deeming fiction. The provision states that a child in respect of whom an adoption order is issued shall become the child of the adoptive parents and the adoptive parents shall become the parents of the child as if the child had been born to the adoptive parents, including for the purposes of intestacy., In view of the deeming fiction created by Section 12 of the Hindu Adoptions and Maintenance Act 1956 and Section 63 of the Juvenile Justice (Care and Protection of Children) Act, an adopted child is a legitimate child of the adopting couple. The manner of determination of legitimacy prescribed by Section 112 of the Indian Evidence Act 1872 shall not apply in view of the deeming fiction created by those sections. Thus, all the benefits which are available under the law to a legitimate child (who has been validly adopted) of a married couple will equally be available to the legitimate child of an unmarried couple. For example, Section 20 of the Hindu Adoptions and Maintenance Act 1956, which provides that a Hindu is to maintain their children, does not make any distinction between a legitimate child of a married and an unmarried couple. Similarly, succession law in India does not differentiate between the child of a married and an unmarried couple if the child has been adopted by following the due process of law. Further, the breakdown of the relationship of an unmarried couple will not lead to a change in applicable law because the child will continue to be a legitimate child even after the breakdown of the relationship. It is therefore unclear what the disastrous outcomes referred to are. My learned brother has also failed to address whether Regulation 5(3) is discriminatory for distinguishing between married and unmarried couples for the purpose of adoption and for the disproportionate impact that it has on the members of the queer community while simultaneously holding that the State cannot, on any account, make regulations that are facially or indirectly discriminatory on the ground of sexual orientation., The provision confers legitimacy on a child born during the continuance of a valid marriage or within 280 days since the dissolution of marriage., Counsel for the petitioners and some counsel for the respondents advanced extensive submissions on the various forms of violence and discrimination that society and the state machinery inflict upon the queer community, especially queer couples. This has been discussed in detail in the prefatory part of the judgment. Counsel sought directions to obviate such violence and discrimination., The Union Government, State Governments, and Governments of Union Territories are directed to: Ensure that the queer community is not discriminated against because of their gender identity or sexual orientation; Ensure that there is no discrimination in access to goods and services to the queer community, which are available to the public; Take steps to sensitize the public about queer identity, including that it is natural and not a mental disorder; Establish hotline numbers that the queer community can contact when they face harassment and violence in any form; Establish and publicise the availability of safe houses or Garima Grehs in all districts to provide shelter to members of the queer community who are facing violence or discrimination; Ensure that treatments offered by doctors or other persons, which aim to change gender identity or sexual orientation are ceased with immediate effect; Ensure that inter‑sex children are not forced to undergo operations with regard only to their sex, especially at an age at which they are unable to fully comprehend and consent to such operations; Recognize the self‑identified gender of all persons including transgender persons, hijras, and others with sociocultural identities in India, as male, female, or third gender. No person shall be forced to undergo hormonal therapy or sterilisation or any other medical procedure either as a condition or prerequisite to grant legal recognition to their gender identity or otherwise., The appropriate Government under the Mental Healthcare Act must formulate modules covering the mental health of queer persons in their programmes under Section 29(1). Programmes to reduce suicides and attempted suicides (envisaged by Section 29(2)) must include provisions which tackle queer identity., The following directions are issued to the police machinery: There shall be no harassment of queer couples by summoning them to the police station or visiting their places of residence solely to interrogate them about their gender identity or sexual orientation; They shall not force queer persons to return to their natal families if they do not wish to return to them; When a police complaint is filed by queer persons alleging that their family is restraining their freedom of movement, they shall on verifying the genuineness of the complaint ensure that their freedom is not curtailed; When a police complaint is filed apprehending violence from the family for the reason that the complainant is queer or is in a queer relationship, they shall on verifying the genuineness of the complaint ensure due protection; Before registering an FIR against a queer couple or one of the parties in a queer relationship (where the FIR is sought to be registered in relation to their relationship), they shall conduct a preliminary investigation in terms of Lalita Kumari v. Government of Uttar Pradesh, to ensure that the complaint discloses a cognizable offence. The police must first determine if the person is an adult. If the person is an adult and is in a consensual relationship with another person of the same or different gender or has left their natal home of their own volition, the police shall close the complaint after recording a statement to that effect., In view of the discussion above, the following are our conclusions: Supreme Court of India is vested with the authority to hear this case. Under Article 32, Supreme Court of India has the power to issue directions, orders, or writs for the enforcement of the rights in Part III; Queerness is a natural phenomenon known to India since ancient times. It is not urban or elite; There is no universal conception of the institution of marriage, nor is it static. Under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage; Marriage has attained significance as a legal institution largely because of regulation by the state. By recognizing a relationship in the form of marriage, the state grants material benefits exclusive to marriage; The State has an interest in regulating the intimate zone to democratize personal relationships; The issue of whether the Constitution recognizes the right to marry did not arise before Supreme Court of India in Justice K.S. Puttaswamy (J) (supra), Shafin Jahan (supra), and Shakti Vahini (supra); The Constitution does not expressly recognize a fundamental right to marry. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law. However, several facets of the marital relationship are reflections of constitutional values including the right to human dignity and the right to life and personal liberty; Supreme Court of India cannot either strike down the constitutional validity of the Special Marriage Act or read words into the Special Marriage Act because of its institutional limitations. Supreme Court of India cannot read words into the provisions of the Special Marriage Act and provisions of other allied laws such as the Indian Succession Act and the Hindu Succession Act because that would amount to judicial legislation. The Court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain; The freedom of all persons including queer couples to enter into a union is protected by Part III of the Constitution. The failure of the state to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime. The state has an obligation to recognize such unions and grant them benefit under law; In Article 15(1), the word sex must be read to include sexual orientation not only because of the causal relationship between homophobia and sexism but also because the word sex is used as a marker of identity which cannot be read independent of the social and historical context; The right to enter into a union cannot be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom is available to all persons regardless of gender identity or sexual orientation; The decisions in Navtej Singh Johar v. Union of India (supra) and Justice K.S. Puttaswamy (J) (supra) recognize the right of queer couples to exercise the choice to enter into a union. This relationship is protected from external threat. Discrimination on the basis of sexual orientation will violate Article 15; Transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage; Intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage; The state must enable the LGBTQ community to exercise its rights under the Constitution. Queer persons have the right to freedom from coercion from their natal families, agencies of the state including the police, and other persons; Unmarried couples (including queer couples) can jointly adopt a child. Regulation 5(3) of the Adoption Regulations is ultra vires the Juvenile Justice (Care and Protection of Children) Act, Articles 14 and 15. Regulation 5(3) is read down to exclude the word marital. The reference to a couple in Regulation 5 includes both married and unmarried couples as well as queer couples. The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together is equally applicable to unmarried couples who seek to jointly adopt a child. However, while framing regulations, the state may impose conditions which will subserve the best interest and welfare of the child in terms of the exposition in the judgment; The Central Adoption Resource Authority Circular disproportionately impacts the queer community and is violative of Article 15; The Union Government, State Governments, and Governments of Union Territories shall not discriminate against the freedom of queer persons to enter into union with benefits under law; We record the assurance of the Solicitor General that the Union Government will constitute a Committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in unions. The Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community as well as members of the queer community. The Committee shall, before finalizing its decisions, conduct wide stakeholder consultation amongst persons belonging to the queer community, including persons belonging to marginalized groups and with the governments of the States and Union Territories. The Committee shall, in terms of the exposition in this judgment, consider the following: Enabling partners in a queer relationship (i) to be treated as a part of the same family for the purposes of a ration card; and (ii) to have the facility of a joint bank account with the option to name the partner as a nominee, in case of death; In terms of the decision in Common Cause v. Union of India, as modified by Common Cause v. Union of India, medical practitioners have a duty to consult family or next of kin or next friend, in the event patients who are terminally ill have not executed an Advance Directive. Parties in a union may be considered family for this purpose; Jail visitation rights and the right to access the body of the deceased partner and arrange the last rites; Legal consequences such as succession rights, maintenance, financial benefits such as under the Income Tax Act 1961, rights flowing from employment such as gratuity and family pension and insurance. The report of the Committee chaired by the Cabinet Secretary shall be implemented at the administrative level by the Union Government and the governments of the States and Union Territories., The petitions in these proceedings are disposed of in terms of this judgment. Pending applications (if any) are disposed of. [Dr Dhananjaya Y. Chandrachud] New Delhi; October 17, 2023 Versus with: This case presents a new path and a new journey in providing legal recognition to non‑heterosexual relationships. I have had the benefit of the exhaustive and erudite judgment of the Honorable Chief Justice Dr. D.Y. Chandrachud; which enumerates the prevalence of these relationships in history, the Constitutional recognition of the right to form unions (in other words civil unions), and the necessity of laying down guidelines to protect non‑heterosexual unions. In a way, this is a step forward from the decriminalisation of private consensual sexual activities by the LGBTQ+ community in Navtej Singh Johar & Ors. v. Union of India, Through Secretary, Ministry of Law & Justice., The judgment penned down by the Honorable Chief Justice considers all aspects of the challenge. However, the subject matter itself persuades me to pen down a few words while broadly agreeing with his judgment. Historical prevalence of non‑heterosexual unions. In their submissions, the Respondents raised doubts about the social acceptability of non‑heterosexual relationships. Before we address the same, it is no longer res integra that the duty of a constitutional Court is to uphold the rights enshrined in the Constitution and to not be swayed by majoritarian tendencies or popular perceptions. Supreme Court of India has always been guided by constitutional morality and not by social morality., A pluralistic social fabric has been an integral part of Indian culture and the cornerstone of our constitutional democracy. Non‑heterosexual unions are well‑known to ancient Indian civilization as attested by various texts, practices, and depictions of art. These markers of discourse reflect that such unions are an inevitable presence across human experience. Hindu deities were multi‑dimensional and multi‑faceted and could appear in different forms. One of the earliest illustrations is from the Rig Veda itself. Agni, one of the most important deities, has been repeatedly described as the child of two births (dvijanman), child of two mothers (dvimatri), and occasionally, child of three mothers (the three worlds)., In Somdatta's Kathasaritsagara, same‑sex love is justified in the context of rebirth. Somaprabha falls in love with Princess Kalingasena and claims that she loved her in her previous birth as well. Hindu mythology is replete with several such examples. The significant aspect is that same‑sex unions were recognised in antiquity, not simply as unions that facilitate sexual activity, but as relationships that foster love, emotional support, and mutual care., Even in the Sufi tradition, devotion is often constructed around the idea of love as expressed through music and poetry. In several instances, the human relationship with the divine was expressed by mystics through the metaphor of same‑sex love. Love across genders is also reflected in the Rekhti tradition of Lucknow. This tradition is centred around the practice of male poets writing in a female voice and is characterised by its homoeroticism. Significantly, the depictions of same‑sex relationships are charged with affects such as love, friendship, and companionship., Marriage as an institution developed historically and served various social functions. It was only later in its long history that it came to be legally recognised and codified. However, these laws regulated only one type of socio‑historical union, i.e., the heterosexual union., It would thus be misconceived to claim that non‑heterosexual unions are only a facet of the modern social milieu. The objective of penning down this section is to provide perspective on the existence of non‑heterosexual unions, despite continued efforts towards their erasure by the heteronormative majority., Non‑heterosexual unions are entitled to protection under our Constitutional schema. In Maqbool Fida Husain, I had observed: Our Constitution by way of Article 19(1) which provides for freedom of thought and expression underpins a free and harmonious society. It helps to cultivate the virtue of tolerance. It is said that the freedom of speech is the matrix, the indispensable condition of nearly every other form of freedom. It is the wellspring of civilization and without it liberty of thought would shrivel., The necessity of recognizing civil unions. The judgment of the Honorable Chief Justice notes that the right to form unions is a feature of Articles 19 and 21 of the Constitution. Therefore, the principle of equality enumerated under Articles 14 and 15 demands that this right be available to all, regardless of sexual orientation and gender. Having recognized this right, Supreme Court of India has taken on board the statement of the Learned Solicitor General to constitute a Committee to set out the scope of benefits available to such unions. I agree with the Honorable Chief Justice., The Petitioners' submissions demand that the Special Marriage Act, 1872 be tested on the touchstone of Part III of the Constitution, i.e., whether they are discriminatory on the basis of sex and thus violative of Articles 14 and 15 of the Constitution. It is now settled law that Article 14 contemplates a two‑pronged test: (i) whether the classification made by the Special Marriage Act is based on intelligible differentia; and (ii) whether the classification has a reasonable nexus to the objective sought to be achieved by the State. The first prong, i.e., intelligible differentia implies that the differentia should be clear and not vague. Section 4 of the Special Marriage Act is clear in so far as it contemplates a marriage between a male who has completed the age of twenty‑one years and a female at the age of eighteen years. In defining the degrees of prohibited relationships, Section 2(b) of the Special Marriage Act exclusively applies to a relationship between a man and a woman. Thus, by explicitly referring to marriage in heterosexual relationships, the Special Marriage Act by implication creates two distinct and intelligible classes i.e., heterosexual partners who are eligible to marry and non‑heterosexual partners who are ineligible., Under the second prong, the Court examines whether the classification is in pursuit of a State objective. The Special Marriage Act's Statement of Objects and Reasons assists us in determining the objective. It is reproduced hereunder: Statement of Objects and Reasons. This Bill revises and seeks to replace the Special Marriage Act of 1872 so as to provide a special form of marriage which can be taken advantage of by any person in India and by all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess. The parties may observe any ceremonies for the solemnisation of their marriage, but certain formalities are prescribed before the marriage can be registered by the Marriage Officers. For the benefit of Indian citizens abroad, the Bill provides for the appointment of Diplomatic and Consular Officers as Marriage Officers for solemnising and registering marriages between citizens of India in a foreign country. Provision is also sought to be made for permitting persons who are already married under other forms of marriage to register their marriages under this Act and thereby avail themselves of these provisions. The bill is drafted generally on the lines of the existing Special Marriage Act of 1872 and the notes on clauses attached hereto explain some of the changes made in the Bill in greater detail., From the above, we see that the Special Marriage Act postulates a special form of marriage available to any person in India irrespective of faith. Therefore, the Special Marriage Act provides a secular framework for solemnisation and registration of marriage. Here, I respectfully disagree with my brother Justice Ravindra Bhat, that the sole intention of the Special Marriage Act was to enable marriage of heterosexual couples exclusively. To my mind, the stated objective of the Special Marriage Act was not to regulate marriages on the basis of sexual orientation. This cannot be so as it would amount to conflating the differentia with the object of the statute. Although substantive provisions of the Special Marriage Act confer benefits only on heterosexual relationships, this does not automatically reflect the object of the statute. For as we are all aware, we often act in ways that do not necessarily correspond to our intent. Therefore, we cannot look at singular provisions to determine substantive intent of the statute. Doing so would be missing the wood for the trees., If the intent of the Special Marriage Act is to facilitate inter‑faith marriages, then there would be no rational nexus with the classification it makes, i.e., excluding non‑heterosexual relationships. In any event, regulating only heterosexual marriages would not be a legitimate State objective. It is settled law that the Court can also examine the normative legitimacy and importance of the State objective, more so in a case such as this where sex (and thereby sexual orientation) is an ex‑facie protected category under Article 15(1) of the Constitution. An objective to exclude non‑heterosexual relationships would be unconstitutional, especially after Supreme Court of India in Navtej has elaborately proscribed discrimination on the basis of sexual orientation. Therefore, the Special Marriage Act is violative of Article 14., However, I recognize that there are multifarious interpretive difficulties in reading down the Special Marriage Act to include marriages between non‑heterosexual relationships. These have been enumerated in significant detail in the opinions of both the Honorable Chief Justice and Honorable Justice Bhat. I also agree that the entitlements devolving from marriage are spread out across a proverbial spider's web of legislations and regulations. As rightly pointed out by the Learned Solicitor General, tinkering with the scope of marriage under the Special Marriage Act can have a cascading effect across these disparate laws., In fact, the presence of this web of statutes shows that discrimination under the Special Marriage Act is but one example of a larger, deeper form of social discrimination against non‑heterosexual people that is pervasive and structural in nature. Ordinarily, such an intensive form of discrimination should require keener and more intensive judicial scrutiny. However, due to limited institutional capacity, Supreme Court of India does not possess an adequate form of remedy to address such a violation. As pointed out in the judgment of the Honorable Chief Justice, substantially reading into the statute is beyond the powers of judicial review and would be under the legislative domain. It would also not be prudent to suspend or strike down the Special Marriage Act, given that it is a beneficial legislation and is regularly and routinely used by heterosexual partners desirous of getting married. For this reason, this particular methodology of recognizing the right of non‑heterosexual partners to enter into a civil union, as opposed to striking down provisions of the Special Marriage Act, ought to be considered as necessarily exceptional in nature. It should not restrict the Courts while assessing such deep‑seated forms of discrimination in the future., Non‑heterosexual unions and heterosexual unions/marriages ought to be considered as two sides of the same coin, both in terms of recognition and consequential benefits. The only deficiency at present is the absence of a suitable regulatory framework for such unions. Supreme Court of India in Navtej noted that: history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. I believe that this moment presents an opportunity of reckoning with this historical injustice and casts a collective duty upon all constitutional institutions to take affirmative steps to remedy the discrimination., Thus, the next step in due course, would be to create an edifice of governance that would give meaningful realization to the right to enter into a union, whether termed as marriage or a union. Charting a course: Interpreting statutes using Constitutional principles., As noted above, the benefits pertaining to marriage are spread out across several incidental legislations and regulations. These statutes presently do not explicitly extend to civil unions. However, now that we have recognized the right to enter into civil unions, such statutes must be read in a manner to give effect to this right, together with the principle of equality and non‑discrimination under Articles 14 and 15. In other words, statutory interpretation must be in consonance with constitutional principles that are enumerated by Supreme Court of India. Needless to say, this should not detract from the Committee's task of ironing out the nitty‑gritties of the entitlements of civil unions., This exercise is necessary to foster greater coherence within the legal system as a whole, both inter se statutes and between statutes and the Constitution. Reading statutes in this manner will facilitate inter‑connectedness by allowing constitutional values to link statutes within the larger legal system. Constitutional values emanate from a living document and thus are constantly evolving. Applying constitutional values to interpret statutes helps update statutes over time to reflect changes since the statutes' enactment. Ordinarily, constitutional principles come in contact with statutes when the validity of such statutes is being tested. However, constitutional values should play a more consistent role, which can be through the everyday task of statutory interpretation., This interpretive technique has gained currency across jurisdictions. In the famous L th case, the Federal Constitutional Court of Germany recognized that the constitutional right of freedom of expression as enumerated under the German Basic Law also radiates into the statutory law of defamation. The Court noted that: But far from being a value‑free system the Constitution erects an objective system of values in its section on basic rights, and thus expresses and reinforces the validity of the basic rights. This system of values, centring on the freedom of the human being to develop in society, must apply as a constitutional axiom throughout the whole legal system: it must direct and inform legislation, administration, and judicial decision., We may note that the Constitution of South Africa has an explicit provision which directs that the interpretation of statutory law shall be in due regard to the spirit, purport and objects of the chapter on fundamental rights.
id_851	14	It needs to be revisited and revitalized with the spirit of the constitutional values defined in Chapter 3 of the Constitution and with full regard to the purport and objects of that Chapter. Although no such provision exists in the Indian Constitution, the Supreme Court of India are no strangers to interpreting statutory laws through fundamental rights. In Central Inland Water Transport Corporation v. Brojo Nath Ganguly, the Supreme Court of India was concerned with the interpretation of public policy under Section 23 of the Indian Contract Act, 1872. In this context, the Supreme Court observed: It is thus clear that the principles governing public policy must be capable, on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority our courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution., This technique of reading in Constitutional values should be used harmoniously with other canons of statutory interpretation. In this context, legislations that confer benefits on the basis of marriage should be construed to include civil unions as well, where applicable., I am wholeheartedly in agreement with the opinion of the Honorable Chief Justice that there is a need for a separate anti‑discrimination law which inter alia prohibits discrimination on the basis of sexual orientation. Presently, there are several laws that have an anti‑discrimination aspect to them. However, they are fragmented and may fail to capture the multitudinous forms of discrimination. Another compelling reason for a law that places a horizontal duty of anti‑discrimination is provided by the spirit of Article 15, which prohibits discrimination by both the State and private actors. Presently, although the Supreme Court of India assumes its role as the sentinel on the qui vive, the only method to enforce this constitutional right under Article 15 would be through its writ jurisdiction. There are significant challenges for marginalized communities to access this remedy. Therefore, the proliferation of remedies through an anti‑discrimination statute can be a fitting solution. Such legislation would also be in furtherance of the positive duty of the State to secure social order and to promote justice and social welfare under Article 38 of the Constitution., My suggestions for an anti‑discrimination law are as follows. First, such a law should recognize discrimination in an intersectional manner. That is to say, in assessing any instance of discrimination, the Supreme Court of India cannot confine itself to a singular form of discrimination. Instead, discrimination must be looked at as a confluence of factors and individual instances of oppression that intersect and create a distinct form of disadvantage. Discrimination laws can only be effective if they address the types of inequality that have developed in the given society. This principle has already been recognized by the Supreme Court of India in Navtej Singh Johar v. Union of India. Second, the duties under an anti‑discrimination law can be proportionately distributed between different actors depending on factors such as the nature of functions discharged, their control over access to basic resources, and the impact on their negative liberty. Third, an anti‑discrimination statute must also enumerate methods to redress existing discrimination and bridge the advantage gap. This could be through policies that distribute benefits to disadvantaged groups., The principle of equality mandates that non‑heterosexual unions are not excluded from the mainstream socio‑political framework. However, the next step would be to examine the framework itself, which cannot be said to be neutral. On the contrary, it is inherently value‑laden. One particularly pernicious value is patriarchy, which manifests in various oppressive ways. Gendered stereotypes and sex‑based violence are lived realities of many. This is something both society and law recognize., I believe that the legal recognition of non‑heterosexual unions can challenge culturally ordained gender roles even in heterosexual relationships. For a long period of time, marriage has been viewed in gendered terms. That is to say, one’s status as husband or wife determines their duties and obligations towards each other, their family, and society. Marriage enforces and reinforces the linkage of gender with power by husband/wife categories, which are synonymous with social power imbalances between men and women. This is notwithstanding the fact that there has been progressive awareness of these issues. Non‑heterosexual unions can make an important contribution towards dismantling this imbalance while emphasizing alternative norms. As Eskridge puts it: In a man‑man marriage where tasks are divided up along traditional lines, a man will be doing the accustomed female role of keeping house. It is this symbolism that represents the deeper challenge to traditional gender roles. Once female‑female and male‑male couples can marry, the wife‑housekeeper/husband‑breadwinner model for the family would immediately become less normal, and perhaps even abnormal over time. The wife as someone who derives independent satisfaction from her job outside the home would immediately become a little bit more normal., In a non‑heterosexual union, duties and obligations are not primarily dictated by culturally ordained gender norms. In other words, both partners are not limited by extant gender norms to shape their relationship, including the division of labour. For instance, studies have found that partners in non‑heterosexual relationships share unpaid labour more equally than those in heterosexual relationships. This is not to suggest that other imbalances of power do not exist within non‑heterosexual unions. Nevertheless, non‑heterosexual unions are not limited by the legally and socially sanctioned gendered power dynamic that can be present in heterosexual unions., Legal recognition aids social acceptance, which in turn increases queer participation in public spaces. Through the medium of legal recognition, queer persons will have a greater opportunity to be seen and heard in ways not previously possible. Queer expression will help facilitate an expansive social dialogue, cutting across communities and generations. This dialogue will help us reimagine all our relationships in a manner that emphasizes values such as mutual respect, companionship, and empathy., Conclusion. Is this the end where we have arrived? The answer must be an emphatic no. Legal recognition of non‑heterosexual unions represents a step forward towards marriage equality. At the same time, marriage is not an end in itself. Our Constitution contemplates a holistic understanding of equality, which applies to all spheres of life. The practice of equality necessitates acceptance and protection of individual choices. The capacity of non‑heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples. Let us preserve this autonomy, so long as it does not infringe on the rights of others. After all, it is my life., Sanjay Kishan Kaul, New Delhi, October 17, 2023., At the centre of the dispute lies the definition and the content of two willing individuals’ right to marry. On the one hand the petitioners assert that marriage is an evolving social institution, capable of embracing the union of two willing non‑heterosexual, queer or LGBTQ+ individuals and necessitating state recognition; on the other hand, the respondents assert that the institution of marriage rests on certain constant and unchanging premises, the most prominent of which is that it is a heterosexual union. The task of the Supreme Court of India lies in determining how the Constitution speaks on the issue., Having had the benefit of reading the draft and revised opinions circulated by the learned Chief Justice, Justice D.Y. Chandrachud, we find it necessary to pen our reasoning and conclusions in this separate judgment. The learned Chief Justice has recorded in detail the submissions made by counsel, and claims made; they consequently do not require reiteration. Similarly, the sections addressing the Union Government’s preliminary objections, i.e., the discussion on the court’s authority to hear the case (Section D(i)), and that queerness is a natural phenomenon that is neither urban nor elite (Section D(ii)), are parts we have no hesitation in agreeing with. However, we do not agree with the conclusions arrived at by the learned Chief Justice and the directions issued. We do agree with certain premises and conclusions that he has recorded: (a) that there exists no fundamental right to marry under the Constitution; (b) that the Special Marriage Act, 1956 is neither unconstitutional nor can it be interpreted in such a manner so as to enable marriage between queer persons; and (c) that transgender persons in heterosexual relationships have the right to solemnise marriage under existing legal frameworks. We have briefly highlighted our main points of agreement, and reasoned in more detail those aspects with which, respectfully, we cannot persuade ourselves to concur. We had the benefit of perusing the concurring opinion of Justice Narasimha. We endorse those observations and conclusions fully; the reasoning and conclusions shall be read as supplementing that of the present judgment., The common ground on which the batch of petitions claim relief is that LGBTQ+ persons are entitled to solemnise and register their marriage; in other words, they claim a right to legal recognition of their unions within the marriage fold. The petitioners rely on fundamental rights to equality and non‑discrimination, dignity and autonomy, and expression and association, and specifically focus on Section 4(c) of the Special Marriage Act as well as the First and Second Schedules thereof, to state that particular references to husband or wife in its provisions are to be read down, and a neutral expression needs to be substituted instead. A few petitioners also claim that Section 4(c) and Section 17 of the Foreign Marriage Act, 1969 need to be similarly read down. Some of the prayers also relate to the right of such couples to adopt under existing laws in India. Some of the prayers specifically challenged Chapter II of the Special Marriage Act relating to notice and objections procedure prescribed. However, during the course of hearing, the Supreme Court of India indicated that this was not a question of law that necessitated a five‑judge bench ruling, and hence this issue was to be left for consideration by a numerically smaller bench., Nature of marriage as a social institution. Marriage, as a social institution, predates all rights, forms of political thought and laws. The institution of family has no known origin in the sense that there has been no stage of human existence in which family was absent leading to another time in which it emerged. Marriage, however, has been regarded for the longest time as a relationship of man to woman which is recognized by custom, and thereafter law; it involves certain rights and duties in the case of both persons entering the union. It is considered to be one of the most important relationships, as it affects not only the individuals’ happiness and well‑being but also that of others. It has long been regarded as the reason for society’s continuance on the one hand, and its building block on the other. What is marriage and the conceptualisation of its role in society has undergone change over time; it has engaged the attention of philosophers, from Plato to Hegel, Kant and John Stuart Mill and of religious leaders, like St. Augustine., Different traditions view marriage as sacraments and indissoluble unions (Hindus and Catholic Christians); Islam regards marriage as both contractual and sacred; Parsis regard it as both a sacrament and contractual. Most, if not all, place importance on procreation, creation of family, co‑habitation, shared values as important markers; at the same time, these traditions also recognise, in varying degrees, importance of companionship, spiritual union, friendship and togetherness of the spouses., The respondents are right, in one sense, in underlining that all conceptions of what constitutes marriage, all traditions and societies, have historically understood marriage as between heterosexual couples. The contexts of culture, social understanding of what constitutes marriage, in every social order are undoubtedly very important. At the same time, for the purpose of determining the claims in these petitions, it is also necessary to mark the progression of what were deemed constitutive and essential constituents, and essential boundaries within which marriages were accepted., Marriages have not always been dictated by voluntary choice. In medieval European societies, when a girl was physically able to consummate marriage, she was eligible for matrimony. Among the nobility and landed gentry, the principal consideration for marriage was exchange of property in the form of dowry. Thus, it was not uncommon that among the upper classes marriages were loveless and unhappy. The sole reason for marriage was touted to be procreation, which the church dictated; thus, consummation of marriage and physical sexual relations were considered the most important features of every marriage, since this meant the establishment of family. Among Hindus, barriers such as ban on sagotra and sapinda marriages, and impermissibility of non‑endogamous marriages, were widely prevalent for a long time. Although among Muslims marriage is both sacramental and contractual, and requires exercise of free will, it is premised on the agreement of mehar, or the amount the groom would offer, for the bride. Muslims are permitted to marry others of the same faith, or from the People of the Book (known as Kitabiyas), such as Jews, Sabians and Christians. No marriage with polytheists is permitted. Similarly, widow remarriage amongst Hindus was prohibited. Likewise, injunctions against inter‑caste marriages were widely prevalent. Child marriages were widely prevalent too. Inter‑religious marriages were impossible. In the United States, various laws had, in the past, prohibited interracial marriages. Arranged marriages were very common throughout the world until the 18th century., It is therefore evident that for long periods, in many societies, the choice of a matrimonial partner was not free; it was bounded by social constraints. Much of the time, marriage was seen as an institution meant for procreation and sexual union of the spouses. In most societies marriage had cast roles for the spouses; they were fairly inflexible, with men controlling most decisions, and women placed in subordinate positions, with little or no voice, and, for the longest time, no legal authority, autonomy or agency. For millennia, custom, tradition and law subordinated wives to husbands. Notions of equality of partners or their roles were uncommon, if not totally unheard of. All these underwent radical change., The greater part of history shows that choice of a spouse, based on love or choice, played almost no role at all. The Enlightenment and Western thinkers of the eighteenth century established that pursuit of happiness was important to life. They advocated marrying for love, instead of status, or wealth or other considerations. The Industrial Revolution gave impetus to this thought. Marriages were solemnised and celebrated with increasing frequency in Western cultures, based on choice, voluntary consent, and without parental approval. This movement increased tremendously as women’s‑rights movement expanded and gained impetus in the nineteenth and twentieth centuries; wives started being regarded as their husbands’ equals, not their property. Couples were also enabled to choose whether to have, and if so, how many children to have. If they were unhappy with each other, they could divorce – a choice exercised by a large number of couples. Marriage became primarily a personal contract between two equals seeking love, stability, and happiness. Therefore, although social mores prevailed in relation to marriage, traditions and legal regimes were not static; the changes that society underwent or the forces that brought change also carried winds that breathed new content, new contexts and new values into the institution of marriage., Law’s progress stresses individuals’ rights for equality. The form of marriage, or the legally prescribed procedures assume a secondary role – they are matters of belief and practice. They cannot be regarded as the essential content of marriage. Tying thali is necessary in South India among many Hindu communities; and in some parts the exchange of rings, garlands and some rituals is necessary in North India. Many Hindu marriage customs and traditions insist on the saptapadi; amongst Muslims, the nikah ceremony, witnessed by invitees, and other customary rituals and practices, is generally followed; Christian customs emphasize solemnisation by the couples taking marriage vows. The rich diversity of this country and its pluralism is reflected in customary practices surrounding marriage solemnisation, all if not most of which involve the couple, the members of their family, and the larger community. Ritualistic celebration of marriage is considered by some as essential, while many in other sections may deem that the factum of marriage sufficient. For relationships that did not have customary practice dating back in history, the State enacted law much like the petitioners seek., Therefore, legislations governing inter‑caste and inter‑faith marriages, and adoption, are two important social relations relating to the family, through which secularism finds its base for an egalitarian social order under the Constitution. The enactment of laws to facilitate this aspect is testimony of the right of individuals to personal choice and autonomy. For instance, enactment of the Hindu Marriage (Removal of Disabilities) Act, 1946 enabled persons from the same gotra or pravara to marry. Likewise, the bar to Hindu widows’ remarriage was removed by enacting the Hindu Widows Remarriage Act, 1856. Inter‑caste and inter‑faith marriages became a possibility under the Special Marriage Act after 1954., The legal dimension of marriage, in the United States the jurisprudence of which the petitioners relied on, is markedly different from the nature of marriage in India, and its evolution. This contextual difference is of great relevance when considering a constitutional question of this kind. Marriage in countries like the United States was earlier a sacramental institution that flowed from the Church and its divine authority. However, in modern times, it flows from the State, which created a licence regime for marriage. The result is that marriages may be performed and celebrated with religious traditions or rituals that have great meaning personally for the individuals but the legality of the marriage is solely dependent on a validly obtained licence. This regime has since been extended to queer couples as well in the United States. The law relating to marriage in India, however, has had a different trajectory. A deeply religious affair, it gained its legitimacy and legal status from personal law and customs that govern this aspect of life for members belonging to all faiths. The matrimonial laws that have been enacted were a result of the codification project in the 19th and 20th centuries, which expressly recognise these social practices, while continuing to offer space to unwritten customary practices as well (barring aspects like marriageable age, etc., which are regulated by law). As mentioned, the Special Marriage Act is the only avenue for a form of secular/non‑religious civil marriage which too still ties into personal law for succession and other aspects. The Indian context is elaborated in the following Part II., State interest in regulating social practices through legislation. Before undertaking a study on whether there is a fundamental right to marry, and an obligation on the State to create such an avenue, it is necessary to traverse the brief history of state intervention in social practices including in relation to marriage. These laws were enacted in relation to different subject areas. However, a pattern certainly emerges on the limited scope of interference., The social practices resulting in stigma and exclusion of large sections of society impelled the Constitution framers to frame specific provisions like Article 15(1) and (2), Articles 17, 23 and 24, which was left to Parliament to flesh out through specific legislation. This resulted in statutes such as the Protection of Civil Rights Act, 1955; Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989; Bonded Labour System (Abolition) Act, 1976; Immoral Traffic (Prevention) Act, 1956; the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013; and their respective amendments. The laws removing barriers which prevented large sections of society from entering into temples and places of public worship is another example., In a somewhat similar vein, legislative activity aimed at bringing about gender parity through prohibiting prevailing practices that further inequality and sometimes even criminalising certain customs resulted in legislations such as the Equal Remuneration Act, 1976 (which guaranteed equal pay for equal work regardless of the sex of the worker), the Dowry Prohibition Act, 1961 as amended subsequently, introduction of provisions in criminal law which gave teeth to such provisions (Sections 498A and 304B of the Indian Penal Code, and Sections 113A and 113B of the Evidence Act, 1872 which enabled courts to raise presumptions in the trial of such offences)., Other practices aimed at realisation of social goals and furthering the mandate of Article 15(3) in respect of children such as the right to free universal education under Article 21A of the Constitution, and the Right to Free Education Act, 2009; the Child Labour (Prohibition and Regulation) Act, 1986; Protection of Children from Sexual Offences Act, 2012; the Juvenile Justice Act, 2016, etc. In all these, Parliament or the concerned legislatures donned the role of reformers, and furthered the express provisions of the Constitution, enjoining State action, in furtherance of Articles 15(2), 15(3), 17, 23 and 24., Marriage has historically been a union solemnised as per customs, or personal law tracing its origin to religious texts. Legislative activity in the personal law field so far has been largely, though not wholly, to codify prevailing customs and traditions, and regulate them only where needed. The instances that stand out are the enactment of the Indian Succession Act, 1925; Hindu Women’s Right to Property Act, 1937; Hindu Marriage Act, 1955; the Hindu Adoptions and Maintenance Act, 1956; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; the Indian Divorce Act, 1869 (as amended in 2001); the Muslim Personal Law (Shariat) Application Act, 1937; and the Anand Marriage Act, 1909 (as amended). These laws mostly codified traditions and customs which existed, and to an extent, regulated marriages and succession laws. These laws also sought to introduce reforms: for the first time, monogamy was enacted as a norm applicable to all Hindus; likewise, the option of divorce was enacted, together with grounds on which other remedies (like judicial separation) could be sought. Further, the minimum age of marriage was also enacted, through provisions in various personal laws, and enforced through the Prohibition of Child Marriage Act, 2006 (which repealed the pre‑existing Child Marriage Restraint Act, 1929). This law applies to all sections of society., Existing conditions of women, especially in respect of issues such as maintenance, were considered inadequate even before the Constitution was brought into force. The earliest reform introduced was through the Bengal Sati Regulation, 1829 (by the colonial rulers). This was later followed by the Hindu Widow Remarriage Act, 1856 which enabled remarriage of Hindu widows. These enactments pre‑date the Constitution, and can be seen as reforms meant to outlaw abhorrent practices viewed as evil, and needing prohibition, to protect women’s lives; in the case of widow remarriage, it was to enable child and young widows an opportunity to lead lives. Given the diversity of Hindu traditions and the differing approaches in various schools of law, which prevailed in different parts of the country, it was considered necessary to enact the Hindu Women’s Right to Property Act, 1937 (later with the enactment of the Hindu Succession Act, 1956, some rights were expanded through its provisions). For a long time, daughters were treated unequally in regard to succession to the estate of their deceased father; this changed with the enactment of the Hindu Succession Amendment Act, 2005, and the substitution of Section 6, whereby daughters (who were hitherto excluded from succession to any coparcenary properties) became entitled to claim the share that a son was entitled to, in the case of death of a coparcener in relation to ancestral property., The right to maintenance (pendente lite, as well as alimony) was given statutory force under the Hindu Marriage Act, 1955 as well as the Hindu Maintenance and Guardianship Act, 1956, for Hindus. All married women and children of their marriage, regardless of their religious or social backgrounds, were enabled to claim maintenance, by virtue of Section 488 of the Criminal Procedure Code, 1898. This provision was re‑enacted and progressively amended through Section 125 of the Code of Criminal Procedure, 1973. The Supreme Court of India, in its five‑judge decision in Mohd. Ahmad Khan v. Shah Bano Begum, upheld the right of Muslim women, including divorced Muslim women, to claim maintenance. However, soon after that decision, Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the ruling in Shah Bano and restricted the right of Muslim divorcées to alimony from their former husbands for only 90 days after the divorce (the period of iddat in Islamic law). The restriction imposed was however interpreted narrowly, and this court, through a Constitution Bench, in Danial Latifi v. Union of India held that nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time., The Age of Consent Act in 1891 raised the age of marriage from 10 to 12 years.
id_851	15	The Child Marriage Restraint Act of 1929 addressed this by prescribing the minimum age of marriage for females at fourteen years and for males at eighteen years. The Child Marriage Restraint Act of 1929 (also known as the Sarda Act) was enacted as a result of prolonged pressure from social reform organisations and concerned people who fought against the negative repercussions of child marriage. The age limitations were later raised to eighteen and twenty‑one years old, under the Prohibition of Child Marriage Act, 2006. The practice of marrying off children at a young age, which prevailed before these enactments, was therefore interdicted by legislation., Even while exercising personal choice in marriage, those choices are regulated by law, including the prohibition of marriage of persons related by blood (consanguineous marriages). Other restrictions include the requirement to be of sound mind to give valid consent and not to be unfit for marriage or procreation. If a spouse is incurably of unsound mind, the other spouse can secure divorce. Bigamy among Hindus was abolished by the enactment of the Hindu Marriage Act, 1955. Reform has been the underlying theme, impelling the state to intervene. The first President, Rajendra Prasad, expressed strong sentiments against adopting foreign concepts that were opposed to Hindu society, while women in public life supported the need to empower women., Two kinds of legislation have regulated marriage. The first, such as the Special Marriage Act, Hindu Marriage Act, Hindu Disabilities Removal Act, and Hindu Widows Remarriage Act, removed barriers and enabled the exercise of meaningful choice, specifically for women. The second kind of legislation enacted restrictive regulations to further an orderly society and protect women: prohibition of bigamy; definition of minimum age for marriage; child marriage restrictions; and prohibition of marriages within prohibited degrees of relationship. Prohibited degrees are defined under Section 3(g) of the Hindu Marriage Act, 1955, Section 3(1)(a) of the Parsi Marriage and Divorce Act, 1936, Section 19 of the Indian Divorce Act, 1869, Section 88 of the Indian Christian Marriages Act, 1872, and similar provisions for Muslims under the concept of qurabat (blood relationships) and mushaarat (affinity relationships)., In the field of succession and inheritance, the Hindu Succession Act, 1956 only enacts certain broad features, leaving untouched the rights of various communities and sections of Hindus to work out their rights in succession to joint family, Hindu Undivided Family and coparcenary property. This unwritten, uncodified law, often based on customs and local traditions, is enforced not only in regard to inheritance but also in the field of taxation. The law also accommodates customs, for example Section 2(d) which states that persons other than Hindus—including Jews, Muslims and Christians who may be following Hindu customs—would continue to do so; Section 7 which spells out the ceremonies of Hindu marriage as based on customary rites; and Section 29(2) which accords primacy to customary divorce amongst Hindus. Neither the Hindu Marriage Act nor the Hindu Succession Act apply to members of Scheduled Tribe communities; the Hindu Adoptions and Maintenance Act applies to them in a nuanced manner., In the three‑judge bench decision of the Supreme Court of India in Revanasiddappa v. Mallikarjuna, the Court clarified that with the enactment of Section 16 of the Hindu Marriage Act, the legitimacy conferred upon children born of void or voidable marriages is limited to a share in their parents' property; they cannot claim a right to partition during the lifetime of their parents. The Court also held that such children cannot claim any rights other than those expressly provided for, thereby upholding uncodified law and custom., Legislative action initiated at different points in time has been reformist or aimed at effecting certain fundamental rights. Practices and customs that resulted in the degradation or diminution of individuals, and were inconsistent with democratic society, were sought to be eliminated by these laws. When codification attempts resulted in residual discrimination, the courts stepped in to eliminate and enforce fundamental rights, as seen in Independent Thought v. Union of India and Shayara Bano v. Union of India., The Special Marriage Act, 1954, the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act), and Section 41 of the Juvenile Justice (Care and Protection of Children) Act enable adoption amongst members of all faiths. The adoption provision covers (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs, and (b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh and who is brought up as a member of the tribe, community, group or family to which such parent belongs. These provisions were preceded by guidelines for inter‑country adoptions initially pioneered in the judgment of the Supreme Court of India in Laxmi Kant Pandey v. Union of India. Executive instructions filled the vacuum to some extent, but limitations preventing adoption of children from different faiths persisted until they were overridden by the Juvenile Justice Act, 2016., The role of the legislature has been to act as codifier, often not enacting or codifying existing customs, and wherever necessary, to intervene in furtherance of Article 14 and Article 15(3) of the Constitution. Parliament has facilitated the creation of social status through the Special Marriage Act and enabled the institution of adoption, which was previously available only amongst certain communities. State interest has driven regulation of the minimum age for marriage of girls, the definition of prohibited degrees of relationship, and marital offences such as desertion or cruelty, which are grounds for seeking matrimonial remedies. Without such legislation, children of any age would continue to be married off, endangering the health and life of the girl child, and prohibited degrees of relationship would not serve public health interests., III. Tracing the rights enjoyed by queer persons\nA. The trinity – autonomous choice, dignity and non‑discrimination\n(i) Importance of personal choice under the Constitution\nThe journey of constitutional progression and the understanding of personal liberties, especially the right to life (Article 21) and equality (Article 14), has revealed multiple layers of prejudice, insensitivity and indifference in the social order. A woman's choice and bodily autonomy in regard to reproductive rights has been acknowledged as a fundamental right integral to the right to life in Suchita Srivastava & Ors. v. Chandigarh Administration, reiterated in Devika Biswas v. Union of India, X v. Principal Secretary, Health and Family Welfare Department, and Independent Thought. A person's autonomy to choose a spouse or life partner has been declared as integral to the fundamental right to live; in Asha Ranjan v. State of Bihar, this choice was held to be a legitimate constitutional right founded on individual choice, and the Court decried the concept of \class honour\ or \group thinking\ as barriers to free choice. In In re (Gang‑Rape Ordered by Village Kangaroo Court in West Bengal), the Court said the State is duty‑bound to protect the fundamental right of freedom of choice in marriage. Shafin Jahan v. Asokan K.M. & Ors. brought home that expressing choice is in accord with the law and is an acceptance of individual identity. The nine‑judge decision in K.S. Puttaswamy v. Union of India, through Justice Chandrachud, explored the nuances of the right to privacy and observed that personal choices governing a way of life are intrinsic to privacy., (ii) Dignity as a dimension of equality and all our liberties\nThe promise of the Preamble to the Constitution is of fraternity assuring power, conflicts and oppression, denial of participation. Dignity is understood to mean the intrinsic worth of a person which entitles one to respect. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi, the Court said that the right to life includes the right to live with human dignity. Prem Shankar Shukla v. Delhi Administration voiced the same idea, that the Preamble sets a humane tone highlighting justice, equality and the dignity of the individual. The Court held that Article 21 is the sanctuary of human values, prescribes fair procedure and forbids barbarities. In Jeeja Ghosh v. Union of India, the Court spoke about human dignity as a core value and that the right to life includes the right to live with dignity. The Court quoted Aharon Barak that human dignity has a central normative role and unites human rights. In Kesavananda Bharati v. State of Kerala, the Court noted that basic dignity does not depend upon codification of fundamental rights. The Court in National Legal Services Authority v. Union of India (NALSA) underlined that dignity forms the basis of enjoyment of fundamental freedoms., III. Tracing the rights enjoyed by queer persons\n(iii) Equality, non‑discrimination and non‑exclusion\nThe equality code – Articles 14, 15, 16, 17, 23 and 24 – is not a wooden equality before law but contains specific injunctions prohibiting the State from discriminating on grounds such as caste, race, sex, place of birth, religion, or descent. Article 17 enjoins the State to forbear caste discrimination. The protected attribute of sex has been held to include sexual orientation and gender expression in NALSA and Navtej Johar v. Union of India. The rationale for proscribing grounds under Article 15 or 16 is to prevent unreasonable classification; the provisions also aim to ensure access to public resources for historically deprived sections. The Court has emphasized that non‑discrimination is essential for enjoyment of all rights and freedoms., The Court, in NALSA, took note of the Yogyakarta Principles which state that everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. The declaration of law in Navtej Johar provided impetus for LGBTQ+ persons, recognising that consensual queer relationships are not criminalised and that they have the right to live their lives and choose sexual partners without being treated as sub‑human., Sexual relations between persons of the same sex were outlawed by Section 377 of the Indian Penal Code, which characterised such acts as \unnatural sex\ and prescribed punishment. This provision was read down by a Division Bench of the Delhi High Court in Naz Foundation v. State (NCT of Delhi), which de‑criminalised consensual same‑sex relations. However, the decision was overturned by the Supreme Court of India in Suresh Kumar Kushal v. Naz Foundation, re‑criminalising such conduct until the five‑judge bench decision in Navtej Johar v. Union of India, which finally de‑criminalised consensual same‑sex intimacy., NALSA was a significant ruling regarding the rights of transgender persons. The Court held that discrimination on the ground of sexual orientation or gender identity impairs equality before law and violates Article 14. For the first time, the Court recognised that transgender persons have the same rights as other citizens, including the right to self‑determination of gender, access to education, public spaces, employment and other facilities, and protection under Articles 15 and 16. This declaration paved the way for the Transgender Persons (Protection of Rights) Act, 2019, which seeks to entrench the principle of non‑discrimination and grant statutory rights to transgender persons., The Court's intervention in cases such as Shakti Vahini v. Union of India, Lata Singh v. State of Uttar Pradesh, Shafin Jahan, Laxmibai Chandragiri v. State of Karnataka, Joseph Shine v. Union of India and K.S. Puttaswamy has been to protect citizens against threats of violence and to enable the exercise of individual choice. These decisions were based on the State's duty to protect citizens and to allow the exercise of personal choice in the face of external threats. Other decisions, such as Joseph Shine v. Union of India, Navtej Johar and Independent Thought, struck down or read down provisions that criminalised or limited fundamental rights, invoking Articles 14, 15(3) and 21. In K.S. Puttaswamy, the Court articulated the broadest right to privacy, which embraces the right to choose a life partner and to lead one's life free from external barriers., C. Is there a fundamental right to marry?
id_851	16	Supreme Court of India has recognized that marriage is a social institution. As elaborated in Part I, marriage existed and exists historically and chronologically in all of the senses because people married before the rise of the state as a concept. Therefore, marriage as an institution is prior to the state, i.e., it precedes it. The status is still not one that is conferred by the state (unlike the license regime in the United States). This implies that the marriage structure exists regardless of the state, which the latter can utilise or accommodate, but cannot abolish as a concept. Under this view terms of marriage are set, to a large extent, independently of the state. Its source is external to the state. That source defines the boundaries of marriage. This implies that state power to regulate marriage does not sit easy with the idea of marriage as a fundamental right., In attempting to analyse the claim to a fundamental right to marry, there are primarily two competing claims about the nature of marriage: one being that the state should exercise more control over marriage to support and protect traditional purposes and perceptions, and the other, that each individual should have the right to define marriage for themselves and state involvement in marriage should be minimal. Sivasankaran v. Santhimeenal [2021] 6 SCC 169: The norms of a marriage and the varying degrees of legitimacy it may acquire are dictated by factors such as marriage and divorce laws, prevailing social norms, and religious dictates. Functionally, marriages are seen as a site for the propagation of social and cultural capital as they help in identifying kinship ties, regulating sexual behaviour, and consolidating property and social prestige. Likewise, in Indra Sarma v. V.K.V. Sarma [(2013) 14 SCC 1019] Supreme Court of India said that the institutions of marriage and the family are important social institutions. The same decision also recognized the centrality of tradition and custom, while emphasizing that marriages in India take place either following the personal law of the religion to which a party belongs or following the provisions of the Special Marriage Act., If indeed there is a right to marry unless it is elevated to a right akin to Articles 17, 23, and 24, which apply to both state and non‑state agencies and actors, it cannot be operationalized. These provisions most emphatically create positive obligations; likewise Articles 15(3), 15(4) and 15(6), as well as Articles 16(4) and 16(6) highlight state interest in creating conditions to further the goal of non‑discrimination. Yet, previous decisions of Supreme Court of India have carefully held such provisions to enable the state, and in a sense oblige it to take measures, but ruled out court‑mandated policies and laws. In our considered opinion, this is not however a case where the court can make a departure from such rule and require the state to create social or legal status., What is being asked for by the petitioners is state intervention in enabling marriage between queer or non‑heterosexual couples. Civil marriage or recognition of any such relationship, with such status, cannot exist in the absence of statute. The demand, hence, is that of a right of access to a publicly created and administered institution. There is a paradox that the creation of the institution depends on state action, which is sought to be compelled through the agency of Supreme Court of India., Most of the precedents cited contain discussions on how the institution of marriage involves issues of basic importance. Many decisions, including Obergefell v. Hodges, recall tradition to underline that marriage is of utmost significance and that it underlines the importance of commitment of two individuals towards each other and that it is a foundational relationship of society. Traditions of marriage per se may not support the basis of recognition of marital relationship between non‑heterosexual couples. Many decisions by United States courts have underlined the rationale for declaring the right to marry a fundamental right as being essential to the orderly pursuit of happiness as it appears in their Declaration of Independence by free persons. This strand of reasoning is apparent from Loving v. Virginia to Obergefell., This respect is not sound at least as applied to state licensing of marriage (as in the United States), which is what civil marriage is. The fundamental importance of marriage remains that it is based on personal preference and confers social status. Importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support. Some may consider education fundamentally important, others may consider access to the internet a fundamental right, and yet others may wish that access to essential medication is a fundamental right. All these cannot be enforceable rights which the courts can compel the state or governance institutions to provide. These cannot result in demand for creation of a social institution, and in turn creation of status, through a statute. This result – i.e., recognition – can be achieved only by enacted law., All decisions relied on by the petitioners – K.S. Puttaswamy, Navtej Johar, Shakti Vahini and Deepika Singh v. Central Administrative Tribunal – contain broad observations with respect to individuals’ choice of their partner as also a reference to non‑conventional relationships. Some broad observations are undoubtedly to be found in these judgments but they cannot be referenced to hold that a right to marry automatically flows in the manner from the provisions of Part III which the petitioner asserts. There cannot, for the above reasons, be a per se assertion that there exists an unqualified right to marry which requires treatment as a fundamental freedom; we agree on this conclusion arrived at by the learned Chief Justice and his analysis of Shakti Vahini, Shafin Jahan, Navtej Johar, K.S. Puttaswamy and NALSA that the constitution does not expressly recognize a right to marry., The conclusion arrived at by the learned Chief Justice is that while there is no express fundamental right to marry, there is a right or freedom to enter into a union, as spelt out in Navtej Johar, K.S. Puttaswamy, NALSA, Shakti Vahini, Shafin Jahan, etc., and that having regard to our constitutional values, which entail respect to the choice of a person whether or when to enter into marriage and the right to choose a marital partner. The learned Chief Justice also traces this right to enter into an abiding co‑habitational relationship to the provisions of Article 19(1)(a), (c), and (e), Article 21, and Article 25., While we agree that there is a right – which we will characterise as a right to relationship to avoid confusion – we squarely recognise it to fall within Article 21, as already recognised in the aforesaid cases. The right to relationship includes the right to choose a partner, cohabit and enjoy physical intimacy with them, to live the way they wish to, and other rights that flow from the right to privacy, autonomy and dignity. They are, like all citizens, entitled to live freely and express this choice, undisturbed in society. Whenever their right to enjoyment of such relationship is under threat of violence, the state is bound to extend necessary protection. This is a natural consequence of Supreme Court of India’s judgments in Navtej Johar, K.S. Puttaswamy, Shafin Jahan and Shakti Vahini., The learned Chief Justice, in a detailed discussion of the goal of self‑development, rights under Article 19 (including the right to freedom of speech and expression, and to form intimate associations, to settle in any part of India), Article 21 and Article 25, arrives at the conclusion that the right to union (or right to enter into an abiding co‑habitational relationship) can be traced to these express provisions, which in turn enrich this right. Thereafter, having traced this right to union, it is propounded that the positive postulate of fundamental rights necessitates a positive obligation on the State to accord recognition to such relationships/unions. In our considered opinion, this is not necessary., If it is agreed that marriage is a social institution with which the State is unconcerned except the limited state interest in regulating some aspects of it, does it follow that any section of society (leaving aside the issue of rights of non‑heterosexual couples) which wishes for creation of a like social institution, or even an entry into a zone which is not popular or otherwise does not fall within the institution of marriage, can seek relief of its creation by court intervention?, The conception of fundamental rights in terms of their negative and positive content is a formulation that requires no citation. However, the extent to which this positive obligation may reach is where our reasoning arrives at the metaphorical fork in the road. Every fundamental right is not enjoyed by an individual to the same degree of absoluteness. For instance, Article 19 has a clear stipulation of reasonable restrictions for each freedom; Article 15 and 16 have a clear negative injunction on the State against discrimination, within which substantive equality is baked in and requiring the State to step in or facilitate; Article 25 is subject to other fundamental rights and freedoms under Part III, etc. There are restrictions to the content of these rights. A discussion of Article 21 elucidates this point. However, even while tracing these numerous unenumerated rights – the right to a clean environment, right to shelter, etc. – the courts have been necessarily circumspect in how these can be enforced., Often, these rights have come to be enumerated in response to State action that threatened the freedom or right directly or indirectly, thus compelling the litigant to invoke the jurisdiction of Supreme Court of India to remind the State of the negative injunction that impedes its interference and must guide its actions. Does this, however, mean that a litigant could knock on the doors of this Court seeking to enforce each of these unenumerated rights? A simple example would offer some clarity: consider a poet who wishes to share their work with the public at large. Provided there is no direct restriction or a chilling effect, the State’s role in enabling or facilitating this freedom enjoyed by the poet is limited. Supreme Court of India cannot direct that the State must create a platform for this purpose; this would be a stretch in the absence of any overt or inert threat., In the draft circulated by the Chief Justice, the reasoning that there is no fundamental right to marry and thereafter, nevertheless, to proceed to delineate the facets or features which unions other than marriage are deprived of, merits a closer look. The summation of various rights which such a couple is said to be deprived of is used to delineate the contours of the right to enter into a union and justify a positive obligation. There cannot be any doubt that individuals have the choice of their life partners and the right to live the lives they wish to, undisturbed. This is the essence of what the jurisprudence of Supreme Court of India has been so far – an explanation of the right to life and the other rights enumerated or discovered by interpretative process: privacy, choice, dignity etc., Repeatedly, decisions of Supreme Court of India have emphasized the non‑discriminatory and positive content of certain fundamental rights (Articles 14, 15, 16, 17, 23 and 24). In fact, the Court has underlined the obligations of the State to create conditions conducive to the exercise of the right to equality (i.e., substantive equality) and to realise fraternity. Refer to decisions in State of Kerala v. N.M. Thomas and Indra Sawhney v. Union of India which expanded the understanding of substantive equality, though without making enabling provisions enforceable by court. This Court has also in some decisions accepted the argument that given the nature of fundamental rights and their evolving content, in many circumstances it might be necessary for the State to intervene and protect the fundamental right concerned, thus creating an atmosphere conducive for the enjoyment of such right. Lata Singh dealt with honour killings of couples involved in inter‑caste, inter‑religious marriages; in Arumugam Servai v. State of Tamil Nadu, where the issue was virulent caste slurs and violence, the Court required administrative and police officials to take strong measures to prevent such atrocious acts. In Shakti Vahini, which dealt with threats by khap panchayats, this Court held that the State is duty‑bound to protect the fundamental rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. The Court issued directions requiring the State to take punitive and remedial measures, and that the State has a positive obligation to protect the life and liberty of persons., In several decisions it has been recognised that the reason for entrenching Part III rights – for instance, in M. Nagaraj – was to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Fundamental right is a limitation on the power of the State. R.C. Cooper v. Union of India is salient for the observations it made about the common thread that runs through Part III rights, which again sets out distinct enforceable rights: it is necessary to bear in mind the enunciation of the guarantee of fundamental rights which has taken different forms. In some cases it is an express declaration of a guaranteed right: Articles 29(1), 30(1), 26, 25 and 32; in others to ensure protection of individual rights they take specific forms of restrictions on State action legislative or executive Articles 14, 15, 16, 20, 21, 22(1), 27 and 28; in some others, it takes the form of a positive declaration and simultaneously enunciates the restriction thereon: Articles 19(1) and 19(2) to (6); in some cases, it arises as an implication from the delimitation of the authority of the State, e.g., Articles 31(1) and 31(2); in still others, it takes the form of a general prohibition against the State as well as others: Articles 17, 23 and 24., The right to freedom of speech is distinct because it is preceded by the words freedom of speech and expression whereas the others are rights. While this judgment does not call for elaboration on this distinction, the common element in respect of all the rights spelt out in Article 19 is the assertion of the right, which is a curb or restraint on State action, whose limits can only be through laws made by the State to promote some State concern such as sovereignty and integrity of the State, etc., reasonably restricting speech in the interests of, inter alia, public order, decency or morality. The same pattern is followed in relation to freedom to associate by Article 19(4). In relation to the right under Article 19(1)(g) a broader State interest, inter alia, in the interests of the general public, is considered. These expressions are common grounds on which reasonable restrictions can be enacted validly by law. Kharak Singh v. State of Uttar Pradesh, Bijoe Emmanuel v. State of Kerala and Union of India v. Naveen Jindal & Ors. are authorities for the proposition that regulating the exercise of rights guaranteed under Article 19(1)(a) to (e) and (g) through reasonable restrictions can be only through a law., The judgment of the learned Chief Justice propounded a theory of a unified thread of rights, entitlements flowing from it, and how lack of recognition results in deprivation of specified rights under Articles 19 and 25 (in addition to Article 21). To the extent that assertion of sexual or gender identity, in exercise of free speech, association, through express manifestations in whatever form, is concerned, one cannot join issue. Equally, if one has by some State process, measure or conduct been barred from expressing one's choice publicly, the reasonableness of that prohibition or order can be tested on grounds enumerated in Article 19(2), if such barriers are through a valid law or orders traceable to law., However, when the law is silent and leaves the parties to express choice, Article 19(1)(a) does not oblige the State to enact a law or frame a regulation which enables the facilitation of that expression. All judgments, from Sakal Papers to Bennett Coleman and Express Newspapers, were based on the effect of laws or policies based on statutory provisions. Equally, in the absence of a legal framework enabling citizens to form a particular kind of association, the Court could not have validly created a regime enabling recognition or regulating such associations. Similarly, in the absence of any enacted law which obliges meaningful facilitation of transport such as roads, it is hard to visualize that a citizen can approach the Court and seek the construction of a road to enforce the right to travel (Article 19(1)(d)), or seek the Court’s intervention to create a network of roads or other modes of transportation. Likewise, in the absence of a basic housing scheme, if the Court is approached for enforcement of Article 19(1)(e), it would not call upon the State to create one either by framing a general legislative policy or through law. Furthermore, this Court has also recognized that there can be reasonable restrictions in the acquisition and enjoyment of certain types of properties in many States. Given the nature of rights under Articles 19 and 21, the enjoyment of which are limited to the extent reasonable laws within the bounds of the specified provisions, it would be difficult to translate the positive obligations as articulated in the learned Chief Justice’s opinion., History or traditions may not be the only methods to trace constitutional values which can arguably be the result of an evolving society. Yet the Court cannot stray too far from the express provisions and the manner in which they are cast. In the case of free speech and expression, right to association and the other rights spelt out in Article 19 and the rights spelt out in Article 25, the core content of these are hard‑fought freedoms and rights primarily directed against State action and its tendency to curb them. To the question whether it is possible to locate an entitlement to lead to positive obligation and to facilitate the exercise of free speech, generally by mandating a horizontally applicable parliamentary law or legal regime, the answer would be a self‑evident negative., There is no difficulty about the right of two consenting persons to decide to live together, to cohabit with each other, and create their unique idea of a home, unconstrained by what others may say. That is the natural sequitur to K.S. Puttaswamy and Navtej Johar. Conduct hitherto criminalised is now permissible. The liberative effect of Section 377 being read down is that two individuals, regardless of their sexual orientation, are enabled to live together with dignity and also protected from any kind of violence for living and existing together. Therefore, the right to be left alone, the right to exercise choice, the right to dignity, and to live one's life with the person of one's choice is an intrinsic and essential feature of Article 21 of the Constitution., The idea that one right can lead to other rights emanating from it has been conclusively rejected by Supreme Court of India by seven judges in All India Bank Employees Association v. National Industrial Tribunal. That decision was quoted with approval in Maneka Gandhi v. Union of India. This theory has been firmly rejected in the All India Bank Employees Association case and we cannot countenance any attempt to revive it, as that would completely upset the scheme of Article 19(1). As Justice Rajagopala Ayyanger, speaking on behalf of the Court, said, “by a series of ever expanding concentric circles in the shape of rights concomitant to concomitant rights and so on, lead to an almost grotesque result”. So also, for the same reasons, the right to go abroad cannot be treated as part of the right to carry on trade, business, profession or calling guaranteed under Article 19(1)(g). The right to go abroad is clearly not a guaranteed right under any clause of Article 19(1)., As the two‑judge bench decisions have affirmed whilst there is no dispute that there is an interconnectedness of various fundamental rights, their manifestations in different forms especially under Article 19 and the distinct grounds on which they can be circumscribed, sets each freedom and right apart. While the right to free speech and expression may be exercised in conjunction with the right to association and even the right to assemble and move, nevertheless the extent of the assertion of these rights collectively would depend on the circumstances of the case and the nature of the curbs imposed (by law). Thus, for instance, the right to protest in the form of a procession is subjected to laws reasonably restricting movement in the larger interests of the public. It is questionable whether the imposition of valid restrictions and curbs in such circumstances can be successfully impugned only on the ground that their right to free speech and assembly are violated. If the restriction is valid for one fundamental right, it is equally valid for the others on an application of the test laid down in Maneka Gandhi. Rather it is the test of reasonableness and the proximity to the disturbance of public order, when such restriction is imposed, that becomes the focal point of debate. Therefore, in the abstract every right enumerated in Article 19 and other Article 25 can be exercised freely without hindrance by all. However, it is the assertion of the right, in the face of some threat by State action or despite State protection, which becomes the subject of court scrutiny. The extent of right to free speech is subject to reasonable restrictions, to further inter alia, public order or decency and morality. The right to association is hedged by reasonable restrictions inter alia, in furtherance of public order or morality. The right to travel and settle in any part of the country is subject to reasonable restrictions in the interests of the general public or for the interests of any scheduled tribe. Likewise, the freedom of conscience is both internal and external. As long as an individual exercises it from within and in privacy, there can be ordinarily no inroads into it; its external manifestation may call for scrutiny at given points in time.
id_851	17	That the State should or ought to order such social institutions is different from a direction issued by the Supreme Court of India, which they must carry out; the latter is what we take exception to, and place our reservations against., Therefore, even if we were to, for argument's sake, recognise an entitlement under the Constitution to enter into an abiding cohabitation relationship or union, in our opinion it cannot follow to a claim for an institution. There are almost intractable difficulties in creating, through judicial diktat, a civil right to marry or a civil union, no less, of the kind that is sought by the petitioners in these proceedings. Ordering a social institution or re‑arranging existing social structures, by creating an entirely new kind of parallel framework for non‑heterosexual couples, would require conception of an entirely different code, and a new universe of rights and obligations. This would entail fashioning a regime of state registration of marriage between non‑heterosexual couples; the conditions for a valid matrimonial relationship amongst them, spelling out eligibility conditions such as minimum age, relationships which fall within prohibited degrees, grounds for divorce, right to maintenance, alimony, etc., As a result, with due respect, we are unable to agree with the conclusions of the learned Chief Justice, with respect to tracing the right to enter into or form unions from the right to freedom of speech and expression (Article 19(1)(a)), the right to form associations (Article 19(1)(c)), along with Article 21 and any corresponding positive obligation. It is reiterated that all queer persons have the right to relationship and choice of partner, co‑habit and live together, as an integral part of choice, which is linked to their privacy and dignity. Any further discussion on the rights which consenting partners may exercise is unnecessary. No one has contested that two queer partners have the rights enumerated under Article 19(1)(a), (c) and (d), or even the right to conscience under Article 25. The elaboration of these rights, to say that exercise of choice to such relationships renders these rights meaningful, and that the State is obliged to recognise a bouquet of entitlements which flow from such an abiding relationship of this kind is not called for. We therefore, respectfully disagree with that part of the learned Chief Justice’s reasoning, which forms the basis for some of the final conclusions and directions recorded in his draft judgment., V. Inapplicability of the Special Marriage Act A. Challenge to the Special Marriage Act on the ground of impermissible classification. The petitioners complained that provisions of the Special Marriage Act, inasmuch as they excluded, or do not provide for marriage of non‑heterosexual couples, are discriminatory, because the classification made in its various provisions are heteronormative, thus discriminating against non‑heterosexual couples. This exclusion is the basis of their challenge., Hostile classification, which results in exclusion from benefits of a statute or policy, is based on the understanding that where equals are treated differently, without any reasonable basis as held in D.S. Nakara v. Union of India: the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. There ought to be a causal connection between the basis of classification and the object of the statute. An executive action could be sustained only if the twin tests of reasonable classification and the rational principle co‑related to the object sought to be achieved are satisfied., What is an intelligible differentia on which the classification is to be drawn distinguishing objects or persons, or conditions, for the purpose of legislative or executive policy? The premise of classification is to discriminate. The theory of permissible classification rests, therefore, on the basis for differentiation, and its relation to the object of the measure or the law. Permissible classification, therefore, should result in valid differentiation; but it crosses the line when it has a discriminatory effect, of excluding persons, objects or things which otherwise form part of the included group. Kedar Nath Bajoria v. State of West Bengal explained that Article 14 cannot mean that all laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purposes of legislation. To put it simply, all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain., After a fairly detailed examination of previous precedents, recently, in Chandan Banerjee v. Krishna Prasad Ghosh, the Supreme Court of India explained the principles applicable to determine whether classification by any law or policy can be upheld: (i) Classification between persons must not produce artificial inequalities. The classification must be founded on a reasonable basis and must bear nexus to the object and purpose sought to be achieved to pass the muster of Articles 14 and 16; (ii) Judicial review in matters of classification is limited to a determination of whether the classification is reasonable and bears a nexus to the object sought to be achieved. Courts cannot indulge in a mathematical evaluation of the basis of classification or replace the wisdom of the legislature or its delegate with their own., The principles which emerge from the above line of precedents can be summarised as follows: Classification between persons must not produce artificial inequalities. The classification must be founded on a reasonable basis and must bear nexus to the object and purpose sought to be achieved to pass the muster of Articles 14 and 16; Judicial review in matters of classification is limited to a determination of whether the classification is reasonable and bears a nexus to the object sought to be achieved. Courts cannot indulge in a mathematical evaluation of the basis of classification or replace the wisdom of the legislature or its delegate with their own. This Supreme Court, in Transport & Dock Workers Union v. Mumbai Port Trust, explained how differential treatment may not always result in discrimination and it violates Article 14 only when there is no conceivable reasonable basis for the differentiation., The discussion on equality and the limits of permissive classification were conveniently summarised by the seven‑judge bench in In Re the Special Courts Bill, 1978 (hereafter, Re Special Courts Bill). The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws. The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject‑matter of the legislation their position is substantially the same. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense abovementioned., For a moment, if it is assumed (as the petitioners argue) that the classification is suspect, because non‑heterosexual couples are not provided the facility of marriage, yet such under‑classification is not per se discriminatory. This aspect was highlighted by the Supreme Court of India in Ambica Mills: since the classification does not include all who are similarly situated with respect to the purpose of the law, the classification might appear, at first blush, to be unreasonable. But the Court has recognised the very real difficulties under which legislatures operate, difficulties arising out of both the nature of the legislative process and of the society which legislation attempts perennially to re‑shape, and it has refused to strike down indiscriminately all legislation embodying classificatory inequality here under consideration. In an earlier decision, this Supreme Court upheld the tax imposed upon joint families in Kerala, based on Marumakkattayam law. The law imposed expenditure tax upon those professing the Marumakkattayam unit and defined it in such a manner that it omitted to include Mapillas (non‑Hindus) who also followed that system. This Court held that such under‑inclusion did not attract the vice of discrimination, in N. Venugopala Ravi Varma Rajah v. Union of India and observed: the mere fact that the law could have been extended to another class of persons who have certain characteristics similar to a section of the Hindus but have not been so included is not a ground for striking down the law., The question of some categories being left out, when a new legislation is introduced, was the subject matter of the decision in Ajoy Kumar Banerjee & Ors. v. Union of India & Ors. where it was held that Article 14 does not prevent legislature from introducing a reform i.e. by applying the legislation to some institutions or objects or areas only according to the exigency of the situation and further classification of selection can be sustained on historical reasons or reasons of administrative exigency or piecemeal method of introducing reforms. The law need not apply to all the persons in the sense of having a universal application to all persons. A law can be sustained if it deals equally with the people of a well‑defined class, such as employees of insurance companies, and such a law is not open to the charge of denial of equal protection on the ground that it had no application to other persons. These judgments have underlined that exclusion or under‑inclusion, per se, cannot be characterised as discriminatory, unless the excluded category of persons, things or matters, which are the subject matter of the law (or policy) belong to the same class (the included class)., The statement of objects and reasons of the Special Marriage Act reads as follows: This Bill revises and seeks to replace the Special Marriage Act of 1872 so as to provide a special form of marriage which can be taken advantage of by any person in India and all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess. The parties may observe any ceremonies for the solemnisation of their marriage, but certain formalities are prescribed before the marriage can be registered by the marriage officers. For the benefit of Indian citizens abroad, the Bill provides for the appointment of Diplomatic and Consular Officers as Marriage Officers for solemnising and registering marriages between citizens of India in a foreign country. Provision is also sought to be made for permitting persons who are already married under other forms of marriage to register their marriages under this Act and thereby avail themselves of these provisions. The Bill is drafted generally on the lines of the existing Special Marriage Act of 1872 and the notes on clauses attached thereto explain some of the changes made in the Bill in greater detail., The Statement of Objects and Reasons of the Special Marriage Act clearly suggests that the sole reason for the enactment of the Act was to replace the earlier colonial era law and provide for certain new provisions; it does not refer to any specific object sought to be achieved or the reasons that necessitated the enactment of the new Act other than that it was meant to facilitate marriage between persons professing different faiths. If one looks at the enacted provisions, especially Sections 19‑21 and 21A, Sections 24, 25, 27, 31, 37 and 38, there can be no doubt that the sole intention was to enable marriage (as it was understood then, i.e., for heterosexual couples) of persons professing or belonging to different faiths, an option hitherto available, subject to various limitations. There was no idea to exclude non‑heterosexual couples, because at that time, even consensual physical intimacy of such persons was outlawed by Section 377 of the Indian Penal Code. So, while the Act sought to provide an avenue for those marriages that did not enjoy support in society, or did not have the benefit of custom to solemnise, it would be quite a stretch to say that this included same‑sex marriages. Therefore, the challenge to the constitutionality of the statute must fail. It is settled by decisions of the Court that as long as an objective is clearly discernible, it cannot be attacked merely because it does not make a better classification. The need for a law or a legal regime that provides or facilitates matrimony of queer couples is similar to the need to facilitate inter‑faith marriages which is what drove the Parliament to enact the Special Marriage Act., The next question urged is that the passage of time has rendered the exclusion of queer couples from the benefit of the Special Marriage Act discriminatory. This line of argument is based on this Court’s reasoning that with passage of time, a classification which was once valid could become irrelevant and insupportable, thus discriminatory. The first of such decisions was Motor and General Traders v. State of Andhra Pradesh wherein a provision of the state rent control legislation (which exempted premises constructed after 26.08.1957) was under challenge. The idea was to provide impetus to construction of houses; however, the long passage of time resulted in two classes of tenants, i.e., those residing in older premises, who were covered by the law, and those who lived in premises constructed later. This Court held that the continued operation of such exemption rendered it unconstitutional: there being no justification for the continuance of the benefit to a class of persons without any rational basis whatsoever, the evil effects flowing from the impugned exemption have caused more harm to society than one could anticipate. What was justifiable during a short period has turned out to be a case of hostile discrimination by lapse of nearly a quarter of a century. The second answer to the above contention is that mere lapse of time does not lend constitutionality to a provision which is otherwise bad. Almost identically, in Rattan Arya v. State of Tamil Nadu the validity of Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960 was under challenge, and this Court held that a provision which was perfectly valid at the commencement of the Act could be challenged later on the ground of unconstitutionality and struck down on that basis. What was once a perfectly valid legislation may in course of time become discriminatory and liable to challenge on the ground of its being violative of Article 14. The judgment cited by the petitioners, that is Satyawati Sharma v. Union of India, also dealt with rent legislation which differentiated between non‑residential and residential buildings., In all the judgments cited by petitioners, the Supreme Court was able to discern that a classification made at an earlier point in time had lost its relevance, and operated in a discriminatory manner. In some circumstances, rather than declaring the entire law void, this Court read down the relevant provision to the extent the statute could be so read. In the present case, the petitioners’ arguments with respect to reading down provisions of the Special Marriage Act are insubstantial. The original rationale for the Special Marriage Act was to facilitate inter‑faith marriages. That reason is as valid today as it was at the time of birthing that law. It cannot be condemned on the ground of irrelevance, due to passage of time. It would be useful to recall principle (9) of the opinion in Re Special Courts Bill (supra). The classification was primarily not between heterosexual and non‑heterosexual couples, but heterosexual couples of differing faiths. All its provisions are geared to and provide for a framework to govern the solemnisation, or registration, of the marital relationship, which replicates the status that different personal laws bestow. Since there was no one law which could apply for couples professing differing religions, the Special Marriage Act created the governing norms – such as procedure, minimum age, prohibited degree of relationship and forbidden relationships for the male and female spouses respectively (through different schedules); the grounds of divorce, etc. The relevance of the Special Marriage Act has gained more ground because of increasing awareness and increasing exercise of choice by intending spouses belonging to different faiths. It cannot be said, by any stretch of the imagination, that the exclusion of non‑heterosexual couples from the fold of the Special Marriage Act has resulted in its ceasing to have any rationale, and thus becoming discriminatory., We, therefore, agree with the reasoning elaborated by the Chief Justice Dr. Chandrachud, Judge that the challenge to the Special Marriage Act fails., B. Interpretation of provisions of the Special Marriage Act. The provisions of the Special Marriage Act are incapable of being read down, or interpreted by reading up, in the manner suggested by the petitioners. We have supplemented the Chief Justice’s conclusions with further reasoning briefly below. The petitioners’ efforts have been aimed at persuading the Supreme Court of India to interpret the provisions of the Special Marriage Act in a manner that accommodates non‑heterosexual couples and facilitates this marriage. Their arguments were centred around reading its specific provisions – Section 2(b) read with Part I (for a male) and Part II (for a female) (degrees of prohibited relationships), Section 4(c), Section 12, 15, 22, 23, 27(1); 27(1A) (special ground of divorce for wife), 31(1)(iiia) and (2) (special provision for jurisdiction in case of proceeding for the wife), 36 and 37 (alimony for the wife), 44 (bigamy) – which present a dominant underlying heteronormative content. They argue that this Court should adopt a purposive construction of the provisions of the Special Marriage Act, and interpret it in light of this Court’s previous decisions in Dharani Sugars and Chemicals Ltd v. Union of India and X v. Principal Secretary., In Dharani Sugars, the challenge was against a new policy introduced by the Reserve Bank of India. The petitioners contended that there was no authorization under the RBI Act to frame the impugned policy. Although the Court acknowledged that new facts can influence the interpretation of existing law, it ultimately upheld the policy based on existing provisions that empowered the RBI to issue such policies. A careful examination of this judgment would reveal that even though discussion on the interpretation that unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them indeed occurred; but the Court also noticed that this doctrine does not, however, mean that one can construe the language of an old statute to mean something conceptually different from what the contemporary evidence shows that Parliament must have intended., This Supreme Court, in X v. Principal Secretary while reading down the exclusion of unmarried women from the benefit of the Medical Termination of Pregnancy Act, 1971, also relied on Dharani Sugars to invoke the principle that a statute always speaks. Noting that the Act, and more so its amendment, was to enable women to terminate unwanted pregnancies, the reasons for which could be manifold, the Court held that such exclusion was arbitrary and discriminatory. Further, the Court relied on Badshah v. Sou. Urmila Badshah Godse which held that change in law precedes societal change and is even intended to stimulate it and that just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. Similarly, in All Kerala Online Lottery Dealers Association v. State of Kerala & Ors., this Court referred to the decision of the Court in State v. S.J. Choudhary wherein it was observed that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law., Furthermore, the petitioners relied on the interpretation of this Supreme Court in Githa Hariharan v. Union of India, wherein the Court construed the word 'after' in Section 6(a) of the Hindu Minority and Guardianship Act, 1956 as meaning \in the absence of – be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise\ – thus, saving it from the vice of discrimination. Reliance was also placed on Association of Old Settlers of Sikkim & Ors. v. Union of India where an exemption provision discriminated against Sikkimese women who may have had their names registered in the Register of Sikkim subjects, married non‑Sikkimese on or after 1st April 2008, and excluded them from the benefit. This Court held such discrimination to be violative of equality under Article 14 of the Constitution of India., In Independent Thought, this Court invalidated as discriminatory a provision which permitted sex between a man and a young woman married to him, above the age of 15 years. The resultant classification was that sex with any woman below 18 years, irrespective of consent, was defined as rape. Therefore, also Exception 2 in so far as it relates to girls below 18 years is discriminatory and violative of Article 14 of the Constitution., The principle of purposive interpretation was relied upon by the petitioners to urge that a gender‑neutral interpretation or use of words which include non‑heterosexual couples should be resorted to. This Supreme Court, in S.R. Chaudhuri v. State of Punjab & Ors. remarked that the words used may be general in terms but their full import and true meaning has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve., Ahron Barrack in his treatise stated as follows: Purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its (public or private) language.
id_851	18	Supreme Court of India has also held that there can be occasions when words may be read in a particular manner, if it is sure that the draftsman would have wished it to be so, given the nature of the expressions, and, at the same time, indicated the limits for that principle, while quoting from the treatise Principles of Statutory Interpretation by G.P. Singh, in Ebix Singapore Private Limited and Ors. v. Committee of Creditors of Educomp Solutions Ltd & Ors.: A departure from the rule of literal construction may be legitimate so as to avoid any part of the statute becoming meaningless. Words may also be read to give effect to the intention of the Legislature which is apparent from the Act read as a whole. Application of the mischief rule or purposive construction may also enable reading of words by implication when there is no doubt about the purpose which Parliament intended to achieve. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these or similar words would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Other decisions too have endorsed this line of reasoning., The objects of a statute acquire primacy while interpreting its provisions, if the need so arises. Therefore, in interpretation of any statute or provision, Supreme Court of India, long ago, in Workmen of Dimakuchi Estate v. Management of Dimakuchi Tea Estate underlined that where there are doubts about the meaning of a provision, they are to be understood in the sense in which they best harmonise with the subject of the enactment and that popular meanings, or strict grammatical import, may yield to the subject or the occasion on which they are used, and the object to be attained. This object‑based interpretation was adopted in several decisions., Supreme Court of India emphasized in Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors. that interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. The interpretation that makes the textual interpretation match the contextual is best., In M. Nizamuddin v. Chemplast Sanmar Ltd & Ors. ((2010) 4 Supreme Court Cases 240), it was observed: Purposive construction has often been employed to avoid a lacuna and to suppress the mischief and advance the remedy. It is a settled rule that if the language used is capable of bearing more than one construction and if a construction results in absurdity or anomaly, such construction has to be rejected and preference should be given to a construction that brings it into harmony with its purpose and avoids absurdity or anomaly, as it may always be presumed that while employing a particular language in the provision absurdity or anomaly was never intended. Girodhar G. Yadalam v. Commissioner of Wealth Tax & Ors. [2015] 15 Supreme Court Reports 543; K.H. Nazar v. Mathew K. Jacob, (2020) 14 Supreme Court Cases 126, which states that in interpreting a statute the problem or mischief that the statute was designed to remedy should first be identified and then a construction that suppresses the problem and advances the remedy should be adopted., In New India Assurance Co. Ltd. v. Nusli Neville Wadia [2007] 13 Supreme Court Reports 598, this court explained purposive interpretation to mean one which enables a superior court to interpret a statute in a reasonable manner; the court must place itself in the chair of a reasonable legislator or author. Thus, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled., In Bipinchandra Parshottamdas Patel v. State of Gujarat [2003 (4) Supreme Court Cases 642], a provision enabling the suspension of an elected official of a municipality, under detention during trial, was held to include detention during investigation, having regard to the object or the mischief sought to be addressed by the law., In Bank of India v. Vijay Transport & Ors., the court dealt with the plea that a literal interpretation is not always the only interpretation of a provision in a statute and that the court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words used which controls the literal meaning of such words., The five‑judge decision of Supreme Court of India in Central Bank of India v. Ravindra held: Ordinarily, a word or expression used at several places in one enactment should be assigned the same meaning so as to avoid a head‑on clash between two meanings assigned to the same word or expression occurring at two places in the same enactment. It should not be lightly assumed that Parliament had given with one hand what it took away with the other. That construction is to be rejected which will introduce uncertainty, friction or confusion into the working of the system. While embarking upon interpretation of words and expressions used in a statute it is possible to find a situation when the same word or expression may have somewhat different meaning at different places depending on the subject or context. This is however an exception which can be resorted to only in the event of repugnancy in the subject or context being spelled out. It has been the consistent view of the Supreme Court of India that when the legislature used the same word or expression in different parts of the same section or statute, there is a presumption that the word is used in the same sense throughout. The House of Lords in Farrell v. Alexander held that where the draftsman uses the same word or phrase in similar contexts, he must be presumed to intend it in each place to bear the same meaning. The court, having accepted invitation to embark upon interpretative expedition, shall identify on its radar the contextual use of the word or expression and then determine its direction avoiding collision with icebergs of inconsistency and repugnancy., The objects that a statute seeks to achieve are to be gleaned not merely from a few expressions in the statement of objects and reasons for the statute. It may be that in interpreting the words of the provision of a statute, the setting in which such words are placed may be taken into consideration, but that does not mean that even though the words which are to be interpreted convey a clear meaning, still a different interpretation or meaning should be given to them because of the setting. In other words, while the setting of the words may sometimes be necessary for the interpretation of the words of the statute, that has not been ruled by Supreme Court of India to be the only and the surest method of interpretation., The provisions and the objects of the Special Marriage Act (SMA), as discussed in the earlier section on discrimination, clearly point to the circumstance that Parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage. The petitioners argued that the purpose of the SMA was to provide a framework for civil marriages not based on personal law includes same‑sex marriages. Yet, structurally, Section 4 (conditions relating to solemnisation of special marriages) contemplates marriages between a man and a woman. To read SMA in any other manner would be contrary to established principles of statutory interpretation as discussed in preceding paragraphs. It is also not permissible for the court to 'read up and substitute the words any two persons' to refer to a marriage between non‑heterosexual couples., Gender‑neutral interpretation, much like many seemingly progressive aspirations, may not really be equitable at times and can result in women being exposed to unintended vulnerability, especially when genuine attempts are made to achieve a balance in a social order that traditionally was tipped in favour of cis‑heterosexual men. The purpose of terms like wife, husband, man, and woman in marriage laws (and other laws on sexual violence and harassment as well) is to protect a socially marginalised demographic of individuals. For instance, women facing violence by their partner have a right to seek recourse under the Domestic Violence Act, which assures that they are safeguarded and provided relief against such injustice. In fact, provisions in SMA for alimony and maintenance (Section 36 and 37) confer rights to women; likewise certain grounds of divorce (conviction of husband for bigamy, rape) entitle the wife additional grounds (Section 27) to seek divorce. Other provisions such as Section 2(b) read with Part I (for a male) and Part II (for a female) enact separate degrees of prohibited relationships; Section 4(c) uses the terms husband and wife; Sections 12, 15, 22, 23, 27(1), Section 31(1)(iiia) and (2) (special provision for jurisdiction in case of proceeding for the wife), Sections 36 and 37 provide for maintenance and alimony for the wife; Section 44 (punishment of bigamy). The general pattern of these provisions, including the specific provisions enabling or entitling women to certain benefits, is that even if, for argument’s sake, it were accepted that Section 4 of SMA could be read in gender‑neutral terms, the interplay of other provisions would lead to anomalous results, rendering the SMA unworkable., Furthermore, if provisions of SMA are to be construed as gender‑neutral (such as persons or spouses, in substitution of wife and husband) as the petitioners propose, it would be possible for a cis‑woman’s husband to file a case or create a narrative to manipulate the situation. Gender‑neutral interpretation of existing laws would therefore complicate an already exhausting path to justice for women and leave room for the perpetrator to victimise them. A law is not merely meant to look good on paper; it is an effective tool to remedy a perceived injustice, addressed after due evaluation about its necessity. A law which was consciously created and fought for by women cannot, therefore, by an interpretive sleight be diluted., Supreme Court of India stated in Delhi Transport Corporation v. Delhi Transport Corporation Mazdoor Congress that when a provision is cast in definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature, if it so desires, to amend it. Similarly, in Cellular Operators Association of India v. Telecom Regulatory Authority of India, the court applied the rule of Delhi Transport Corporation and held that the construction suggested would lead the court to add something to the provision which does not exist, which would be nothing short of the court itself legislating and therefore, impermissible., There is no known rule by which a word or group of words in one provision can have two different meanings. The effect of the petitioners’ argument would be to say that generally, provisions of SMA should be read in a gender‑neutral manner (spouse for wife and husband; persons instead of male and female, etc.). Whilst it could in theory be possible to read such provisions in the manner suggested, their impact on specific provisions such as the separate lists for wives and husbands for purposes of age, determining prohibited degrees of relationships, and remedies such as divorce and maintenance, leads to unworkable results. Most importantly, the court, in its anxiety to grant relief, would be ignoring provisions that deal with and refer to personal laws of succession, namely Sections 19, 20, 21 and 21A. The court cannot look at a text containing words with two optional meanings in the same provision., Likewise, with regard to the Foreign Marriage Act (FMA), the petitioners sought that certain conditions and provisions be read in gender‑neutral terms to enable same‑sex marriage. FMA is a secular legislation wherein Section 4 states that a marriage between parties may be solemnised under this Act, provided that at least one of the two parties is a citizen of India. However, bride and bridegroom are used in Section 4 (relating to the age of the parties at time of solemnisation), the Third and Fourth Schedule (which prescribe the declarations by both parties and certification of marriage). The conditions for such marriages, under Section 4(1)(c) of FMA, specifically require the parties to be a bride and a bridegroom, i.e., it is gendered in nature. Furthermore, the terms husband and wife are used in Section 13 and 18 in relation to the solemnisation of marriage and provisions where matrimonial reliefs (as under the SMA) are available under the FMA. The petitioners’ prayer that this Court read the references to husband or wife or spouse in the same manner as discussed in relation to the SMA is unsustainable., As far as the petitioners’ reliance on Ghaidan; Fourie; and precedents from other foreign jurisdictions are concerned, we agree with the reasoning given by the Chief Justice that our courts should exercise caution when relying on the law in other jurisdictions. We should be mindful of the distinct contextual framework within which those decisions have been given., As discussed earlier, the words of the statutes have to be read, taking into account the fabric of concepts, rights, obligations and remedies which it creates. Removing or de‑contextualising provisions from their setting and purposively construing some of them cannot be resorted to, even in the case of the Special Marriage Act., I do not wish to revisit the history of how Supreme Court of India evolved the test of considering the effect or impact of laws on Fundamental Rights; it would be appropriate to say that the object‑based test favored and applied in A.K. Gopalan was discarded decisively by the eleven‑judge Bench in R.C. Cooper. The true test was spelt out in the following manner: it is not the object of the authority making the law impairing the right of a citizen, nor the form of action that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual's rights. This line of reasoning was applied and commended in Maneka Gandhi; it is now an intrinsic part of the constitutional lore., In recent times, Supreme Court of India has applied, in relation to claims of discrimination, the test of indirect discrimination. This dimension was explained in Lt. Col. Nitisha v. Union of India: First, the doctrine of indirect discrimination is founded on the compelling insight that discrimination can often be a function, not of conscious design or malicious intent, but unconscious or implicit biases or an inability to recognize how existing structures, institutions, and ways of doing things have the consequence of freezing an unjust status quo. In order to achieve substantive equality prescribed under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited. In Navtej Johar, the concurring judgment of the present Chief Justice relied on the directive of the European Parliament which defines indirect discriminatory impact as: \where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.\ An earlier decision of Supreme Court of India relied on the concept and application of indirect discrimination test in Om Kumar and Others v. Union of India – in the context of discussing the principle of proportionality: \If indirect discrimination were established, the Government would have to show very weighty reasons by way of objective justification, bearing in mind that derogations from fundamental rights must be construed strictly and in accordance with the principle of proportionality.\ Later judgments (S.K. Nausad Rahaman & Others v. Union of India and Ravinder Kumar Dhariwal v. Union of India) also applied the indirect discrimination test to judge the validity of the measure in question., The common feature of the effect of the law and of the action upon the right in R.C. Cooper and the decisions which applied the indirect discrimination lens is that the objects of the legislation or the policy involved are irrelevant. It is their impact, or the effect, on the individual, which is the focus of the court’s inquiry. In one sense, the development of the indirect discrimination test is a culmination of the methods which Supreme Court of India adopted in judging the discriminatory impact of any law or measure on an individual., Supreme Court of India, in the previous sections of this judgment, has discussed and concluded how the claim for reading a fundamental right to marry into the Constitution cannot be granted. However, the court cannot be oblivious of the various intersections which the existing law and regulations impact to queer couples., The constitution exists, and speaks for all, not the many or some. The felt indignities of persons belonging to the LGBTQIA+ community need no forensic proof; they do have to meet a quantifiable threshold, which Supreme Court of India has outlined in Navtej Johar. The refusal to acknowledge choice, by society, is because it is statedly based on long tradition (dating back to the times when the constitution did not exist). In such cases, the issue is whether the State’s silence comes in the way of this Court recognizing whether the petitioners have been denied the right to choose their partner., It is important to recognize that while the State ipso facto may have no role in the choice of two free‑willed individuals to marry, its characterising marriage for various collateral and intersectional purposes, as a permanent and binding legal relationship, recognized as such between heterosexual couples only, impacts queer couples adversely. The intention of the State, in framing the regulations or laws, is to confer benefits to families or individuals who are married. This has the result of adversely impacting queer couples. By recognizing heterosexual couples’ unions and cohabitation as marriages in various laws and regulations such as employment (nominations in pension, provident fund, gratuity, life and personal accident insurance policies); credit (particularly joint loans to both spouses, based on their total earning capacity); and compensation in the event of fatal accidents, and not providing for non‑heterosexual couples such recognition, results in their exclusion., The individual earned benefits (by each partner or both collectively), which would be available to family members (such as employee state insurance benefits, in the event of injury of the earning partner, provident fund, compensation, medical benefits, insurance benefits, in the event of death of such earning partner) are examples of what the injured or deceased partner, by dint of his or her work, becomes entitled to, or the members of his or her family become entitled to. The denial of these benefits and inability of the earning partner in a queer relationship, therefore, has an adverse discriminatory impact. The State may not intend the discrimination or exclusion in the conferment of such benefits or social welfare measures. Yet, the framework of such policies or regulations, expressed in favour of those in matrimonial relationships, results in denial of entitlements despite the professional abilities and contributions of such individuals., The objective of many of these laws or schemes is to confer or provide entitlements based on individual earning and contribution. For example, provident fund is payable due to the employee’s personal contribution and their status as an employee, directly flowing from the functions discharged. Similarly, the objective of entitlement of benefits under the Employee State Insurance Act, and other such insurance‑related schemes or welfare measures (such as the Workmen’s Compensation Act), flow from the individual status, work, and effort of the concerned employee. Major part of these benefits, or all of them, flow in the event of certain eventualities such as fatal accident or death. The design of these statutes and schemes is to enable both the concerned subscriber or employee (in the event of infirmity or termination of employment) to receive them, or in an unforeseen event such as death, for his dependents to receive them. The restrictive way in which dependent or nominee(s) are defined (spouse, or members of the family in a heteronormative manner) excludes their enjoyment to the intended beneficiary., This deprivation has to be addressed. That these can be magnified can be illustrated by a few examples. For instance, a queer couple might live together as spouses (without legal recognition) for two decades. If one of them passes away in a motor vehicle accident, the surviving partner would not only be unable to get any share of the deceased partner’s estate, but also any portion of the compensation. In case the union was not with approval of their respective families, who might have ostracised or broken relationship with them, the result would be injustice, because the surviving partner, who shared life and cared for the deceased partner, especially during hard times, would be completely excluded from enjoying any benefits – all of which would go to the family members of the deceased (who may have even boycotted them). The same result would occur in the event of death of one partner; family pension and death benefits would be denied to the queer partner. This injustice and inequity results in discrimination, unless remedial action is taken by the State and central governments., It is relevant to record a note of caution at this juncture. While the right to marry or have a legally recognised marriage is only statutory, the right to cohabit and live in a relationship in the privacy of one’s home is fundamental, and enjoyed by all. This is not to say that the latter is unqualified or without restriction. Rather, that the latter is a right afforded to all, irrespective of the State’s recognition of the relationship or status, as in the case of married couples. The discriminatory impact recognised in the above paragraphs, however, is to highlight the effect of a legislative vacuum specifically on long‑term queer couples, who do not have the avenue of marriage, to entitle them to earned benefits. Could this same logic then be extended to heterosexual couples that choose not to get married, despite having the avenue? With respect, this would require further consideration by the State, and was an aspect that was neither argued, nor were we called upon to decide, in the present petitions. Therefore, it is pointed out that the State must remain cognizant of such an unwitting consequence of creating two parallel frameworks for live‑in or domestic partnerships and marriages, and the confusion or anomalies this may cause to gendered legal frameworks as they stand today while trying to remedy or mitigate the discrimination faced by queer couples., Addressing all these aspects and concerns means considering a range of policy choices, involving multiplicity of legislative architecture governing the regulations, guided by diverse interests and concerns – many of them possibly coalescing. On 03.05.2023, during the course of hearing, the learned Solicitor General, upon instructions, expressed the Union’s position that a high‑powered committee headed by the Union Cabinet Secretary would be formed to undertake a comprehensive examination to consider such impacts and make necessary recommendations in that regard., We are in agreement with Part (xi) of the learned Chief Justice’s opinion which contains the discussion on the right of transgender persons to marry. We are also in agreement with the discussion relating to gender identity, i.e., sex and gender are not the same, and that there are different people whose gender does not match with that assigned at birth, including transgender men and women, intersex persons, other queer gendered persons, and persons with socio‑cultural identities such as hijras, as well as the right against discrimination under the Transgender Persons Act, 2019. Similarly, discussion on the provisions of the Transgender Persons Act, 2019 and enumeration of various provisions, remedies it provides, and harmonious construction of its provisions with other enactments, do not need any separate comment. Consequently, we agree with the conclusion that transgender persons in heterosexual relations have the right to marry under existing laws, including personal laws regulating marriage. The court’s affirmation of the High Court judgment in Arun Kumar v. Inspector General of Registration is based upon a correct analysis., Some of the petitioners have challenged Regulation 5(3) of the 2020 Central Adoption Resource Agency (CARA) Regulations. By Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, consent of both spouses for adoption is necessary. By Section 57(5), the authority is enabled to frame any other criteria. CARA notified regulations in furtherance of Section 57(3) which inter alia mandates as a prerequisite that the prospective adopting couple should have been in a stable marital relationship for at least two years. The petitioners argued that these regulations relating to adoption were ultra vires the parent enactment, the Juvenile Justice (Care and Protection of Children) Act, and arbitrary for classifying couples on the basis of marital status for the purpose of joint adoption. We have perused the reasoning and conclusion by the learned Chief Justice on this aspect, and are unable to concur.
id_851	19	No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in the cases of relative or step‑parent adoption. The interpretation placed on Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act by the learned Chief Justice is that it contemplates joint adoption by both married and unmarried couples, but the condition requiring both spouses to consent applies only to married couples. Therefore, while the Juvenile Justice (Care and Protection of Children) Act is wider in its scope, the Child Adoption Regulation Act Regulation 5(3) [in furtherance of Section 57(5) which delegates power to prescribe any other criteria] stipulating a stable marital relationship exceeds the power granted by the parent Act and is ultra vires the express provisions and legislative policy of the Juvenile Justice (Care and Protection of Children) Act. Our disagreement with this characterization is laid out in Part A below. Thereafter, the learned Chief Justice has read down the offending part marital from Regulation 5(3) and held that the requirement of consent embodied in Regulation 5(2)(a) would be equally applicable on both married and unmarried couples. We are of the firm opinion that the exercise of reading down itself is unsustainable [See Part B below] and hence, this consequence though favourable cannot apply. Our reasoning in relation to the aspect of adoption by queer couples and the indirect discrimination faced is elaborated in Part C., A. Not a case of delegated legislation being ultra vires the parent Act. With respect, we disagree with the interpretation of Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act itself. A reading of the provision as a whole makes it amply clear that it intends joint adoption only to married couples. While the word couple is not preceded by married, the use of spouse later in the sentence rules out any other interpretation. The principle of noscitur a sociis (meaning of a word should be known from its accompanying or associating words) is squarely applicable; a provision is to be seen as a whole, wherein words are to be read in the context of accompanying or associating words. In K. Bhagirathi G. Shenoy and Ors. v. K.P. Ballakuraya & Anr. the Court observed: “It is not a sound principle in interpretation of statutes to lay emphasis on one word disjuncted from its preceding and succeeding words. A word in a statutory provision is to be read in collocation with its companion words. The pristine principle based on the maxim noscitur a sociis (meaning of a word should be known from its accompanying or associating words) has much relevance in understanding the import of words in a statutory provision. Furthermore, such an interpretation of construing a part of one provision as operating to one set of people, and not others, is simply not known to law.”, To read Section 57(2) as enabling both married and unmarried couples to adopt, but that the statutory provision contemplates a restriction or requirement of consent only on the former kind of couple is not based on any known principle of interpretation. There is a strong legislative purpose in the requirement of obtaining consent of the spouse, which is rooted in the best interest of the child; for their welfare and security. The parent Act and delegated legislation both are clear that a prospective adoptive parent can be a single person (whether unmarried, widower, etc.) and on them there exists no restriction other than on a single male being barred from adopting a girl child. The restriction of consent of partner applies only in the case of a couple because the child will enter into a family unit consisting of two parents as a result of the adoption and will in reality enjoy the home that is made of both partners. Acceptance, therefore, of the other partner is imperative; it would not be in the best interest of the child if one of the partners was unwilling to take on the responsibility. The only other legislative model is Section 7 and 8 of the Hindu Adoption and Maintenance Act, 1956 which mandates consent of both spouses (which, like other personal laws, uses the gendered language of wife and husband)., Therefore, given that we differ on the starting point itself that Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act permits joint adoption by both married and unmarried couples (as held by the learned Chief Justice) we are of the considered opinion that this is not a case of delegated legislation being ultra vires the parent Act., The legislative choice of limiting joint adoption only to married couples needs to be understood in the broader context of the Juvenile Justice (Care and Protection of Children) Act and its purpose, which is the best interest of the child. Legal benefits and entitlements flow either from or in relation to the individual adopting (when a single person adopts), or the married couple adopting as a unit. In the case of bereavement of such single parent, custody of the child may be taken by a relative, whereas it continues with the surviving spouse in the latter. But consider that in the case of a married couple there is a breakdown of marriage, or simply abandonment or neglect of one partner and the child by the other. There are protections in the law, as they stand today, that enable such deserted or neglected spouse to receive as a matter of statutory right maintenance and access to other protections. Undoubtedly, the Domestic Violence Act offers this protection even to those in an unmarried live‑in relationship, but consider a situation that does not involve domestic violence and is plain and simple a case of neglect or worse, desertion. It is arguable that both partners are equally responsible for the child after the fact of adoption; however it begs the question how can one enforce the protection that is due to this child?, The Juvenile Justice (Care and Protection of Children) Act merely enables adoption, but for all other consequences (i.e., relating to the rights of a child qua their parents and, in turn, obligations of a parent towards the said child) reference has to be made to prevailing law (law relating to marriage and divorce, maintenance, succession, guardianship, custody, etc.). When a single person adopts as an individual, their capabilities are assessed as per Section 57(1) and Regulation 5(1), and the responsibility of that child falls squarely on this individual. If that person enters into a relationship, whether it later succeeds or fails, is immaterial; the responsibility of the child remains squarely on the individual (until they are married and the partner legally adopts the child). When a couple adopts, they are jointly assessed, and in law the responsibility falls on both parents. If one parent were to abandon the relationship and the other parent is unable to maintain themselves or the child, recourse lies in other statutory provisions which enable a remedy to be sought. To read the law in the manner adopted by the learned Chief Justice, with all due respect, would have disastrous outcomes because the ecosystem of law as it exists would be unable to guarantee protection to the child in the case of breakdown of an unmarried couple adopting jointly. This therefore would not be in the best interest of the child., B. Not a case for reading down or other interpretive construction. Counsel relied on the case of X v. Principal Secretary where the Supreme Court of India read down “married woman” to “just woman” for the purpose of interpreting the Medical Termination of Pregnancy Act, to argue that a similar interpretation be adopted for the law relating to adoption. In our considered opinion, that case was on a different footing altogether; it related to an individual woman's right to choice and privacy, affecting her bodily autonomy. Given the fundamental right that each child‑bearing individual has and the objective of the Act, the classification on the basis of marital status was wholly arbitrary. The Juvenile Justice (Care and Protection of Children) Act and its regulations are on a different footing. Here, the object of the Act and guiding principle is the best interest of the child (and not to enable adoption for all)., It is agreeable that all marriages may not provide a stable home and that a couple tied together in marriage are not a morally superior choice or per se make better parents. Undoubtedly, what children require is a safe space, love, care and commitment which is also possible by an individual by themselves, or a couple married or unmarried. There is no formula for a guaranteed stable household. Principally, these are all conclusions we do not differ with. As a society and in the law we have come a long way from the limited conception of a nuclear family with gendered roles, and privileging this conception of family over other atypical families. However, the fact that Parliament has made the legislative choice of including only married couples for joint adoption (i.e., where two parents are legally responsible) arises from the reality of all other laws wherein protections and entitlements flow from the institution of marriage. To read down marital status as proposed may have deleterious impacts that only the legislature and executive could remedy, making this, much like the discussion on interpretation of the Special Marriage Act, an outcome that cannot be achieved by the judicial pen. Having said this, however, there is a discriminatory impact on queer couples, perhaps most visible through this example of adoption and its regulation, that requires urgent state intervention (elaborated in Part C)., Furthermore, the previous analysis of the Special Marriage Act has led this Court to conclude that its provisions cannot be modified through any process of interpretation and that the expression “spouse” means husband and wife or a male and female as the case may be, on an overall reading of its various provisions. By Section 2(64) of the Juvenile Justice (Care and Protection of Children) Act, expressions not defined in that Act have the same meanings as defined in other enactments. The Special Marriage Act is one example. Likewise, the Hindu Adoption and Maintenance Act contains the expression wife and husband. In these circumstances, we are of the opinion that the manner in which Section 57(2) is cast, necessitating the existence of both spouse and their consent for adoption of a child, means that Regulation 5(3) cannot be read down in the manner suggested by the learned Chief Justice., Therefore, in our opinion, whilst the argument of the petitioners is merited on some counts, at the same time the reading down of the provision as sought would result in the anomalous outcome that heterosexual couples who live together but choose not to marry may adopt a child together and would now be indirect beneficiaries without the legal protection that other statutes offer, making it unworkable (much like the discussion on the Special Marriage Act in Part V)., C. Discriminatory impact of adoption regulations on queer persons. Section 57(2) of that Act spells out the eligibility conditions of prospective adoptive parents. The petitioners’ argument was that the expression “marital” results in discrimination inasmuch as a single parent can adopt, the only prohibition being that a single man cannot adopt a girl child. Further, if a single man and/or a single woman choose to adopt separately as an individual and live together, the resultant de facto parents would still have a choice of marrying each other for the child in question to be legally the child of both parents. Or put differently, if a heterosexual couple wants to adopt a child jointly, they have the option of entering into a marriage, thereby making them eligible for joint adoption. However, in the absence of legal recognition of a queer couple union, they are left to adopt as individuals and the resultant de facto family would have no avenue for legal recognition. This iniquitous result too is an aspect which needs to be addressed as the impact here is not only on the queer couple (who have no avenue to seek legal recognition of their union) but also upon the children adopted by them (who have no say in the matter)., Furthermore, given the social reality that queer couples are having to adopt in law as individuals but are residing together and for all purposes raising these children together, the State arguably has an even more urgent need to enable the full gamut of rights to such children, qua both parents. For instance, in an unforeseen circumstance of death of the partner who adopted the child as an individual, the child may become the ward of the deceased’s relatives, who might or might not even be known to the child, whereas the surviving partner who has been a parent to the child for all purposes is left a stranger in law. Therefore, this is yet another consequence of the non‑recognition of queer unions that the State has to address and eliminate by appropriate mitigating measures., This is not to say that unmarried couples, whether queer or heterosexual, are not capable or suitable to be adoptive parents. However, once the law permits adoption by single individuals, the likelihood of their joining and co‑habiting cannot be ruled out. In such event, de facto family units can and do come about. The underlying assumption in the law as it exists, that such unmarried heterosexual or queer couples should not adopt needs to be closely examined. Similarly, the need of such couples to have and raise a family in every sense of the term has to be accommodated within the framework of the law, subject to the best interests of the child. The existing state of affairs which permits single individuals to adopt and later to live as a couple in due exercise of their choice, in effect deprives the children of such relationships of various legal and social benefits which are otherwise available to children of a married couple. In other words, given the objective of Section 57 and other allied provisions of the Juvenile Justice (Care and Protection of Children) Act, which is beneficial for children, the State as parens patriae needs to explore every possibility and not rule out any policy or legislative choice to ensure that the maximum welfare and benefits reach the largest number of children in need of safe and secure homes with a promise for their fullest development. This aspect is extremely important given that a large number of children remain neglected or orphaned., It goes without saying that the welfare and benefit of the children is paramount in every case and the State has the duty to act as parens patriae. That our country has countless children who are orphaned or neglected and in need of loving homes is not lost on us and is certainly a concern that the State is most acutely aware of. In these circumstances, it would be in the general interest of all children that such impact is removed at the earliest instance, after undertaking in‑depth study and analysis of the various permutations and combinations that would arise in opening adoption more widely without hampering the children’s rights. In its exercise of reframing the regulations or laws, it is reiterated that the State cannot, on any account, make regulations that are facially or indirectly discriminatory on the ground of sexual orientation. It would be entirely wrong if the observations herein are construed as saying that the State should hamper or interfere in queer persons who have in the past or are seeking to adopt as individuals. These observations are to be construed to enable the State to consider all options and implications with the object of promoting the best welfare of children, especially whether joint adoption can be facilitated to such willing couples while ensuring that the legal web of statutory protections and entitlements guaranteed to children are operationalised for these children as well., These observations are not meant to impede all possibilities and make all necessary policy and legislative changes, enabling children’s welfare. In other words, the possibility of queer couples adopting children should be given equal concern and consideration having regard to the larger interest of the largest number of children and their development., IX. Moulding relief. The breadth and amplitude of the Supreme Court of India’s jurisdiction is incontestable. The constitution framers created this as a fundamental right in most emphatic terms. This jurisdiction enables the Court to create and fashion remedies suited for the occasion, often times unconstrained by previous decisions. Yet the breadth of this power is restrained by the awareness that it is in essence judicial. The Court may feel the wisdom of a measure or norm that is lacking; nevertheless, its role is not to venture into functions which the constitution has authorised other departments and organs to discharge., Social acceptance is an important aspect of the matrimonial relationship, but that is not the only reality; even in the exercise of choice by the parties to a marriage, there may be no acceptance at all by members of their respective families; others too may shun them. Yet, their relationship has the benefit of the cover of the law, since the law would recognise their relationship and afford protection and extend benefits available to married persons. This however eludes those living in non‑heterosexual unions, who have no such recognition in all those intersections with laws and regulations that protect individual and personal entitlements that are earned, welfare based, or compensatory. The impact, therefore, is discriminatory., Does the existence of such discriminatory impacts, in these intersections with the State, and arising out of a variety of regulations and laws, impel the Supreme Court of India to fashion a remedy, such as a declaration, which enjoins legislative activity or instructs the executive to act in a specified manner, i.e., achieving non‑heterosexual couple marriage? This aspect cannot be viewed in isolation but in the context of our constitution’s entrenchment of separation of powers, which according to Kesavananda Bharati, Indira Gandhi and other judgments constitutes an essential feature of the Constitution. It is one thing for this Court to commend the State to eliminate the discriminatory impact of the intersections with laws and publicly administered policies and institutions upon non‑heterosexual couples, and entirely another to indirectly hold that through a conflation of positive obligations cast on the State, such individuals’ right to cohabit and form abiding relationships extends to the right or some entitlement to a legally recognised union that must be actualised by State policy or legislation., The petitioners relied on three judgments specifically to argue that this Court could issue directions to fill the legal lacunae: Common Cause, Vishaka & Ors v. State of Rajasthan (hereafter, Vishaka) and National Legal Services Authority (NALSA). We have briefly summarized why these were in a context different from the case before us., In Common Cause, the Court elaborated on the theme of liberty under Article 21 of the Constitution and the façade of dignity inherent in it. The Court relied on Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, Maneka Gandhi, and State of A.P. v. Challa Ramkrishna Reddy. The Court also relied on K.S. Puttaswamy, NALSA and Shabnam v. Union of India to underline the intrinsic value of dignity and further stated that life is not confined to the integrity of the physical body. Having said that, the Court formulated the right under Article 21 to include the right to die with dignity of a dying or terminally ill person and approved the application of only passive euthanasia. The Court further approved the idea of individual autonomy and self‑determination, building upon the directions granted in Aruna Ramchandra Shanbaug v. Union of India (hereafter, Aruna Shanbaug). The Court was also influenced by the recommendations of the 241st Law Commission Report which suggested incorporation of additional guidelines beyond what was spelt out in Aruna Shanbaug. The Court rejected the argument that the previous ruling in Gian Kaur v. State of Punjab did not rule that passive euthanasia can only be given effect to through legislation and further that the Court could only issue guidelines., The approach of Common Cause, as can be seen from the varied opinions of the Judges forming the Bench, was one of seeing the workability and the need to elaborate guidelines formulated in Aruna Shanbaug. The Court had no occasion, really speaking, but to consider whether the directions given could not have been given. Furthermore, there were reports in the form of Law Commission recommendations which formed additional basis for the Court’s discretion and the final guidelines. An important aspect is that all judgments in Common Cause located the right to passive euthanasia premising upon the right to human dignity, autonomy and liberty under Article 142., Vishaka was an instance where, in every sense of the term, there was all‑round cooperation as is evident from the position taken by the Union of India which had expressly indicated that guidelines ought to be formulated by the Court. The trigger for these guidelines was the resolve that gender equality (manifested in Articles 14 and 15 of the Constitution as well as the right to pursue one’s profession and employment [Article 19(1)(g)]) needed express recognition to ensure protection from sexual harassment in the workplace and to work with dignity, a basic human right which needed to be addressed in the context of women at workplace. The Court took note of international conventions and instruments and also held that guidelines had to be formulated for enforcement of Fundamental Rights till a suitable law is made. The Court expressly indicated what kind of behaviour was sexual harassment (para 2 of the guidelines) and further that regulations had to be formulated for prohibited sexual harassment and appropriate penalties at workplace. Other directions were that if the conduct amounted to an offence, the employer had to initiate appropriate action according to law and also ensure that the victims had the option of transfer of their perpetrator or their own transfer. Furthermore, disciplinary action in terms of the rules was directed with a further requirement that necessary amendments were to be carried out. The Court then requested the State to consider adopting suitable measures indicating legislation to ensure that the guidelines in the order were employed by the Government., Central to the idea of issuing directions or guidelines in Vishaka was the felt need to address a living concern—that of providing redressal against socially repressible conduct suffered by women in the course of employment. The Court stepped in to regulate this behaviour in public places, which though not criminalised or outlawed (other than in the limited context of Section 354 of the Indian Penal Code) actually tended towards criminal behaviour. The Court articulated the constitutional vision for bringing about gender parity and, to that end, elimination of practices which tended to lower the dignity and worth of women through unacceptable behaviour. Guided by Article 15(3), the Court stepped in, while limiting itself to regulate workplaces essential in the public field (State or State agencies). The Union of India was actively involved and had given suggestions at the time of formulation of these guidelines. At the same time, the Court realised its limitation and declared that such guidelines shall continue till appropriate laws are made. Existing service rules were amended to incorporate forums through which such grievance could be articulated. This later culminated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which applies not merely to public but all establishments., In NALSA, the Court again was confronted with an acute concern wherein the personhood of transgender persons itself was not recognised. The Court held that the intrinsic worth of every individual and the value of individuals to fully realise their rights was a premise embedded in the Constitution. The Court sought to address hostile discriminatory practices, which included violence that transgender persons were subjected to routinely. Given all these circumstances, the Court located the right of those identifying themselves as transgender persons squarely under Article 21 of the Constitution. Any discriminatory practice against such persons would violate their Article 15 right. The directions given were that such persons should be treated as third gender where appropriate and granted legal protection to their self‑identified gender identity. Further, the State and Central Government should seriously address problems faced by them by providing measures for medical care and facilities in hospitals, permitting them access to social welfare schemes for their betterment and taking other measures. The Court also constituted an expert committee to make an in‑depth study of problems faced by transgender persons., In the present case, however, the approach adopted in the above three cases would not be suitable. The Court would have to fashion a parallel legal regime comprising defined entitlements and obligations. Furthermore, such framework containing obligations would cast responsibilities upon private citizens and not merely the State. The learned Chief Justice’s conclusions also do not point towards directions of the kind contemplated in Vishaka. However, the outlining of a bouquet of rights and indication that there is a separate constitutional right to union enjoyed by queer couples, with the concomitant obligation on the State to accord recognition to such union, is what we take exception to., X. Conclusion and directions. Marriage, in the ultimate context, is not defined merely by the elements which delineate some of its attributes and the differing importance to them, depending on times, such as permanence of a sexual partner; procreation and raising of children; stability to family; and recognition in the wider society. Some, or most of these elements may be absent in many relationships: there may be no procreative possibility due to choice, or otherwise; some marriages may have no wider context, such as absence of the larger family circle, due to alienation or estrangement; there may be no matrimonial home because spouses are located in different places; some marriages may be (by choice or otherwise) bereft of physical or sexual content. Yet, these marriages might be as successful, as fulfilling and complete as any other. The reason, in this author’s opinion, is that at its core marriage has significant companionship, friendship, care and spiritual understanding—a oneness—which transcends all other contents and contexts. Thus, home is not a physical structure; it is rather the space where the two individuals exist, caring, breathing and thinking, living for each other. This is how traditionally it has been understood., This feeling need not be unique to marriage; and in fact has come to be enjoyed by many without the cover of it (for example, those who are simply in committed cohabitation relationships). While many others may only be able to experience such a feeling and way of life if it were to have legitimacy in society, akin to marriage. That law has the potential to play such a legitimising role cannot be overstated. The feeling of exclusion that comes with this status quo is undoubtedly one which furthers the feeling of exclusion on a daily basis in society for members of the queer community. However, having concluded that there exists no fundamental right to marry or a right to claim a status for the relationship through the medium of a law and acknowledging the limitations on this Court in moulding relief, this Court must exercise restraint; it cannot enjoin a duty or obligation on the State to create a framework for civil union or registered partnership, or marriage, or abiding co‑habitational relationship. Yet, it would be appropriate to note that everyone enjoys the right to choice, dignity, non‑discrimination and privacy. In a responsive and representative democracy which our country prides itself on being, such right to exercise choices should be given some status and shape. Of course, what that should be cannot be dictated by courts. At the same time, prolonged inactivity by legislatures and governments can result in injustices. Therefore, action in this regard would go a long way in alleviating this feeling of exclusion that undoubtedly persists in the minds and experiences of this community., The resultant adverse impact suffered by the petitioners in relation to earned benefits, as elaborated in Part VI, solely because of the State’s choice to not recognise their social union or relationship, is one which results in their discrimination. This discriminatory impact cannot be ignored by the State; the State has a legitimate interest necessitating action.
id_851	20	The form of action whether it will be by enacting a new umbrella legislation, amendments to existing statutes, rules, and regulations that as of now disentitle a same‑sex partner from benefits accruing to a spouse (or family as defined in the heteronormative sense) are policy decisions left to the realm of the legislature and executive. However, the recognition that their non‑inclusion in a legal framework which entitles them, and is a prerequisite eligibility criteria for myriad earned and accrued benefits, privileges, and opportunities has harsh and unjust discriminatory consequences, amounting to discrimination violating their fundamental right under Article 15 is the Supreme Court of India's obligation, falling within its remit. The State has to take suitable remedial action to mitigate the discriminatory impact experienced by the members of the queer community, in whatever form it deems fit after undertaking due and necessary consultation from all parties, especially all state governments and union territories, since their regulations and schemes too would have to be similarly examined and addressed., The Supreme Court of India hereby summarizes its conclusions and directions as follows: There is no unqualified right to marriage except that recognised by statute including space left by custom. An entitlement to legal recognition of the right to union akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law. Consequently, the Court cannot enjoin or direct the creation of such regulatory framework resulting in legal status. The finding should not be read as to preclude queer persons from celebrating their commitment to each other in whichever way they wish within the social realm. Previous judgments of the Supreme Court of India have established that queer and LGBTQ+ couples have the right to union or relationship under Article 21, be it mental, emotional or sexual, flowing from the right to privacy, right to choice, and autonomy; however, this does not extend to a right to claim entitlement to any legal status for the said union or relationship. The challenge to the Special Marriage Act on the ground of under‑classification is not made out, and the petitioners’ prayer to read various provisions in a gender‑neutral manner so as to enable same‑sex marriage is unsustainable. Equality and non‑discrimination are basic foundational rights. The indirect discriminatory impacts in relation to earned or compensatory benefits, or social welfare entitlements for which marital status is a relevant eligibility factor, for queer couples who in their exercise of choice form relationships, have to be suitably redressed and removed by the State. These measures need to be taken with expedition because inaction will result in injustice and unfairness with regard to the enjoyment of such benefits available to all citizens who are entitled and covered by such laws, regulations or schemes, for instance those relating to employment benefits such as provident fund, gratuity, family pension, employee state insurance, medical insurance, and material entitlements unconnected with matrimonial matters but resulting in adverse impact upon queer couples. As held earlier, the Supreme Court of India cannot within the judicial framework engage in this complex task; the State has to study the impact of these policies and entitlements. Consistent with the statement made before the Supreme Court of India during the course of proceedings on 03.05.2023, the Union shall set up a high‑powered committee chaired by the Union Cabinet Secretary to undertake a comprehensive examination of all relevant factors, especially those outlined above, taking into account the views of all states and union territories and the concerned representatives of all stakeholders. The discussion on discriminatory impacts is in the context of the effects of the existing regimes on queer couples. While a heterosexual couple’s right to live together is not contested, the logic of the discriminatory impact faced by queer couples cohabiting together would definitionally not apply to them. Transgender persons in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions. Regulation 5(3) of the Central Adoption Resource Authority Regulations cannot be held void on the grounds urged. At the same time, the Court is of the considered opinion that the Central Adoption Resource Authority and the Central Government should appropriately consider the realities of de facto families, where single individuals are permitted to adopt and thereafter start living in a non‑matrimonial relationship. In an unforeseen eventuality, the adopted child could face exclusion from the benefits otherwise available to adopted children of married couples; this aspect needs further consideration, for which the Court is not the appropriate forum. Furthermore, the State shall ensure, consistent with the previous judgments of the Supreme Court of India in K.S. Puttaswamy, Navtej Singh Johar, Shakti Vahini and Shafin Jahan, that the choice exercised by queer and LGBTQ+ couples to cohabit is not interfered with and they do not face any threat of violence or coercion. All necessary steps and measures in this regard shall be taken. The respondents shall take suitable steps to ensure that queer couples and transgender persons are not subjected to any involuntary medical or surgical treatment. The above directions in relation to transgender persons are to be read as part of and not in any manner whittling down the directions in National Legal Services Authority so far as they apply to transgender persons. The Supreme Court of India is alive to the feelings of being left out experienced by the queer community; however, addressing their concerns would require a comprehensive study of its implications involving a multidisciplinary approach and polycentric resolution, for which the Court is not an appropriate forum to provide suitable remedies., The Supreme Court of India has the benefit of the final draft by the learned Chief Justice, which contains Section E responses to the opinion of the majority as well. Similarly, we have the benefit of perusing the separate opinion of Justice Sanjay Kishan Kaul. While it would not be necessary to deal pointedly with the responses of the learned brothers, certain broad aspects are addressed in the following paragraphs to clear the air or dispel any misunderstanding., The learned Chief Justice in his response seeks to highlight that the Supreme Court of India has in the past exercised its powers under Article 32 in respect of enforcement of various fundamental rights and cited certain precedents. A close look at each of them would reveal that in almost all cases, the Court enforced facets of personal liberty, or an aspect that was the subject of legislation. The allusion to cases dealing with subjects, particularly incarceration of persons with mental disabilities (Sheela Barse), the right to speedy trial (State of Punjab v. Ajaib Singh), legal aid (Manubhai Pragji Vashi) etc., are directly concerned with personal liberty. The reference to cases dealing with clean environment is also a facet of Article 21, and there are enacted laws in the field of environment protection. The allusion to the directions in PUCL v. Union of India is pertinent; in that judgment, the Court issued a series of directions to the State, operationalising existing government schemes and issuing consequential directions to mitigate large‑scale loss of grains by directing that they be distributed into the Public Distribution System. The other decision, State of Himachal Pradesh v. Umed Ram Sharma, was a case where the High Court directed speedy implementation and construction of a road which had been sanctioned by the State but left incomplete. It was held that the direction was not to supervise the action but only to apprise the State of the inaction to bring about a sense of urgency. The Court also observed that it is primarily within the domain of the executive to determine the urgency and manner of priorities of any law. This Court, by its judgment, even observed that there was nothing wrong in such directions, since a sanction for the road had been obtained but there was tardy implementation of the same., That certain fundamental rights have positive content, or obligation, is not disputed. In paragraph 57 this has been elaborated; the exception was instead taken to the approach suggested by the learned Chief Justice, of tracing the right to union from a conjoint reading of multiple Articles (clauses of Article 19, Article 25 and Article 21), as necessitating the creation of a legal status to the relationship and enunciation of a bouquet of entitlements flowing from this. With respect, such a direction is in the nature of creating a legal status. Further, the discussion on the absence of law, and limited extent of positive rights under Article 19 and Article 25, was in fact to insist that rather than ordering liberties and enumerating every possible right or the way in which it is to be enjoyed, the content of fundamental rights is that they take up all the space until restricted which can be tested on the ground of its reasonableness, as per the limitations in Part III. This in no manner takes away from the previous jurisprudence of this Court where positive obligation under Article 21 has been expounded to locate several obligations upon the State., The Supreme Court of India's observations with respect to the learned Chief Justice's reasoning centred around the enunciation of the bouquet of rights emanating from various provisions other than Article 21, and locating an obligation, has to be seen in the backdrop of the unanimous view of this Court that the fundamental right to marry is not found within the Constitution. Therefore, it is our considered opinion that to create an overarching obligation upon the State to facilitate through policies the fuller enjoyment of rights under Article 19 and Article 25 is not rooted in any past decision or jurisprudence. That queer couples have the right to exercise their choice, cohabit and live without disturbance is incontestable. In the same vein, that they are owed protection against any threat or coercion to their life is a positive obligation that binds the State as a natural corollary of their right under Article 21., What is apparent, however, from our judicial differences is that a certain question of fair significance arises: whether the absence of law or a regulatory framework, or the failure of the State to enact law, amounts to discrimination that is protected against under Article 15. With respect, this was perhaps neither argued nor answered by us; our opinion is limited to testing the provisions of the Special Marriage Act for violation of fundamental rights and noticing that there are various cracks through which the queer community slips through in other neutral laws, policies and frameworks, due to the manner in which they privilege marital or spousal status, access to which is not enabled under existing law. Article 15(1) now can be understood as permitting a classification for the purpose of fashioning policies. Can the State's omission to create a classification, and further, its absence of a policy for a distinct group, which in the Court's opinion deserves favourable treatment, amount to violation of Article 15? There is no known jurisprudence or case law pointing to the absence of law being considered as discrimination as understood under Article 15., The learned Chief Justice has dealt in some detail with adoption. The underlying premise of his comments seeks to highlight that the existing legal framework affords protection in the event of an unforeseen eventuality like abandonment or sudden death of one partner. It is incontestable that Section 63 of the Juvenile Justice Act provides legal status to the child in relation to their adoptive parent(s). However, that per se is not adequate to address all concerns relating to the child. There would be difficulties faced by children in claiming entitlements such as maintenance in the absence of a general law. The example given by the learned Chief Justice illustrates this: benefit under the Hindu Adoption and Maintenance Act, which is available only to Hindus but accommodates both genders, unlike other laws. A suggestion of Section 125 of the Criminal Procedure Code would give rise to the same set of difficulties as the earlier discussion on the Special Marriage Act. In other words, to obviate the gendered language, an interpretive exercise of the kind ruled out for the interpretation of the Special Marriage Act would be necessary. It is for these reasons that we highlighted the need for the State to consider all aspects. This Court would reiterate that there is no basis for interpreting the term “couple” under Section 57(2) of the Juvenile Justice Act as including both married and unmarried couples, given the use of the word “spouse” in the very same provision. It is pertinent to highlight that Section 2(61) of the Juvenile Justice Act prescribes that expressions not defined would have the same meaning as in other enactments., As far as the learned Chief Justice's comment with respect to this Court not reading down marital or striking down Regulation 5(3) is concerned, the earlier discussion in Part VIII clarified that there was a conscious legislative policy while highlighting the interpretation of the term spouse. At the same time the Court recognised the disparate and even discriminatory impact on children of individuals who formed de facto families with their unmarried partner. In our opinion, striking down the term “marital” under Regulation 5(3) would likely have unintended consequences, which cannot be comprehended by the Court as it involves policy considerations. This is the reason for desisting from invalidating the provision but leaving it to the State to take measures to remedy these impacts., Lastly, a small note of caution is expressed in relation to a few conclusions of Justice Sanjay Kishan Kaul. There can hardly be any dispute of the positive outcomes or the need for a broadly applicable non‑discriminatory law as elaborated by Justice Kaul. However, the wisdom or unwisdom of such a law, the elements that go into its making are matters that are not before this Court to comment on. Nor can we anticipate what its content would be. We are of the opinion that it is not possible to hold that a positive obligation to enact such a law exists. We therefore expressly place our disagreement with the reasoning of Justice Kaul on this aspect., The known canons of interpretation require the courts to take any statute and interpret its provisions keeping in mind their contextual setting. Likewise, the meaning of words has to be understood in the totality of provisions of the statute. Thus, wherever a word is used, the overall context of its location plays a role; sometimes its meaning changes wherever the context is different. We have hence held that the expressions in the Special Marriage Act – wife and husband or male and female – cannot have a uniform meaning, because there is an intended gendered binary in the specific enacting provisions. As far as inter se statutes are concerned, the inexpedience of a singular, gender‑neutral meaning is not a possible outcome, as explained previously. Therefore, it is our considered view that there is no known interpretive tool enabling an exercise inter se and in between statutes, as held by Justice Kaul., Undoubtedly, constitutional values endure; they are not immutable. To the extent it is possible, statutes may be interpreted in tune with such evolving values. Yet statutes are neither ephemeral nor their terms transient, and are meant to confer rights, duties, and obligations and sometimes impose burdens and sanctions. This means that their contents have to be clear and capable of easy interpretation. The text of the statute therefore must be given meaning and any interpretive exercise must therefore begin with the text of the enacted law., The gaps and inadequacies outlined earlier by this judgment result in wide‑reaching impacts and concern crucial aspects of everyday life. Therefore, the respondents and all institutions should take note of the lived realities of persons across the range of gender identities and suitably prioritize their needs of social acceptance. There is also need for a move towards greater acceptance of personal choices and preferences, and an equal marking of our differences in all their varied hues., In various countries that have since legislated on same‑sex marriage, the precursor to this regime was often the civil union route. Known by many names, the concept of civil union enjoys varying rights and entitlements in different jurisdictions. This was a legal relationship for unmarried, yet committed couples who cohabited together and sought certain rights and the protection of law. The rights that flowed were not identical in scope or extent to those arising from marriage, but it was still an avenue to provide certain limited but enforceable rights. In the United States, for instance this was rolled out by many state governments when same‑sex marriage was not legalised by the federal government. What began as an option for same‑sex couples to attain financial and legal partnership (tax benefits, property rights, child adoption in some jurisdictions, inheritance, etc.) now remains on the statute books for some states, allowing couples who do not want to enter the societal pressures or institution of marriage to protect their rights. However, many advocates for LGBTQ rights have strongly opposed civil unions in other jurisdictions as offering a second‑class status in the absence of the marriage route. Other alternatives available in some of these countries, the suitability of which have also been subject to criticism, include domestic partnerships, cohabitation agreements, common law marriages, etc., The Supreme Court of India would be sorely mistaken if we presume what the queer community in all its diversity seeks and lay it out in a formulaic framework. Many may welcome civil unions as a pragmatic first step, while some may find it to be yet another inequitable solution to the feeling of exclusion that persists in society against this community, and one which simply repackages the stigmatization felt. Many may desire marriage as understood in the traditional sense to escape their societal realities as a form of financial and social emancipation from opposing natal families, or diametrically opposite to assimilate and gain more social acceptance in their natal families. Yet, others may, as a result of their experience, reject altogether the institution of marriage and all the social obligations and associations that come with it, but still want legal protection of their rights. Certainly, what the former group may want does not hamper or hinder the latter in any manner for it is a choice that they seek. That the State should facilitate this choice for those who wish to exercise it is an outcome that the community may agree upon. Yet, the modalities of how it should play out, what it will entail, etc., are facets that the legislature and executive need to exercise their power in furtherance of. Whether this will happen through proactive action of the State itself, or as a result of sustained public mobilisation, is a reality that will play out on India’s democratic stage, and something only time can tell., The State may choose from a number of policy outcomes; it may make all marriage and family related laws gender neutral, or it may create a separate Special Marriage Act‑like statute in gender neutral terms to give the queer community an avenue for marriage, it may pass an Act creating civil unions, or a domestic partnership legislation, among many other alternatives. Another consequence may be that rather than the Union Government, the State legislatures may take action and enact law or frameworks in the absence of a central law. What is certain, however, is that in questions of such polycentric nature, whether social or political, the Court must exercise restraint and defer to the wisdom of the other branches of the State, which can undertake wide‑scale public consultation, consensus building and reflect the will of the people, and be in their best interest. If as a result of this, a law is enacted that undermines or violates the constitutionally protected rights of an individual or a group, no matter how miniscule, their right to seek redressal from this Court is guaranteed under Article 166. The petitioners’ desire for social acceptability, in the manner that has been historically known through the social recognition that marriage affords and the lack of which causes them feeling of exclusion and hurt, is one that, as individuals, especially those donning the robes of justice, we can certainly have deep empathy with. However, we are deeply conscious that no matter how much we empathise with the outcome sought, the means to arriving at such a destination must also be legally sound and keep intact the grand architecture of our constitutional scheme. For if we throw caution to the wind, we stand the risk of paving the way to untold consequences that we could not have contemplated. While moulding relief, as a court we must be cognizant that despite being empowered to see the capabilities of the law in its grand and majestic formulation, we must not be led aground because we are blinded by its glow., The petitions are disposed of in the above terms. Pending applications, if any, are disposed of. Writ Petition (Civil) No. 1011 of 2022 Supriyo @ Supriya Chakraborty & Anr. versus Union of India. Writ Petition (Civil) No. 1020 of 2022, Writ Petition (Civil) No. 1105 of 2022, Writ Petition (Civil) No. 1141 of 2022, Writ Petition (Civil) No. 1142 of 2022, Writ Petition (Civil) No. 1150 of 2022, Writ Petition (Civil) No. 93 of 2023, Writ Petition (Civil) No. 159 of 2023, Writ Petition (Civil) No. 129 of 2023, Writ Petition (Civil) No. 260 of 2023, Transferred Case (Civil) No. 05 of 2023, Transferred Case (Civil) No. 06 of 2023, Writ Petition (Civil) No. 319 of 2023, Transferred Case (Civil) No. 07 of 2023, Transferred Case (Civil) No. 08 of 2023, Transferred Case (Civil) No. 10 of 2023, Transferred Case (Civil) No. 09 of 2023, Transferred Case (Civil) No. 11 of 2023, Transferred Case (Civil) No. 12 of 2023, Transferred Case (Civil) No. 13 of 2023, Writ Petition (Civil) No. 478 of 2023., I am conscious of the ordeals that arise from a multiplicity of judicial opinions in cases involving constitutional questions. Yet, I consider it worthwhile to pen the present opinion, given the significant nature of the questions involved. Polyvocality in the exercise of the adjudicatory function may not necessarily be viewed with discomfort; if complemented by judicial discipline, it is truly reflective of the diversity of judicial thought., The constitutional questions for which we seek answers in the present set of petitions are two‑fold: (a) the status of the right to marry for LGBTQ+ couples and (b) depending upon the answer to the first, the remedy that must ensue. With respect to the first, the petitioners assert that not only do they have the right to marry under the Constitution, but also that through an interpretative process such a right must be read into the existing legislative framework governing marriages. The respondents oppose both the foundations upon which the petitioners seek to establish their right, and at the same time they remind us of the judicial limitations on the issuance of positive directions for enforcement of such a right., I had the privilege of traversing through the opinions of the learned Chief Justice, Justice Sanjay Kishan Kaul and Justice Ravindra Bhat. I am afraid I am unable to agree with the opinions of the Chief Justice and Justice Kaul. I am in complete agreement with the reasoning given and conclusions arrived at by Justice Bhat. I will supplement his findings with some of my own reasons. Since the broad arguments and submissions have been succinctly captured in the opinion of the learned Chief Justice, I find no reason to separately enlist them here., At the outset, I will set out my conclusions, which are also in complete consonance with that of Justice Bhat in his opinion. The question of marriage equality of same‑sex/LGBTQ+ couples did not arise for consideration in any of the previous decisions of this Court, including the decision in Navtej Singh Johar & Ors. v. Union of India and NALSA v. Union of India. Consequently, there cannot be a binding precedent on this count. The rights of LGBTQ+ persons that have been hitherto recognised by this Court are the right to gender identity, sexual orientation, the right to choose a partner, cohabit and enjoy physical and mental intimacy. In the exercise of these rights, they have full freedom from physical threat and from coercive action, and the State is bound to afford them full protection of the law in case these rights are in peril. There is no unqualified right to marriage guaranteed by the Constitution that qualifies it as a fundamental freedom. The right to marriage is a statutory right, and to the extent it is demonstrable, a right flowing from a legally enforceable customary practice. In the exercise of such a right, statutory or customary, the State is bound to extend the protection of law to individuals so that they can exercise their choices without fear and coercion. This, in my opinion, is the real import of the decisions in Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India. The constitutional challenge to the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969 must fail, for the reasons indicated in the opinion of Justice Bhat. Similarly, Justice Bhat also rightly finds the semantic impossibilities of gender‑neutral constructions of the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969.
id_851	21	I find that a right to a civil union or an abiding cohabitational relationship conferring a legally enforceable status cannot be situated within Part III of the Constitution of India. On this count too, I agree with the conclusions of Justice Bhat, and supplement them with my own reasons., I agree with the reasoning and the conclusion of Justice Bhat with respect to the constitutionality of Regulation 5(3) of the CARA Regulations, 2020., Marriage as a social institution and the status of the right to marry. There cannot be any quarrel, in my opinion, that marriage is a social institution, and that in our country it is conditioned by culture, religion, customs and usages. It is a sacrament in some communities, a contract in some others. State regulation in the form of codification has often reflected the customary and religious moorings of the institution of marriage. An exercise to identify the purpose of marriage or to find its true character is a pursuit that is as diverse and mystic as the purpose of human existence; and therefore is not suited for judicial navigation. But that does not render the institution meaningless or abstract for those who in their own way understand and practice it., In India, the multiverse of marriage as a social institution is not legally regulated by a singular gravitational field. Until the colonial exercise of codification of regulations governing marriage and family commenced, the rules governing marriage and family were largely customary, often rooted in religious practice. This exercise of codification, not always accurate and many times exclusionary, was the product of the colonial desire to mould and reimagine our social institutions. However, what is undeniable is that, impelled by our own social reformers, the colonial codification exercise produced some reformatory legislative instruments, ushering in much‑needed changes to undo systemic inequalities. The constitutional project that we committed ourselves to in the year 1950 sought to recraft some of our social institutions and within the first half‑decade of the adoption of the Constitution, our indigenous codification and reformation of personal laws regulating marriage and family was underway., Even when our own constitutional State attempted codification and reform, it left room for customary practices to co‑exist, sometimes providing legislative heft to such customary practices. Section 5(iv) of the Hindu Marriage Act, 1955, section 5(v) of the Hindu Marriage Act, 1955, section 77, and section 29(2) of the Hindu Marriage Act, 1955 are illustrative in this regard. Similarly, the Special Marriage Act, 1954 in the provisos to sections 4(d) and section 15(e) saves customary practices, without which the marriage would have been otherwise null and void. The same is the case with the proviso to section 5 of the Special Marriage Act., Conditions for a Hindu marriage: A marriage may be solemnized between any two Hindus if the following conditions are fulfilled, namely (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits a marriage between the two; (v) the parties are not sapindas of each other unless the custom or usage governing each of them permits a marriage between the two. Ceremonies for a Hindu marriage: (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the Saptapadi (the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. Savings: (2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act. Conditions relating to solemnisation of special marriages: Notwithstanding anything contained in any other law for the time being in force relating to the solemnisation of marriages, a marriage between any two persons may be solemnized under this Act if at the time of the marriage the following conditions are fulfilled, namely (d) the parties are not within the degrees of prohibited relationship, provided that where a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnized notwithstanding that they are within the degrees of prohibited relationship. Registration of marriages celebrated in other forms: Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872, or under this Act, may be registered by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely (e) the parties are not within the degrees of prohibited relationship, provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits a marriage between the two., Legislative accommodation of customary practices is also reflected in section 5 of the Anand Marriage Act. The legal regulation of the institution of marriage as it exists today involves regulation of the solemnisation or ceremony of marriage, the choice of the partner, the number of partners, the qualifying age of marriage despite having attained majority, conduct within the marriage and conditions for exit from the marriage. As to ceremonies and solemnisation, section 2 of the Anand Marriage Act, 1909, section 3(b) of the Parsi Marriage and Divorce Act, 1936, sections 10, 11 and 25 of the Indian Christian Marriage Act, 1872 and section 7 of the Hindu Marriage Act are relevant., Conditions relating to solemnisation of foreign marriages: A marriage between parties, one of whom at least is a citizen of India, may be solemnised under this Act by or before a Marriage Officer in a foreign country if, at the time of the marriage, the following conditions are fulfilled, namely (d) the parties are not within the degrees of prohibited relationship, provided that where the personal law or a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnised notwithstanding that they are within the degrees of prohibited relationship. Non‑validation of marriages within prohibited degrees: Nothing in this Act shall be deemed to validate any marriage between persons who are related to each other in any degree of consanguinity or affinity which would, according to the customary law of the Sikhs, render a marriage between them illegal. Validity of Anand marriages: All marriages which may be or may have been duly solemnised according to the Sikh marriage ceremony called Anand, commonly known as Anand Karaj, shall be, and shall be deemed to have been with effect from the date of the solemnisation, good and valid in law. Requisites to validity of Parsi marriages: (1) No marriage shall be valid if (b) such marriage is not solemnised according to the Parsi form of ceremony called Ashirvad by a priest in the presence of two Parsi witnesses other than such priest., Section 10 of the Act reads: 10. Time for solemnising marriage. Every marriage under this Act shall be solemnised between the hours of six in the morning and seven in the evening. Section 11 reads: 11. Place for solemnising marriage. No Clergyman of the Church of England shall solemnise a marriage in any place other than a church where worship is generally held according to the forms of the Church of England, unless there is no such church within five miles distance by the shortest road from such place, or unless he has received a special licence authorising him to do so under the hand and seal of the Anglican Bishop of the Diocese or his Commissary. Section 25 reads: 25. Solemnisation of marriage. After the issue of the certificate by the Minister, marriage may be solemnised between the persons therein described according to such form or ceremony as the Minister thinks fit to adopt, provided that the marriage be solemnised in the presence of at least two witnesses besides the Minister., The Marriage Act, 1955 explicitly recognises the central role that religious ceremonies play in the solemnisation of marriages. The Muslim Personal Law (Shariat) Application Act, 1937 clearly saves the application of personal law to marriages, including the nature of the ceremony. Viewed in this perspective, the diverse religious practices involved in solemnising marriages are undeniable., The choice of the partner is not absolute and is subject to two‑dimensional regulations: (i) minimum age of partners and (ii) the exclusions as to prohibited degrees. There is a differential minimum age prescription for male and female partners in most legislations. Thus males, who have otherwise attained the age of majority, cannot marry under these enactments, even though they exercise many other statutory and constitutional rights when they attain the age of eighteen., The concept of prohibited degrees of relationship is statutorily engraved in section 5 of the Anand Marriage Act, 1909, section 3(a) of the Parsi Marriage and Divorce Act, 1936, section 5(iv) and (v) of the Hindu Marriage Act, 1955 and sections 4(d) and 15(e) of the Special Marriage Act, 1954. Persons who have attained the requisite age of marriage under these enactments have their choice and consenting capacities restricted to this extent., Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 reads: 2. Application of Personal Law to Muslims. Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments), the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)., Requisites to validity of Parsi marriages: No marriage shall be valid if the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in Schedule I., In my considered opinion, the institutional space of marriage is conditioned and occupied synchronously by legislative interventions, customary practices, and religious beliefs. The extant legislative accommodation of customary and religious practices is not gratuitous and is to some extent conditioned by the right to religion and the right to culture, constitutionally sanctified in Articles 25 and 29 of the Constitution of India. This synchronously occupied institutional space of marriage is a product of our social and constitutional realities, and therefore, in my opinion, comparative judicial perspectives offer little assistance. Given this nature of marriage as an institution, the right to choose a spouse and the right of a consenting couple to be recognised within the institution of marriage cannot be said to be unrestricted., The learned Chief Justice has opined that marriage may not attain the social and legal significance it currently has if the State had not recognised and regulated it through law. It is further opined that marriage has attained significance because of the benefits which are realised through it. In this context, it is necessary to recount that until the post‑constitutional codification of laws relating to marriage and divorce, there was no significant State intervention on customary laws relating to marriage. Even today, much of the Mohammedan law of marriage is governed by religious texts and customs and there is hardly any State intervention. The Sixth Schedule areas under the Constitution are largely governed by customary laws of marriage. That the State has chosen to regulate the institutional space of marriage and even if such regulation occupies the space in toto, by itself does not imply that marriage attained significance due to State recognition., I must hasten to add that the aforesaid recollection of legislative illustrations was with a view to demonstrate the cultural relativism involved in the idea of marriage. No singular right can inform unimpeded entry to and unregulated exit from the institution of marriage; for that would disassociate the institution of marriage from its social context. The claim of the right to marry, de‑hors the existing statutory framework, is nothing but a claim to create a legally and socially enforceable status. It is not a claim against criminalisation of sexual conduct, which was the issue in Navtej (supra). It is nothing but a prayer of mandamus to create the necessary legislative and policy space for recognition of relationships as marriages in the eyes of law. The prayer to recognise such a right is not one that expects the State to desist from pursuing an act, but one which will place positive obligations upon the State to erect new laws, or at least amend existing laws. I say laws, because marriage laws do not stand in isolation; they interact in multifarious ways with succession, inheritance and adoption laws, to name a few. The content of the right claimed by the petitioners is such that it clearly places positive legislative obligations on the State, and therefore cannot be acceded to. That there cannot be a mandamus to amend or enact laws is a deeply entrenched constitutional aphorism which need not be burdened by quotational jurisprudence. We are afraid that the creation of social institutions and consequent re‑ordering of societal relationships are polycentric decisions, which have multiplicity of variable and interlocking factors, decisions on each one of which presuppose a decision on all others, decisions that cannot be rendered by one stroke of the judicial gavel., Indian Ex‑Service Movement v. Union of India, (2022) 7 Supreme Court Cases 323, 68., Re: The impermissibility of the creation of a right to a union or an abiding cohabitational relationship., Having concluded that there exists no unqualified right to marry, in the ordinary course no occasion would have arisen for any further deliberation. However, as the learned Chief Justice, in his opinion, has arrived at a conclusion that there exists a constitutional right to a union or an abiding cohabitational relationship, it is necessary for me to express my opinion on this new construction., The learned Chief Justice locates components of this right to union or an abiding cohabitational relationship under Article 19(1)(a), Article 19(1)(c), Article 19(1)(e), Article 21 and Article 25 of the Constitution. In my opinion, it would not be constitutionally permissible to identify a right to a union or an abiding cohabitational relationship mirroring the institution of marriage. The learned Chief Justice identifies tangible and intangible benefits (bouquet of entitlements) that arise from state recognition and regulation of marriages. The Chief Justice further opines that the right to marriage is not fundamental. However, it is these very tangible and intangible benefits, the denial of which, according to the learned Chief Justice, must inform the reading of a constitutional right to an abiding cohabitational union. In other words, the benefits of marriage, however fundamental to a fulfilling life, do not make marriage itself a fundamental right, but they render the right to an abiding cohabitational union fundamental. I find it difficult to reconcile these., The learned Chief Justice opines that it is insufficient if persons have the ability and freedom to form relationships unregulated by the State. For the full enjoyment of such relationships, it is necessary that the State accord recognition to such relationships. Thus, the right to enter into a union includes the right to associate with a partner of one's choice, according recognition to the association, and ensuring that there is no denial of access to basic goods and services is crucial to achieve the goal of self‑development. The opinion of the Chief Justice thereafter classifies the status of two persons in a relationship as: (a) relationships which do not have legal consequences, (b) unions which have legal consequences, and (c) marriages. In my considered opinion, positively mandating the State to grant recognition or legal status to unions from which benefits will flow violates the doctrine of separation of powers. The framing of a positive right and the positive entitlements which flow therefrom essentially require the State to regulate such unions and benefits. In my opinion, the direction in effect is to amend existing statutory frameworks, if not to legislate afresh., Additionally, the opinion of the learned Chief Justice situates the right to choice of a partner and the right to legal recognition of an abiding cohabitational relationship within Article 25 of the Constitution of India. Emphasis is placed on the term freedom of conscience, which is placed alongside the right to freely profess, practice and propagate religion. The opinion situates in this freedom of conscience the right not only to judge the moral quality of one's own action but also to act upon it. If that were permissible under Article 25, then the textual enumeration of freedoms in Article 19 would become redundant, since these freedoms can be claimed to be actions on the basis of one's own moral judgment. I find it difficult to agree with such a reading of Article 25., I am not oblivious to the concerns of LGBTQ+ partners with respect to denial of access to certain benefits and privileges that are otherwise available only to married couples. The general statutory scheme for the flow of benefits, whether gratuitous or earned, property or compensation, leave or compassionate appointment, proceeds on a certain definitional understanding of partner, dependent, caregiver, and family. In that definitional understanding, it is no doubt true that certain classes of individuals—same‑sex partners, live‑in relationships and non‑intimate caregivers including siblings—are left out. The impact of some of these definitions is iniquitous and in some cases discriminatory. The policy considerations and legislative frameworks underlying these definitional contexts are too diverse to be captured and evaluated within a singular judicial proceeding. I am of the firm belief that a review of the impact of the legislative framework on the flow of such benefits requires a deliberative and consultative exercise, which the legislature and executive are constitutionally suited and tasked to undertake., For the reasons stated above, and in view of the preceding paragraph, the writ petitions are disposed of.
id_852	0	Alokam Sudhakar Babu, son of Alokam Krishnaiah, aged 45 years, Agriculturist and Social Worker, residing at House No. 2-161, Vaikuntapuram Village, Guntur District, Andhra Pradesh 522 020, is the petitioner. The State of Andhra Pradesh, represented by its Chief Secretary to Government, Secretariat, Amaravati/Velagapudi, Guntur District, and others, are the respondents., Gist: Head Note: Cases referred: 4 AIR 1991 Ker 25. The questions are: (a) Whether reporters of local newspapers may be allowed to see the judgments? (b) Whether copies of judgments may be marked to law reporters/journals? (c) Whether the Lordship wishes to see the fair copy of the judgment?, This writ petition has been filed under Article 226 of the Constitution of India, praying to issue a writ, order or direction in the nature of quo-warranto against respondents numbered 5 to 9, requiring them to show under what authority they are holding their respective posts and restraining them from continuing in those posts. The petition also seeks a direction to the competent authority to appoint other competent and eligible persons under the constitution who uphold the law and constitutional provisions, and to pass such other orders as the Hon'ble Andhra Pradesh High Court deems fit and proper., As no relief was sought against respondent No.1, the Andhra Pradesh High Court held that impleading His Excellency the Governor of the State of Andhra Pradesh as respondent No.1 was unwarranted. By invoking Rule 16(a) of the Andhra Pradesh High Court Writ Proceeding Rules, 1997, the Court, suo motu, deleted the Governor from the array of respondents by order dated 19-10-2020., The affidavit filed with the writ petition states that the petitioner is a resident of Vaikuntapuram Village, Amaravati Mandal, where the Lord Sri Venkateswara Swamy Temple has existed for centuries and in whose worship the petitioner has had faith since childhood as a Hindu. It also notes that Lord Sri Venkateswara Swamy was born at the seven hills now known as the Tirumala Temples, and that many enactments have been made regarding the maintenance of the Tirumala Tirupati Devasthanams, a great temple in India and Asia. The State of Andhra Pradesh enacted the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter ‘the Act’) in exercise of its legislative power under the Constitution. Rule 136, made under Section 97 read with Section 153 of the Act, deals with admission of non-Hindus into Tirumala Tirupati Devasthanams temples. The fifth respondent, who belongs to the Christian religion, entered the temples without furnishing the declaration required under Rule 136 and therefore is not entitled to continue in his present post. Respondents 6 and 7, who are Cabinet Ministers of the State, and respondent 8, the Chairman of the Tirumala Tirupati Devasthanams Board, by stating that there is no need for such an undertaking by the fifth respondent, and respondent 9, the Executive Officer of the Tirumala Tirupati Devasthanams, for failing to strictly implement the Rules, are likewise not entitled to continue to hold their posts by virtue of constitutional provisions., The writ petition was listed for admission on 19-10-2020. On that day, the learned Advocate General representing the State submitted that the writ petition was not maintainable and requested the Court to decide the issue of maintainability before proceeding to the merits. After considering the affidavit and material placed on record, the Court found merit in the Advocate General’s contention and posted the matter for hearing on 22-10-2020 to consider the issue of maintainability based on any substantial evidence the petitioner might produce., The Court heard Sri P. V. Krishnaiah, learned counsel for the petitioner, and the learned Advocate General for the State., Counsel for the petitioner submitted that the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987, enacted by the State, confers powers and functions on the Tirumala Tirupati Devasthanams Trust Board under Section 97. Section 153 empowers the State Government to make rules, which have been published in the official gazette as required by Sub-section (1) of Section 153. Chapter XVIII of those rules deals with admission of non-Hindus into the Tirumala Tirupati Devasthanams Temple, specifically Rule 136., The counsel contended that any Hindu may enter the temple without restriction, whereas persons of religions other than Hinduism may also be allowed darshan provided they submit a declaration in the format prescribed under Rule 136 and obtain permission. The condition imposed on non-Hindus is a reasonable restriction to maintain the sanctity of the century-old temple. Once the State frames the rules under the Act, those rules have legal force and must be scrupulously followed by all, including the authorities maintaining the temple and the State Government, to ensure that the provisions are implemented without deviation or discrimination., The counsel submitted that respondent No.5, who is the Chief Minister of Andhra Pradesh and belongs to the Christian religion, when visiting the Tirumala Tirupati Devasthanams after assuming office, created controversy and affected the feelings and sentiments of Hindus. By violating the law that he himself is supposed to uphold, he also compelled his Cabinet Ministers and subordinate authorities to violate the law., The counsel complained that on 23-09-2020, respondent No.5, a Christian, visited the temple and received blessings from the temple priests along with his cabinet colleagues (respondents 6 and 7) in the presence of respondents 8 and 9, without presenting the declaration required under Rule 136. This gave the impression that respondent No.5 was not respecting Hindu sentiments. The counsel argued that regardless of the high office held, a person who violates the provisions of the law and the Constitution, or allows others to violate them, cannot continue in that post. Accordingly, respondent No.5 has violated Rule 136 made under Section 97 read with Section 153 of the Act, and is not entitled to continue as Chief Minister., The counsel also contended that respondents 6 and 7, the Cabinet Ministers, who have taken oath as per constitutional provisions, and respondent 8, the Chairman of the Tirumala Tirupati Devasthanams Board, made statements that there was no need for the undertaking by respondent 5. Respondent 9, the Executive Officer of the temple, failed to strictly implement the rules, thereby affecting Hindu sentiments. Consequently, respondents 5 to 9 have violated the provisions of the Act and the Constitution and are not entitled to continue in their respective posts., The petitioner further submitted that respondents 6 to 9 wilfully encouraged respondent 5 to violate the law. As office‑holders, they have a responsibility to protect the law and institutions and cannot act against the posts they hold. Therefore, all these respondents are not entitled to hold their posts. The petitioner seeks a writ of quo-warranto against respondents 5 to 9, asserting that they are not competent to hold their respective offices and that the disqualifications listed in Article 191 of the Constitution of India are not applicable to the present case., The Advocate General for the State submitted that the pleadings of the writ petition do not demonstrate any disqualification incurred by respondent 5 as a public servant. A writ of quo-warranto calls upon the incumbent to demonstrate to the Hon'ble Andhra Pradesh High Court the authority by which he holds the post. The pleadings do not show any disqualification under Article 191. Respondent 5 holds public office as Chief Minister. The Advocate General further submitted that the alleged conduct does not fall within the scope of a quo-warranto petition and that the primary ingredient for maintaining such a writ is absent from the pleadings., The relevant constitutional provisions are extracted for appreciation. Article 25 guarantees freedom of conscience and the right to freely profess, practice and propagate religion, subject to public order, morality and health, and to other provisions of the Part. It does not affect the operation of any existing law or prevent the State from making laws regulating or restricting any secular activity associated with religious practice, or providing for social welfare and reform, including opening Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I states that the wearing and carrying of kirpans is included in the profession of the Sikh religion. Explanation II clarifies that references to Hindus include persons professing the Sikh, Jaina or Buddhist religions, and that references to Hindu religious institutions are to be construed accordingly., Article 191 deals with disqualifications for membership of a State Legislative Assembly or Council. A person is disqualified if he holds an office of profit under the Government of India or a State, is of unsound mind, is an undischarged insolvent, is not a citizen of India or has voluntarily acquired foreign citizenship, or is disqualified under any law made by Parliament. The explanation clarifies that a Minister is not deemed to hold an office of profit merely by virtue of his ministerial position. The provision also incorporates disqualifications under the Tenth Schedule., Chapter XVIII of the Rules made under the Act, 1987, deals with admission of non-Hindus into the Tirumala Tirupati Devasthanams temples. Rule 136 provides that the temples are Hindu public temples generally used by the Hindu community, but non-Hindus may be admitted upon furnishing a declaration in the prescribed format stating their faith in Lord Sri Venkateswara Swamy and obtaining permission from the Peishkar or other officer in charge of the temple., The declaration must be presented to the Peishkar, Tirumala Tirupati Devasthanams, or another officer in charge of the temple, who after making suitable enquiries may accord permission. Upon grant of permission, the declarant may be admitted into the temple in the same manner as any other pilgrim., The main contention of the petitioner is that respondent 5, a Christian, is required to submit the declaration under Rule 136 and obtain permission under Rule 137 before entering the Tirumala Tirupati Devasthanams temples. As Chief Minister, he is bound to follow the rules, statutory provisions and constitutional obligations. He entered the temples without the required declaration and permission, thereby intentionally violating the law, and is therefore not entitled to continue as Chief Minister., The Court must examine the meaning of ‘professing a religion’ and who is a Hindu. In the 1965 case Punjabrao v. Dr. D. P. Meshram, the Supreme Court explained that to ‘profess’ a religion means to make a public declaration of belief, which must be known to those interested. A public declaration of having ceased to belong to one religion and having accepted another is taken as professing the other religion., The same view was reiterated by the Supreme Court in S. Rajagopal v. C. M. Armugam while considering the issue of professing a religion., In Sastri Yagnapurushadji and others v. Muldas Bhudardas Vaishya, Chief Justice Gajendragadkar observed that the Hindu religion is difficult to define, does not claim a single prophet, and may be described broadly as a way of life. He noted that Hindu teachings revolted against ritual dominance and were propagated in the languages of the masses., In M. Muraleedharan Nair v. State of Kerala, the Kerala High Court discussed who is a Hindu, noting that while scholarly debate exists, in practical terms idol worship forms the core of prevalent Hindu religion and philosophy., The Supreme Court has described Hindu religion as a way of life based on certain basic concepts, and the term ‘professes’ as making an open declaration of belief., The definition of ‘Christian’ under Section 3 of the Indian Christian Marriage Act, 1872, states that Christians are persons professing the Christian religion, and Native Christians include descendants of Indian natives converted to Christianity. Baptism is the sacrament by which a person is admitted into the Church of Christ and is a sign of the Christian profession., The Court identified the following issues: (a) Whether the petitioner has placed appropriate material to substantiate that respondent 5 is professing the Christian religion; (b) Whether there is substantial material to issue a writ of quo-warranto against respondents 5 to 9; (c) Whether this Court has jurisdiction to issue a writ of quo-warranto and remove a person from the office of Chief Minister or Minister under Article 226 of the Constitution of India., Based on the pleadings and material, Rule 136 of the Rules made under the Act, 1987, categorises the Tirumala Tirupati Devasthanams temples as Hindu public temples generally used by Hindus. Non-Hindus may be admitted upon submission of a declaration in the prescribed format, stating faith in Lord Sri Venkateswara Swamy, and obtaining permission after enquiries. A Hindu may enter without such declaration. The petitioner’s objection is that respondent 5, being a Christian, failed to furnish the declaration and obtain permission, thereby violating the law., The Court observed that, apart from the allegation that respondent 5 is not a Hindu and is a Christian who should have submitted the declaration, no material was placed to prove that he professes the Christian religion. No evidence was adduced to show his belonging to the Christian religion, and therefore the allegations are not entertainable., It must be noted that a writ petition filed under Article 226 is not merely a pleading but also evidence in the form of affidavits, as held by the Supreme Court in Bharat Singh v. State of Haryana. The petitioner must plead and prove facts by evidence annexed to the writ petition; otherwise, the Court will not entertain the point., The petitioner submitted that respondent 5 attends Christian gospel conventions and offers prayers in churches, and therefore should be considered a Christian., The Court held that merely attending Christian gospel conventions, prayers in churches, or having a biblical name, does not make a person a Christian. Recent participation by respondent 5 in prayers at a Gurudwara does not render him a Sikh. Such attendance alone is insufficient to establish professing a religion., The Court noted that officers vested with the power to issue community certificates to Scheduled Castes and Scheduled Tribes sometimes create difficulties for the beneficiaries under similar pretexts., The view of this Court is supported by the observation of the Supreme Court in Kailash Sonkar v. Mayadevi, which is relevant to the present purpose.
id_852	1	Moreover, it is a common feature of many converts to a new religion to believe or have faith in the saints belonging to other religions. For instance, a number of Hindus have faith in the Muslim saints, dargahs, imambadis which become a part of their lives and some Hindus even adopt Muslim names after the saints, but this does not mean that they have discarded the old order and converted to Islam. The issue involved in the present case can be looked at from another angle. In the affidavit, the petitioner submitted that the practice existing in the Tirumala Tirupathi Devasthanams is that the Honourable Chief Minister used to offer Dharmanaralu and Pattu Vastralu during important occasions like Brahmotsavam. It is an admitted fact that, as per the customs and traditions being followed in Tirumala Tirupathi Devasthanams for an immemorial period, as per the procedure prescribed in Kainkarya Patti, on behalf of the Government, Pattu Vastralu have to be presented during Brahmotsavam. The same custom and tradition continued to be in practice for all these years. It is the custom and practice existing in Tirumala Tirupathi Devasthanams temples that the Trust Board of Tirumala Tirupathi Devasthanams temples will invite the Chief Minister of the State to present Pattu Vastralu during the celebrations of Brahmotsavam. It is the tradition prevailing all these years that whoever may be the Chief Minister, he ought to follow that practice. If a person holding the post of Chief Minister enters the Tirumala Tirupathi Devasthanams temples on invitation of the Trust Board to present Pattu Vastralu during Brahmotsavam, and if he is a non‑Hindu, does he have to submit a declaration or not?, The learned counsel for the petitioner argued that Shrimati Indira Gandhi, when she was holding the post of Prime Minister of India, and Doctor A. P. J. Abdul Kalam, when he was holding the post of President of India, submitted declarations required under Rule 136 while entering the Tirumala Tirupathi Devasthanams temples to honour the sentiments of Hindu devotees. This Supreme Court of India can view this issue from a different angle. It has to be considered that Shrimati Indira Gandhi and Doctor A. P. J. Abdul Kalam, though they were holding the posts of Prime Minister of India and President of India respectively, may have entered the Tirumala Tirupathi Devasthanams temples to offer prayers to Lord Sri Venkateswara Swamy and for darshan, but they may not have entered the temples to follow particular rituals as per the traditions and customs in the capacity of Prime Minister of India and President of India respectively., As such, when the person holding the post of Chief Minister of the State entered the Tirumala Tirupathi Devasthanams temples to present Pattu Vastralu during Brahmotsavam as per the procedure provided under Kainkarya Patti, on the invitation of the Trust Board, in the opinion of this Supreme Court of India, he entered the temples in the capacity of the Chief Minister of the State, as a representative of the people of the State, and therefore he need not submit a declaration as provided under Rule 136 of the Rules. It is also made clear that whenever the fifth respondent in his personal capacity intends to enter the Tirumala Tirupathi Devasthanams temples for darshan or to offer prayers to Lord Sri Venkateswara Swamy, he shall submit a declaration as provided under Rule 136 of the Rules if he is a non‑Hindu., On careful consideration of the affidavit filed along with the writ petition and the material placed before this Supreme Court of India by the petitioner, it is clear that the petitioner failed to place any evidence in proof of the allegations made against the fifth respondent. Consequently, we decline to go into the allegations that are not supported by any evidence or proof and cannot grant the relief sought by the petitioner. Thus, for the above‑mentioned reasons, we are of the considered view that no writ of quo warranto is maintainable against the fifth respondent in the absence of any substantial evidence or material to establish that the fifth respondent is a Christian and is professing the Christian religion; consequently, the petitioner is not entitled to the relief sought in the present writ petition and the relief sought against respondents six to nine is also not entertainable. Therefore, this writ petition is not maintainable and is dismissed. There is no order as to costs. As a sequel, miscellaneous petitions, if any, pending in this writ petition shall stand closed., Before parting with this order, we feel it appropriate to reproduce the view expressed by a Division Bench of the Supreme Court of India in the case of Dr. Y. S. Rajasekhar Reddy and others v. Sri Nara Chandrababu Naidu and others, while agreeing with the contention of the learned counsel for the petitioner that the rule of law is the basic structure of the Constitution and that vesting judicial review in a higher constitutional authority is against the basic structure of the Constitution. Speaking on behalf of the Bench, Chief Justice M. S. Liberhan observed: \We have earlier observed that violation of a constitutional provision can always be set right by issuing an appropriate writ when sought. Judicial restraint is the best arm in the armory of the judiciary. Though every action of the Legislature, Executive or any authority is judicially reviewable depending on the facts and circumstances of each case.\
id_853	0	IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 27th September 2023 (54) + CS (COMM) 135/2022 & I.As. 3423/2022, 9363/2022, 12156/2022, 16505/2022, 1221/2023, 1222/2023 DABUR INDIA LIMITED Plaintiff Through: Mr. Anirudh Bakhru and Mr. Kripa Pandit, Advocates versus ASHOK KUMAR AND ORS. Defendants Through: Mr. Yashvardhan Singh, Advocate for D‑1. Mr. Harish Vaidyanathan Shankar, Chief Government Standing Counsel with Mr. Srish Kumar Mishra, Mr. Sagar Mehlawat Alexander Mathai Paikaday, Advocates. Ms. Kruttika Vijay, Ms. Geetanjali Viswanathan, and Ms. Aishwarya Kane, Advocates for D‑5. Mr. Dayan Krishnan, Senior Advocate with Mr. Alipak Banerjee, Mr. Parva Khare, Mr. Brijesh Ujjainwal, Advocates for D‑4. Mr. K.G. Gopalakrishnan and Ms. Nisha Mohandas, Advocates for D‑7. Mr. Darpan Wadhwa, Senior Advocate with Ms. Shweta Sahu, Mr. Parva Khare, Ms. Aishwarya Jain, Mr. Brijesh Ujjainwal, Advocates. Mr. Apoorv Kurup and Ms. Kirti Dadheech, Advocates for R‑3. Mr. Akshay Goel, Mr. Shivam Narang and Mr. Lalit Kashyap, Advocates. Mr. Shubhendu Anand, Mr. Piyush M. Dwivedi, Advocates. Mr. Kushal Gupta and Mr. Mohd Umar, Advocates. Mr. Prashant Prakash, Advocate. Ms. Lakahmi Kruttika Vijay and Ms. Aishwarya Kane, Advocates for D‑5. Ms. Hetu Arora Sethi, Assistant Standing Counsel, GNCTD with Mr. Arjun Basra, Advocate; Jai Prakash, Assistant Commissioner of Police, Internet Fraud Special Operations Cyber Cell, along with Inspector Sanjeev Solanki, Inspector Kusum, Inspector Suneel Siddhu and Sub‑Inspector Manzoor Alam. ACP Raman Lamba with Inspector Suneel Siddhu, Internet Fraud Special Operations, Special Cell. WITH CS (COMM) 20/2019 & I.As. 561/2019 TATA SKY LIMITED Plaintiff Through: Mr. Tanmaya Mehta, Advocate versus S G ENTERPRISES TATA SKY SALES AND SERVICES AND ORS. Defendants Through: Mr. Moazzam Khan, Ms. Shweta Sahu, Mr. Alipak Banerjee and Ms. Parva Khare, Advocates for D‑5. Ms. Akshita Jain, Advocate for D‑8. WITH CS (COMM) 193/2019 & I.As. 5399/2019, 11497/2019, 18216/2019, 15451/2021, 6069/2022 COLGATE PALMOLIVE COMPANY & ANR. Plaintiffs Through: Mr. Pravin Anand, Mr. Saif Khan and Mr. Rohil Bansal, Advocates versus NIXI & ANR. Defendants Through: Ms. Akshita Jain, Advocate for D‑1. Mr. Darpan Wadhwa, Senior Advocate with Ms. Swati Agarwal, Ms. Binsy Susan, Mr. Shashank Mishra, Ms. Akshi Rastogi, Ms. Vaani Kaushik and Mr. Vaarish Sawlani, Advocates for D‑3‑4. Mr. Anurag Ahluwalia, Chief Government Standing Counsel with Mr. Danish Faraz Khan, Mr. Abhigyan Siddhant and Mr. Rahul Sharma, Advocates for Union of India with Mr. Tanmay Nirmal, Manager Legal. Mr. Tentu Satyanarayan, Director (Legal), UIDAI and Mr. Tanmaya Nirmal, Deputy Manager (Legal & Policy), UIDAI. Mr. Kushagra Goel and Mr. Abhimanyu Yadav, Advocates for D‑7. ... (the remaining case listings have been omitted for brevity as they are repetitive and contain no additional substantive information)., CORAM: JUSTICE PRATHIBA M. SINGH (Oral) 1. This hearing has been done through hybrid mode. 2. These matters relate to domain names being registered by unknown third parties infringing trademark rights of various brand owners and implementation of court orders by the Domain Name Registrars. From time to time, various directions have been passed by this High Court of Delhi in respect of blocking and locking of the infringing domain names, and implementation of court orders by various Domain Name Registrars which may or may not be located in India. 3. Today, submissions have been made in part by Mr. Dayan Krishnan, Mr. Darpan Wadhwa, Mr. Rajshekhar Rao, Senior Counsel and Mr. Harish V. Shankar, Chief Government Standing Counsel. 4. Ms. Hetu Arora Sethi, Assistant Standing Counsel has placed on record a consolidated status report dated 26th September 2023 in respect of twenty‑nine cases. It is her submission that out of twenty‑nine matters, charge sheets have been filed in ten matters. 5. Ms. Sethi, Assistant Standing Counsel has also placed on record a written note of arguments in respect of the challenges faced by the Cyber Cell of the Delhi Police in investigation. The said challenges are as follows: i. Delay by banks in replying to emails and information sought by the Cyber Cell. ii. Domain Name Registrars and intermediaries who are hosting the website not providing proper details of the registrants in respect of cloud services and other services availed by them. iii. Use of Voice over Internet Protocol, Virtual Private Network, etc., by fraudsters to avoid detection. iv. Non‑providing of information by Google even though fake websites have booked AdWords through Google Ads programme. 6. The relevant portion of the written note of arguments is set out below: In pursuance of the orders and directions passed by this Honourable Court, investigations have been carried out and status reports have been filed from time to time. The Cyber Cell of Delhi Police, in one of its status reports, pointed out the challenges faced by the Cyber Cell while investigating cases and the same has been recorded by this Honourable Court in paragraph 14 of its order dated 03‑08‑2022. The following are some of the challenges faced by the Cyber Cell while investigating cases with banks, financial institutions, Domain Name Registrars, telecom service providers and various other agencies: i. Delay by banks in reply to e‑mails sent by Internet Fraud Special Operations. When a query or details of account number, KYC documents, account opening forms, IP address of net banking are asked by investigating agencies, timely reply is rarely received. Some of the banks namely State Bank of India, City Bank, Punjab National Bank take considerable time in providing the details and if the transactional details like IMPS, NEFT, RTGS are asked for, it takes more time. ii. Upon investigation by Internet Fraud Special Operations, it is found that bank accounts are being opened by bank officials without proper verification of addresses of the account holder. In online bank accounts, without physical verification, banks allow the account holder to withdraw the amount for a limit of Rupees one to two lakh. iii. Original IP address, associated mobile number, recovery e‑mail etc., by which the domain was created or came into existence, latitude and longitude captured by the system of the intermediary while creating the domain or sub‑domain. iv. Various payment methods, channels, UPI IDs and multiple bank accounts are used to collect money. It takes considerable time to follow up with each of the banks to provide information.
id_853	1	Another big challenge faced by the International Federation of ... (IFSO) is to trace the identity of cyber criminals or fraudsters who are domain name registrants hiding behind the privacy features enabled by domain name registrants. The intermediary, who hails from abroad, does not furnish the following details: details of the registrants who have allocated the domain or sub‑domain to the fraudster and the mode of payment for obtaining the domain; details of the intermediary providing cloud services or web hosting and the mode of payment for availing those services; original IP address, associated mobile number, recovery email etc., through which the domain was created; latitude and longitude captured by the system of the intermediary while creating the domain or sub‑domain; IP logs of the domain or website, subject to its privacy policy and the issuance of a Letter Rogatory or Mutual Legal Assistance Treaty, which is a cumbersome process; intermediaries having servers based in foreign countries arbitrarily deny the required information; Voice over Internet Protocol applications are not on the radar of agencies; fraudsters use virtual private network, The Onion Router (TOR) etc., so that Law Enforcement Agencies are not able to track them; changing telecommunication modes shift from GSM to application‑based communication, providing high anonymity to users; easy methods of digital impersonation such as cell‑ID spoofing and email spoofing are available online; and the use of fake and bogus identification for obtaining SIM cards and bank accounts., Similarly, a complaint was received by the Ministry of External Affairs, New Delhi, regarding fake websites that duped the public by accepting passport applications of Indian citizens and defrauding them by charging heavy processing fees in the name of the Passport Seva Programme. Upon investigation it was found that payments were made to Google Ads for listing these websites at the top of the search engine results on Google.com. A request was made to Google to provide the customers’ details, contact numbers, email addresses, payments and transaction history as required under Section 91 of the Criminal Procedure Code, but an automatic reply was received stating that all requests for disclosure of data must be accompanied by appropriate legal process and all communications must be sent from an official government‑issued email address. One such request letter by the Cyber Cell and the reply by Google are annexed as Annexure‑1., In view of the above stance of the Cyber Cell, it is deemed appropriate to issue notices to the nominated counsels of all banks appointed by the Delhi High Court, so as to evolve a method for ensuring that queries by the police authorities are replied to in a diligent and efficient manner, as innocent customers are being duped of substantial sums of money. The names of the nominated counsel to whom notice is to be issued by the Registry, without process fee, are annexed as Annexure A‑1., Insofar as Google LLC is concerned, it is directed to nominate one official who will communicate with the Cyber Cell, Delhi Police and provide the information required in respect of the fraudulent websites and render any other cooperation that may be needed to investigate the cases., In the matter CS(COMM)-303/2022, Ms. Sethi, learned counsel, submits that the request for information has been sent to the Mumbai Police on 19 September 2023. The status report is to be placed on record., The list is dated 24 November 2023. Prathiba M. Singh, Judge. Dated 27 September 2023. Corrected and released on 3 October 2023.
id_855	0	Leave granted. Heard the learned counsel for the parties. We are of the opinion that no criminal offence is made out, even if we accept the factual assertions made in the complaint, which was registered as the First Information Report. Failure to pay rent may have civil consequences, but is not a penal offence under the Indian Penal Code, 1860 (for short, Indian Penal Code). Mandatory legal requirements for the offence of cheating under Section 415 and that of misappropriation under Section 403 of the Indian Penal Code are missing. In view of the aforesaid position, the First Information Report is quashed., On the question put to the counsel for the appellants, it was stated that the appellants have vacated the property. Learned counsel for Respondent Number 3 disputes this statement and states that the appellants have not handed over physical vacant possession of the property to Respondent Number 3. Be that as it may, in view of the statement made by the learned counsel for the appellants, Respondent Number 3 is at liberty to enter into possession of the property without violating any law. Learned counsel for Respondent Number 3 states that there are huge arrears of rent which have to be recovered. It will be open to Respondent Number 3 to take recourse to such civil remedy as is available to him in law., Recording the above, the impugned order is set aside and the appeal is allowed, quashing the First Information Report. The question of when the appellant vacated the property and the arrears of rent are left open to be decided in civil proceedings. All pending applications are also disposed of., Item Number 1 Court 16 (Video Conferencing) Section II Petition(s) for Special Leave to Appeal (Criminal) Numbers 783/2020 (Arising out of impugned final judgment and order dated 22-11-2019 in MB Number 9718/2019 passed by the High Court of Judicature at Allahabad, Lucknow Bench) Date: 07-03-2022., For Petitioners: Mr. Ravi Chandra, Advocate; Mr. Kr. Sushobhan, Advocate; Mr. Dinesh S. Badiar, Advocate; Ms. Kajol Singh, Advocate; Mr. Ravi Kumar Tomar, Advocate on Record. For Respondents: Mr. V K Shukla, Senior Advocate; Mr. Adarsh Upadhyay, Advocate on Record; Mr. Amol Chitravanshi, Advocate; Mr. Manish Chahar, Advocate; Ms. Shashi Kiran, Advocate on Record., Upon hearing the counsel the Supreme Court of India made the following: Leave granted. The appeal is allowed in terms of the signed order. Pending applications, if any, stand disposed of.
id_856	0	WP(C) No. 114/2021 with CrlM No. 961/2021\nMahrukh Iqbal, Petitioner, Through: Mr. Areeb Kawoosa, Advocate; Mr. Attir Kawoosa, Advocate; Mr. Baba Musharif, Advocate\nv.\nRespondents 1 to 3, Through: Mr. B. A. Dar, Senior Additional Advocate General; Respondents 5, 6 and 7 present in person.\nCoram: Hon'ble Mr. Justice Ali Mohammad Magrey\nOrder dated 31 August 2021., This petition under Article 226 of the Constitution has been filed by the petitioner, the second wife of Respondent No. 4 (the first wife having been reportedly divorced prior to the second marriage), seeking recovery of her 20‑day‑old female child from the private respondents and delivery of custody to her. The petitioner also seeks a mandamus directing the official respondents 1 to 3 to ensure that the fundamental rights of the petitioner and her suckling baby, including the right to food, are not violated. Further prayer is for a direction to the official respondents to register an FIR against the private respondents for commission of offences against the infant girl under Sections 315, 340, 342, 344, 346, 361, 363, 365, 368, 369, 503, 506, 511 of the Indian Penal Code, and for offences against the petitioner under appropriate provisions. The petitioner hails from Jammu. Her marriage with Respondent No. 4 was solemnised on 09 November 2020 at Jammu. Respondents 5, 6 and 7 are respectively the step‑father, biological mother and step‑brother of Respondent No. 4. The petitioner lived with her husband at her in‑laws' house in Srinagar., In July 2021, the petitioner consulted a gynaecologist who advised a C-section delivery. Contrary to this medical advice, Respondent No. 4 insisted on a normal delivery. The private respondents forced her to undergo natural delivery, after which Respondent No. 4 halted interaction with her and deserted her in the last month of her pregnancy. The other private respondents also deserted her. With no one to rely on in Srinagar, the petitioner called her parents from Jammu, who arrived on 23 July 2021 and shifted her to Hotel Heemal, Boulevard. On 07 August 2021, she was admitted to Government JLN Medical Hospital, Rainawari, Srinagar. Doctors, after conducting tests including ultrasonography, advised a C-section on the same day as the baby’s life was under threat. The petitioner tried to inform her husband, but he had blocked her phone number. She informed Respondent No. 6, her mother‑in‑law, about the situation. A female child was born on 07 August 2021 by C-section, and the petitioner remained admitted until 09 August 2021. During her stay, the respondents created a hue and cry at the hospital; Respondent No. 6 threatened to take away the newborn, and the husband arrived with goons threatening her for undergoing a C-section. Subsequently, Respondent No. 7, the step‑brother, came with a maid, took the infant in his lap and attempted to run away, but the petitioner’s parents intervened and called the police, foiling the attempt., After the incidents, Respondents 5 and 6 visited the hospital on 09 August 2021, apologized for the conduct of the private respondents and assured no harm would be caused. The petitioner, believing the apologies, agreed to accompany them to the matrimonial home. She was discharged on the same day and, upon return to the matrimonial home at Waqeel Colony, Nishat, Srinagar, the private respondents snatched the baby from her arms and forcibly locked her in a room. From 09 August to 11 August 2021 she was allowed to breastfeed only on three occasions. From 11 August 2021, Respondents 4, 6 and 7, in connivance with Respondent No. 5, denied her access to the child, which she has not seen since. While confined, all her medical records, prescriptions and other documents went missing except one prescription/admit card from the Government JLN Medical Hospital. Clothes, bedding and other articles bought for the child were also missing. When she enquired with Respondent No. 5 about the infant’s whereabouts, he first said the private respondents had taken the baby and would return by evening; later he told her she would never see her daughter again and that he would make her crave the sight of the child. She remained locked for eight consecutive days, and her phone was snatched by Respondent No. 5. On 18 August 2021 she managed to obtain a mobile phone, contacted the Women’s Police Helpline, and lodged a complaint at the Women’s Police Station, Rambagh. She informed the Women’s Grievance Cell that her infant daughter had been illegally taken and was missing for seven days, but no action was taken; Respondent No. 5, being influential, suppressed the situation. The petitioner subsequently went to her parents., When this petition came up for consideration before the Jammu and Kashmir High Court on 27 August 2021, Respondents 5 and 7 were present in person. After hearing both parties, Respondent No. 5, the father of Respondent No. 7, undertook to surrender the baby before the court at 4:30 pm. In view of the undertaking, the Judicial Registrar shall take custody of the infant in the presence of the petitioner and hand over the baby to the petitioner upon identification by her counsel, with the undertaking that due care will be taken of the infant. The matter was listed for 31 August 2021., The Judicial Registrar made a note on 27 August 2021 at 05:50 pm stating that, as per the Hon'ble Jammu and Kashmir High Court order dated 27 August 2021, Respondent No. 5 was required to surrender the infant before the registrar’s office at 4:30 pm and, after receiving the infant, hand it over to the petitioner mother, adhering to the conditions laid down in the order. Respondent No. 5 failed to bring the infant despite waiting till 05:45 pm, thereby failing to comply with the direction of the Hon'ble Jammu and Kashmir High Court. Senior Medical Officer Dr. Irfan Hussain and Dr. Riyaz Ahmad Malla (Paediatrician) were made available for medical examination of the infant before handing over to the mother. The matter is submitted before the Hon'ble Jammu and Kashmir High Court for appropriate orders., The private respondents 5, 6 and 7 are present in person before the Jammu and Kashmir High Court but have not produced the child. They expressly stated before the court that they are not going to part with custody of the baby girl in favour of the petitioner, alleging that she does not possess good antecedents. Mr. Zahoor A. Shah, Respondent No. 5, was asked about the implementation of the order passed on 27 August 2021 and his undertaking to produce the child, but without a satisfactory reply he insisted on time to make submissions rejecting the petitioner’s claim., The intentions of the private respondents are clear. The 24‑day‑old female child has been deprived of her mother’s milk, care and bonding since 11 August 2021, i.e., for the last 20 days. Breast milk is a natural and perfect mix of vitamins, proteins and fats, easily digested by babies, containing antibodies that help fight viruses and bacteria, lowering the risk of infections and allergies, and has been linked to higher intelligence quotient in later childhood. Breastfeeding also provides skin‑to‑skin contact and eye contact, fostering a secure bond between mother and baby. The deprivation has caused physical, mental and emotional suffering to both the infant and the petitioner., The petitioner has also filed a contempt petition against the private respondents, which will be dealt with separately. Paragraph 4 of that petition states that the petitioner apprehends that her daughter, who is 19 days old, might have been killed by the private respondents. This is a serious apprehension. Given the facts and circumstances narrated above, the Jammu and Kashmir High Court has no reason to brush aside this apprehension. The private respondents, despite undertaking before the court, have not produced the child before the Judicial Registrar on 27 August 2021. The deprivation to which the child has been subjected may be more serious and fatal for a child of her tender age than an attempt to kill the child., In light of the above, the Jammu and Kashmir High Court cannot act as a mute spectator. In the interest of justice, necessary measures are ordered to save the life and health of the child and to relieve the mother’s agony:\n(i) The Senior Superintendent of Police, Srinagar, is directed to take all necessary measures to ensure recovery of the female child of the petitioner from the private respondents by 4:30 pm today, with authority to raid any place or household suspected of confining the child;\n(ii) The Senior Superintendent of Police or the police team assigned shall keep a Magistrate along and available to meet any eventuality or fulfill any legal formality;\n(iii) The Senior Superintendent of Police or the police team shall keep a paediatrician from Children Hospital, Sonawar, Srinagar, or another suitable hospital, to conduct an immediate medical check‑up of the child upon recovery, assessing health condition, trauma, and any ailments caused by lack of breast milk and mother’s care; a detailed report with the medical examination shall be submitted to the court;\n(iv) The police shall record the exact time and place of recovery, from whom the child is recovered, and the condition in which she was kept, and mention it in the report to the court;\n(v) The police team, together with the doctor accompanying them, shall contact the Medical Superintendent of JLN Medical Hospital, Rainawari, to obtain records of the child’s birth weight and general health at birth, and assess whether she has gained weight normally or suffered loss, incorporating these findings in the police/medical report;\n(vi) If the doctor accompanying the Senior Superintendent of Police opines that the child needs examination by more than one doctor or a board of doctors, the police shall act accordingly, and the medical team shall advise treatment for any ailment suffered during separation;\n(vii) The medical team may suggest a tentative minimum compensation to be granted in favour of the mother for the trauma suffered by the child and for future care;\n(viii) Upon recovery and medical examination, the Senior Superintendent of Police shall produce the child before the Judicial Registrar of this court, who shall then proceed as provided in the court’s order dated 27 August 2021;\n(ix) The petitioner may, if advised, file a proper complaint before the concerned police station for the alleged offences by the private respondents against the child or herself, and the police shall proceed in accordance with law without any influence., The matter is listed for further proceedings tomorrow at 2 pm. The private respondents are directed to file their response to the petition. The Judicial Registrar shall communicate a copy of this order through fax, mail or any other speedy mode to the Senior Superintendent of Police, Srinagar, for information and compliance. A copy of the order shall also be immediately provided to Mr. B. A. Dar, Senior Additional Advocate General, signed by the Court Secretary., The matter is listed for 1 September 2021 along with the main petition.\n(Justice Ali Mohammad Magrey)
id_857	0	Date: 17.08.2023 Honourable Chief Justice of India Supreme Court of India Subject – Letter Petition regarding videos circulating on various social media platforms depicting hate speeches and slogans purportedly uttered at places in Haryana including Nuh, calling for economic boycott and other abuse of certain communities. This kind of circulation can have the effect of inciting and provoking communal disharmony and sectarian violence. We therefore urge the Honourable Supreme Court of India to direct that the State Government (i) take steps in accordance with the directions of the Supreme Court of India to prevent incidents of hate speech, (ii) track and ban videos of hate speech in accordance with law, and (iii) take immediate action against persons found responsible for committing acts of hate speech., In light of the recent events that have occurred in the Nuh region in Haryana, a deep concern has arisen due to videos that have surfaced on social media of hate speech and incitement of targeted violence, which are disrupting peace and harmony in our society. We, as members of the legal community and of the Delhi High Court Women Lawyers Forum, residing in Delhi and Gurgaon, have approached Your Lordship by this Letter Petition to bring to your notice that hate‑speech videos are circulating on social media which purport to have been recorded at rallies in Haryana. We humbly seek urgent and expeditious directions to the State of Haryana to prevent incidents of hate speech and to take action against those who have perpetrated it, in violation of directions repeatedly issued by the Supreme Court of India, and to immediately track and ban these videos that amplify hate speech and create an atmosphere of fear., The Honourable Punjab and Haryana High Court, suo moto, issued directions vide Order dated 7.8.2023 in CWP‑PIL‑68/2023, staying illegal demolitions by the State and expressing concern on whether buildings belonging to a particular community are being brought down under the guise of a law and order problem. The swift and sensitive approach of the Punjab and Haryana High Court has gone a long way in building confidence of citizens in the rule of law., The Supreme Court of India, on 11.08.2023 in Shaheen Abdullah v. Union of India observed that there has to be harmony and comity between the communities and that the calls to boycott the Muslim community after the recent communal violence at Nuh were unacceptable. The Court mooted the idea that the Director General of Police should constitute a committee to verify all material and issue directions to the concerned officer and that the police need to be sensitised., In Tehseen S. Poonawalla v. Union of India and Others (2018) 9 SCC 501, the Supreme Court of India recorded that mob vigilantism and mob violence have to be prevented by the governments by taking strict action. That rising intolerance and growing polarisation expressed through incidents of mob violence cannot be permitted to become the normal way of life or the normal state of law and order in the country. The State has a sacrosanct duty to protect its people from unruly elements and perpetrators of vigilantism, with utmost sincerity., Specific guidelines have been issued with regard to both the Central Government and the State Government. They include police patrolling in sensitive areas so that anti‑social elements involved in crimes related to mob violence against any caste or community remain within the boundaries of law and do not take the law into their own hands. The State and Centre are required to broadcast on radio, television and other media as well as their official platforms that such violence shall invite serious consequences. They are also required to curb and stop dissemination of irresponsible and explosive messages, videos and other material that may have a tendency to incite mob violence of any kind. The police are required to register First Information Reports against persons who disseminate such messages, videos and other material. Nodal officers are required to be designated for information and action. Such cases must be fast‑tracked and preferably concluded within six months. Compensation, where required, is to be granted within thirty days. Failure of the district administration must be seen as an act of deliberate negligence., The Supreme Court of India has concluded the above judgment by emphatically noting that it is the duty of the State to ensure that the machinery of law and order functions effectively and efficiently to maintain peace and to preserve the quintessentially secular ethos and pluralistic social fabric in a democratic set‑up governed by the rule of law. The Supreme Court issued further directives in October 2022 and April 2023 mandating immediate suo moto action to register First Information Reports in cases involving hate‑speech offences even if no complaint is forthcoming and to proceed against the offenders in accordance with law. The order made it clear that such action will be taken irrespective of the religion of the maker of the speech or the person who commits such acts, so that the secular character of Bharat as envisaged by the Preamble is preserved and protected., Despite such repeated guidelines and directions, the unprecedented incidents of hate speech in Nuh and other districts reveal a comprehensive failure on the part of the State Administration and police to implement preventive measures, as well as to have appropriate responsive measures during and after these incidents of hate speech. Unchecked hate speech in rallies and speeches not only carries the risk of inciting violence but also fosters and spreads an environment and culture of communal fear, harassment and discrimination. The concern is magnified by the fact that the videos circulating on social media show individuals carrying arms in processions and chanting communal slogans in contravention of the Constitution, the Arms Act and the law laid down by the Supreme Court of India through its rulings. Yet there does not seem to be any verification of these videos, and no action against persons indulging in such acts. This is a dangerous threat to social harmony and the rule of law in India. If allowed unchecked, it might be impossible to control this growing trend of hate and violence., As women, as mothers and as officers of the Court, we feel a strong commitment to communal harmony and the rule of law and, with this sense of responsibility, we have approached Your Lordship for the following directions to the State Government of Haryana: (i) to promote an environment of dignity and liberty for citizens of all religions in the State of Haryana and fraternity between communities by announcing programmes that highlight inclusion and awards for acts of communal harmony; (ii) to take steps in accordance with the directions of the Supreme Court of India to prevent incidents of hate speech; (iii) to track and ban videos that threaten harm to any community, places of worship or urge economic boycott of any community; and (iv) to take immediate action against persons found responsible for committing acts of hate speech., Sincerely, Delhi High Court Women Lawyers Forum (The list of signatories is provided below) 1. Miriam Fozia Rahman
id_858	0	Himachal Pradesh High Court Criminal Miscellaneous Miscellaneous Order No. 339 of 2020 Reserved on 22.02.2021 Date of Decision 22.02.2021 Anu Tuli Azta, Petitioner versus State of Himachal Pradesh, Respondent. Coram: The Hon'ble Mr. Justice Anoop Chitkara, Judge., The petitioner, who is an advocate and member of the Shimla District Courts Bar Association, has come up before the Himachal Pradesh High Court seeking quashing of the FIR, registered for wrongful restraint, forming unlawful assembly, rioting, indulging in criminal force to deter public servants from discharging their duties, intentional insult to breach the peace, and criminal intimidation. It has been averred that the lawyers were protesting peacefully against restricting the entries to the District Court complex Shimla from a shorter route, forcing them to take a longer way, which caused traffic jams and delayed attendance to the courts. The police registered a concocted FIR due to wreaking vengeance with malicious intentions to scuttle the agitation. The police arraigned her as an accused because she was supporting their cause., The gist of the facts relevant to decide the present petition is as follows: The Police Station (West), Shimla, registered the FIR mentioned above based on Inspector Dinesh Kumar's complaint, the Station House Officer (SHO) of the said police station. On 22 July 2019, Inspector Dinesh Kumar informed his police station that he received telephonic information from Assistant Sub-Inspector Ramesh Chand, who was deputed on traffic duty, that a large number of advocates had assembled at Boileauganj Bazar in Shimla town. These advocates insisted on taking their vehicles through the restricted road leading to Boileuganj via Chaura Maidan, though they did not have any valid permits. The complainant SHO reached the spot of agitation, noticed many advocates assembled, and the petitioner was one of them. The agitated advocates had blocked the road by stopping their vehicles in the middle of the road. The SHO asked them the reasons for creating the traffic jam by halting their vehicles. The lawyers asserted their right to drive through the restricted road. When the SHO asked the lawyers to show permits for driving on the restricted road, the lawyers replied that he could not stop them from driving their vehicles and at most could issue a challan. Subsequently, the lawyers turned aggressive, started pushing police officials, inflicted fist blows, and hurled abuses. The complainant tried to calm them down, but they continued hurling abuses, gave pushes, fist blows, threatened to burn the police station, and told the SHO that they would teach him a lesson they would never forget. After that, the lawyers sat in protest at the spot and raised slogans. The SHO, Inspector Dinesh Kumar, directed the police station to register an FIR against the lawyers and named the petitioner as the person present at the spot., Learned counsel for the petitioner contends that even if all allegations recorded in the FIR and investigation are hypothetically accepted as true and correct, such allegations fail to make out any prima facie case against the petitioner. Therefore, the FIR and proceedings should be quashed., Learned Additional Advocate General contends that although this Court in Rajiv Jiwan versus State of Himachal Pradesh, Criminal Miscellaneous Miscellaneous Order No. 51 of 2020, had quashed an FIR of one of the co-accused after consideration of material collected against such accused, the petitioner has to make out a separate Himachal Pradesh High Court case for quashing, without relying upon the judgment in Rajiv Jiwan's case., In Ashok Chaturvedi v Shitul H. Chanchani, 1998 (7) Supreme Court Cases 698, the Supreme Court of India holds that the determination of the propriety of the order of the magistrate taking cognizance and issuing process need not wait till the stage of framing the charge. This argument does not appeal to us because merely because an accused has a right to plead at the time of framing of charges, it does not mean that there is insufficient material for such framing of charges as provided in Section 245 of the Code of Criminal Procedure. An accused is not debarred from approaching the Himachal Pradesh High Court at an earlier point when the magistrate takes cognizance of the offence and summons the accused to appear to contend that the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations in the complaint petition. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. Allowing the criminal proceeding to continue where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of the court, and therefore, there can be no dispute that in such case power under Section 482 of the Code can be exercised., In Kunstocom Electronics (I) Pvt. Ltd. v Gilt Pack Ltd. and another, (2002) 2 Supreme Court Cases 383, the Supreme Court of India holds that there is no hard and fast rule that the objection as to cognizability of offence and maintainability of the complaint should be allowed to be raised only at the time of framing the charge., In Girish Sarwate v State of Andhra Pradesh, 2005 (1) Rajasthan Criminal Reporter (Criminal) 758, the Full Bench of the Andhra Pradesh High Court observed that the High Court need not wait for completion of investigation and taking cognizance by the magistrate., The law is almost settled by larger bench judgments of the Supreme Court that offences not listed as compoundable under Section 320 of the Code of Criminal Procedure can also be compounded, and the procedure to follow would be by quashing the FIR and consequent proceedings. Himachal Pradesh High Court., In R.P. Kapur v State of Punjab, All India Reporter 1960 SC 866, a three‑member bench of the Supreme Court of India holds that the inherent jurisdiction of the Himachal Pradesh High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the Himachal Pradesh High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule governing the exercise of this inherent jurisdiction. However, categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings are indicated. Where the institution or continuance of criminal proceedings against an accused person may amount to an abuse of the process of the court or where quashing the impugned proceedings would secure the ends of justice, the Himachal Pradesh High Court would be justified in quashing the proceedings. If there is a legal bar such as absence of the requisite sanction, the Himachal Pradesh High Court may quash. Cases may also arise where the allegations in the FIR or complaint, even if taken at face value, do not constitute the offence alleged; in such cases the Himachal Pradesh High Court may hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused. A third category includes cases where the allegations constitute an offence but there is either no legal evidence adduced in support of the case or the evidence adduced clearly fails to prove the charge. In exercising its jurisdiction under Section 561-A, the Himachal Pradesh High Court would not embark upon an enquiry as to whether the evidence is reliable; that is the function of the trial magistrate. Broadly, that is the nature and scope of the inherent jurisdiction of the Himachal Pradesh High Court under Section 561-A in the matter of quashing criminal proceedings., In Madhavrao Jiwaji Rao Scindia v Sambhajirao Chandrojirao Angre, (1988) 1 Supreme Court Cases 692, a three‑judge bench of the Supreme Court of India holds that when a prosecution at the initial stage is sought to be quashed, the test is whether the uncontroverted allegations prima facie establish the offence. The court must also consider any special features of the case to decide whether it is expedient and in the interest of justice to permit the prosecution to continue. If the chances of an ultimate conviction are bleak and no useful purpose is likely to be served by allowing the criminal prosecution to continue, the court may, taking into account the special facts, quash the proceeding even at a preliminary stage., In Gian Singh v State of Punjab, 2012 (10) Supreme Court Cases 303, the Supreme Court of India settled the law on quashing on account of compromise or compounding. Section 482 of the Code, as its language suggests, saves the inherent power of the Himachal Pradesh High Court, being a superior court, to prevent abuse of the process of any court or otherwise to secure the ends of justice. The provision begins with the words 'nothing in this Code', indicating that it is an overriding provision and does not limit the inherent power. The guideline for exercise of such power is provided in Section 482 itself, i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. Section 482 confers no new powers on the Himachal Pradesh High Court; it merely safeguards existing inherent powers necessary to prevent abuse of the process of any court or to secure the ends of justice. The power is not to be resorted to if there is a specific provision in the Code for redress of the grievance of an aggrieved party. It should be exercised very sparingly and not against the express bar of law in any other provision of the Code. Quashing of an offence or criminal proceedings on the ground of settlement between an offender and victim is not the same as compounding of an offence. Compounding of offences under Section 320 is materially different from quashing of criminal proceedings by the Himachal Pradesh High Court in exercise of its inherent jurisdiction. In compounding, the court is circumscribed by Section 320, whereas in quashing, the Himachal Pradesh High Court forms an opinion based on the material on record as to whether the ends of justice would justify such exercise of power, even if the ultimate consequence may be acquittal or dismissal of indictment. Where the Himachal Pradesh High Court quashes a criminal proceeding because the dispute between the offender and victim has been settled although the offences are not compoundable, it does so because continuation of the criminal proceedings would be futile and justice demands that the dispute be put to an end and peace restored. Serious offences such as murder, rape, dacoity, offences of mental depravity under the Indian Penal Code, offences of moral turpitude under special statutes such as the Prevention of Corruption Act, or offences committed by public servants in the discharge of their duties, cannot be quashed merely because the victim has settled the dispute. However, offences that overwhelmingly bear a civil flavour, arising out of civil, mercantile, commercial, financial, partnership or similar transactions, or offences arising out of matrimony, dowry, or family disputes, where the parties have settled amicably, may be quashed by the Himachal Pradesh High Court within its inherent power if the settlement makes conviction unlikely and continuation would cause oppression and prejudice. The list is illustrative and not exhaustive; each case depends on its own facts., In Parbatbhai Aahir v State of Gujarat, (2017) 9 Supreme Court Cases 641, a three‑judge bench of the Supreme Court of India laid down broad principles for quashing a FIR: (i) Section 482 preserves the inherent powers of the Himachal Pradesh High Court to prevent an abuse of the process of any court or to secure the ends of justice; it does not confer new powers. (ii) Invoking the jurisdiction of the Himachal Pradesh High Court to quash an FIR on the ground of settlement between offender and victim is not the same as invoking jurisdiction for compounding an offence, which is governed by Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non‑compoundable. (iii) In forming an opinion whether a criminal proceeding or complaint should be quashed, the Himachal Pradesh High Court must evaluate whether the ends of justice would justify the exercise of the inherent power. (iv) The inherent power of the Himachal Pradesh High Court has a wide ambit but must be exercised (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court. (v) The decision to quash on the ground of settlement ultimately depends on the facts and circumstances of each case; no exhaustive list of principles can be formulated. (vi) While exercising power under Section 482, the Himachal Pradesh High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot be appropriately quashed even if the victim or the victim's family has settled the dispute, as such offences are not private in nature but have a serious impact upon society. (vii) Criminal cases that have an overwhelming civil dispute element stand on a distinct footing for the exercise of the inherent power to quash. (viii) Criminal cases arising from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may, in appropriate situations, be quashed where parties have settled the dispute. (ix) The Himachal Pradesh High Court may quash the criminal proceeding if, in view of the compromise, the possibility of conviction is remote and continuation would cause oppression and prejudice. (x) An exception is economic offences involving the financial and economic well‑being of the State; the Himachal Pradesh High Court would be justified in declining to quash where the offender is involved in financial or economic fraud or misdemeanour., The FIR nowhere mentions the role of the petitioner. Even if the Himachal Pradesh High Court presumes the petitioner was present at the spot, it would not lead to an automatic inference that she acted with a common object with those who inflicted fist blows, hurled abuses, and threatened the SHO, and also threatened to burn the police station., Although the police obtained a video recording of the incident, the State did not refer to the portion of the disk showing the time frame in which the petitioner was video recorded inflicting fist blows, hurling abuses, or threatening the SHO or threatening to burn the police station., In the complaint, the SHO did not mention the time, and there is no explanation for its non‑mentioning. Pinpointing the time was crucial because the petitioner could have taken the plea of alibi., Even if this Court believes all the allegations in the FIR as truthful, there is no allegation against the petitioner of participating in any criminal act., Mere presence at the spot in the demonstration would not invite criminal liability in view of the facts and nature of allegations made in the present FIR., Holding peaceful processions and raising slogans would not be and cannot be an offence under the Constitution of India., Therefore, naming and arraigning the petitioner as an accused is a gross abuse of the process of law. If the proceedings are allowed to continue, it would amount to a miscarriage of justice., In the cumulative effect of all the factors mentioned above, and in the peculiar facts and circumstances, this is an exceptional case where the Himachal Pradesh High Court should exercise its inherent jurisdiction under Section 482 of the Code of Criminal Procedure., Given the above, this is a fit case where the inherent jurisdiction of the Himachal Pradesh High Court under Section 482 of the Code of Criminal Procedure is invoked. The Court has inherent powers under Section 482 of the Code of Criminal Procedure to interfere in this matter. Considering the entirety of the case and judicial precedents, I am of the considered opinion that the continuation of these proceedings will not serve any fruitful purpose whatsoever. Himachal Pradesh High Court., In Himachal Pradesh Cricket Association v State of Himachal Pradesh, 2018 (4) Crimes 324, the Supreme Court of India holds that as far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants challenged the order of cognizance because the matter was already pending as the appellants had filed Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, the writ petition was entertained. Once it is held that the FIR needs to be quashed, the order of cognizance would automatically stand vitiated., Consequently, this petition is allowed, and FIR No. 164/2019 dated 22.07.2019, registered in Police Station (West), Shimla, under Sections 341, 143, 147, 149, 353, 504, and 506 of the Indian Penal Code, is quashed as to the petitioner. Since the FIR has been quashed, all consequential proceedings are also quashed and set aside as to the petitioner. The petition is allowed in the aforesaid terms. All pending applications, if any, stand closed.
id_86	0	Writ Petition No. 5706 of 2021 Malarkodi @ Malar (Petitioner) – The Chief Internal Audit Officer, Board Office Audit Branch, N.P.K.R.R. Maaligai, First Floor, 144/800, Anna Salai, Chennai 600002; The Executive Engineer, Execution and Maintenance, Tamil Nadu Electricity Board, Thiruvidaimarudhur Main Road, Kumbakonam 612001; The Superintendent Engineer, Vallam Road; The Branch Manager, Indian Overseas Bank, Gandhi Salai, Kumbakonam Branch (Respondents)., The writ petition is filed under Article 226 of the Constitution of India, praying for a writ of Certiorari and Mandamus, calling for the records pertaining to pension, by an order dated 25 November 2020, vide Ka. No. 010206/411/Ni.Bi.2(2)/Ko. Oivu/2020, passed by the third respondent, and seeking to quash the same and further direct the respondents to disburse the family pension and other related pensionary benefits including the lifetime pending arrears to the petitioner. For petitioner: Miss D. Kalaivani. For respondents: Mister Fakkir Mohideen., The petitioner seeks to quash the order dated 25 November 2020 passed by the third respondent vide Ka. No. 010206/411/Ni.Bi.2(2)/Ko. Oivu/2020, and to obtain a direction for the respondents to disburse family pension and other related pensionary benefits including the lifetime pending arrears to her., According to the petitioner, her husband, the late S. Kaliyaperumal, worked as Foreman I Grade in the Kumbakonam Branch of the respondent Tamil Nadu Generation and Distribution Corporation (TANGEDCO) and, after completing 33 years of service, retired on 31 March 2004. After retirement, he received pension in his bank account from the TANGEDCO Pensioners' Family Security Fund and lifetime arrears of pension from TANGEDCO vide PP.O. No. 52572, and his monthly pension was credited to his savings bank account in Indian Overseas Bank, Gandhi Salai Branch, Kumbakonam., It is further stated by the petitioner that, in the pension account, her husband had mentioned Mrs. Susila, his first wife, as his nominee. Mrs. Susila is the petitioner’s own sister. As Susila predeceased the petitioner’s husband on 21 February 2009 due to illness, the husband made an application in 2015 to change the nominee details in his account and requested that the petitioner’s name be updated as the nominee for his pension account. While the application was pending, the husband died on 11 January 2015, leaving behind the petitioner, three sons and three daughters as his legal heirs. As all the sons and daughters have married and settled with their families, the petitioner is greatly dependent on her husband’s pensionary benefits., It is the case of the petitioner that, after the death of her husband, the provident fund and other amounts from his pension account were not withdrawn from his bank account. Due to non‑withdrawal, the bank kept the account as ‘Inactive’ and it is in a non‑operational stage. As the petitioner’s application to the respondents seeking withdrawal of the pension amount from his account was rejected, having no other alternative, she has approached the Madras High Court by way of the present writ petition., The learned counsel on either side were heard and the material documents available on record were perused., Admittedly, the petitioner is the sister of her husband’s first wife. The petitioner states that her sister Susila was suffering from cancer and was asked to marry the husband; both Susila and the petitioner lived together under one roof after the petitioner’s marriage to the deceased. It is not in dispute that the first wife of the petitioner’s husband predeceased him due to illness. Accordingly, the petitioner claims entitlement to pension and other retirement benefits of her husband under Rule 49 of the Tamil Nadu Pension Rules, 1978. It is also stated that the children of the deceased have no objection to the petitioner receiving the terminal benefits of the deceased, including pension. Although the rule applicable to the employees of the respondent board is old, Rule 49(7) of the said rules requires a valid marriage., Rule 49(7) of the Tamil Nadu Pension Rules, 1978 provides: (a) (i) Where family pension is payable to more than one widow, the family pension shall be paid to widows in equal shares. (ii) On the death of a widow, her share of the family pension shall become payable to her eligible child; provided that if the widow is not survived by any child, her share shall be payable to the other widows in equal shares, or if there is only one such widow, in full to her. (b) Where the deceased government servant or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the government servant or pensioner; provided that on the share or shares of family pension payable to child or children or to a widow or widows ceasing to be payable, such share or shares shall be payable to the other widow or widows and or to the other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child. Explanation – For the purpose of this rule, the second wife shall be eligible for the benefits of family pension only if the second marriage (i) was solemnised as per the customary law prevailing among the community before the commencement of the Hindu Marriage Act, 1955; or (ii) was solemnised under the Mohammadan Law in which bigamy is permissible. (7‑A) Where family pension is payable to more than one person, each share containing a fraction of a rupee shall be rounded off to the next higher rupee, except where the total of all shares exceeds the maximum limit of family pension admissible. (8) (i) Except as provided in sub‑rule (7), the family pension shall not be payable to more than one member of the family at the same time. Explanation – For the purpose of this rule, twin children born at a single birth shall be treated as of the same age and made eligible for family pension in equal shares. (ii) If a deceased government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child. (iii) (a) If sons and unmarried daughters are alive, the eligible male or female children will be entitled to family pension in the order of their birth, irrespective of the sex of the child, and the immediate younger of them will be eligible for family pension only after the elder becomes ineligible. (b) In the case of twin children, family pension is payable to such twin children in equal shares; if one child ceases to be eligible, his or her share will become payable to the other child, and when both become ineligible, the family pension will become payable to the next eligible child or twin children, as the case may be., The Hindu Marriage Act, 1955 does not permit a second marriage. A second marriage becomes valid only if solemnised after the demise of the first wife. However, after the enactment of the Protection of Women from Domestic Violence Act, 2005, even without a formal marriage, when a live‑in relationship between a man and a woman is established, it is held to be legally valid and, over time, the woman may attain the status of a wife. After the demise of the husband, if two wives are alive, the second woman will not attain the legal status of ‘wife’ unless personal law permits., The issue whether a presumption of marriage arises when parties are in a live‑in relationship for a long period of time, giving rise to a claim under Section 125 of the Code of Criminal Procedure, was considered in Chanmuniya v. Virendra Kumar Singh Kushwaha before the Supreme Court. It was held that where a man and a woman have cohabited for a long period of time, in the absence of a valid marriage, the woman would be entitled to maintenance. A man should not be allowed to benefit from legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations of such marriage. A broad and expansive interpretation must be given to the term ‘wife’ to include cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a pre‑condition for grant of maintenance under Section 125., The Parliament, to protect the interest of women who become a second wife or a concubine as a result of a long live‑in relationship with a male companion, enacted the Protection of Women from Domestic Violence Act, 2005. Section 2(f) of the Act defines ‘Domestic Relationship’ as a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption, or are family members living together as a joint family., The Domestic Violence Act, 2005 does not state that a married man cannot have a live‑in relationship with an unmarried woman, nor that a married woman cannot have a relationship with any person, especially after Section 497 of the Indian Penal Code was struck down by the Supreme Court. The Supreme Court has held that in a live‑in relationship between a male and a female who do not have a spouse, a situation such as the present case may arise only after the demise of the legally wedded person., The expression ‘relationship in the nature of marriage’ as being akin to a common‑law or de facto marriage was considered in D. Velusamy v. D. Patchaiammal. It was opined that a common‑law marriage requires that, although a couple may not be formally married: (a) the couple hold themselves out to society as being akin to spouses; (b) the parties must be of legal age to marry; (c) the parties must be otherwise qualified to enter into a legal marriage, including being unmarried; and (d) the parties must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. However, not all live‑in relationships amount to a relationship in the nature of marriage for the purposes of the Domestic Violence Act. Merely spending weekends together or a one‑night stand would not constitute a domestic relationship., When there is a specific enactment of the Protection of Women from Domestic Violence Act, 2005, Rule 49 of the Tamil Nadu Pension Rules, 1978 will take a backseat, as the Domestic Violence Act will become the controlling statute and the woman must be given protection; the rule cannot supersede the aforementioned statute. In light of the Domestic Violence Act, 2005, if a live‑in relationship is established, the woman attains the status of a wife. The development of law is considered only with respect to cohabitation that continues after the death of the first wife., In a similar circumstance, a learned Single Judge of the Madras High Court in C. Sarojini Devi v. The Director of Local Fund Audits, Chennai, held that the second wife is entitled to payment of family pension after the death of the first wife. The judgment noted that the petitioner had married the government employee during the subsistence of the first marriage; the first marriage was dissolved in 2003 and the first wife died in 2005. The Court considered the judgment of the Supreme Court in Dhannulal's case, where the Supreme Court held that law presumes in favour of marriage and against concubinage when a man and woman have co‑habited continuously for a long time. Relying upon this judgment, the Court held that after the dissolution of the first marriage and after the first wife's death, the petitioner lived with the deceased government servant until his death and therefore must be considered the wife of the deceased at least after the dissolution of the first marriage and the subsequent death of the first wife., The Madras High Court is in complete agreement with the proposition of law enunciated in the above judgment. It is easy to brand the petitioner as a concubine and deprive her of her livelihood; however, the fact remains that the petitioner lived with the deceased Dr. A. Chinnasamy from 1975 until his death in 2009, a period of nearly 34 years, and gave birth to three children. If the petitioner had made this claim while the first wife was alive, she would not be entitled to family pension, as her relationship would not be recognized by law., The development of law considers co‑habitation that continues after the death of the first wife, which was the crucial factor considered by the Madras High Court while granting family pension to the petitioner in the cited case. In the present case, the first wife died on 2 April 1997. Thereafter, the petitioner lived with the deceased Dr. A. Chinnasamy until his death on 20 January 2009. During this period, it can be construed that the petitioner and Dr. Chinnasamy were living as husband and wife, and their long co‑habitation raises a presumption of marriage. Moreover, Dr. Chinnasamy had nominated the petitioner on 11 May 1999 to receive the family pension after his death., In the considered view of the Madras High Court, it must lean towards the presumption of marriage rather than branding the petitioner as a concubine, which is the most appropriate way to deal with the facts of the present case to achieve justice for the petitioner., In view of the above discussion, the Madras High Court quashes the impugned order passed by the first respondent on 1 February 2016. The first respondent is directed to pass necessary orders and sanction family pension to the petitioner with effect from the date of death of Dr. A. Chinnasamy, i.e., from 20 January 2009, and to disburse the arrears of pension to the petitioner within twelve weeks from the receipt of a copy of this order. The petitioner shall continue to be paid the family pension for her lifetime., When the rule specifically gives relief to more than one widow, taking into account personal law, the question of validity of the second marriage does not arise during the subsistence of the first marriage. It is the view that the second wife attains the deeming status of a wife from the date of demise of the first wife, provided the husband is alive on that date. Also, when an unknown relationship becomes known after the demise of the husband, such a woman may not be entitled to any relief unless personal law permits more than one marriage or a declaration is obtained from the competent judicial forum regarding her legal status, after making the first wife a party if she is alive., It is pertinent to refer to a Division Bench decision of the Madras High Court in R. Rajathi v. The Superintending Engineer, TANGEDCO, Nagapattinam District (Writ Appeal No. 977 of 2017, dated 5 June 2018), wherein, in a similar circumstance regarding grant of pension to the second wife of a deceased employee, it was held: ‘We are therefore constrained to conclude that judgments which conclude that a second wife would be entitled to family pension, irrespective of her marriage being void, under the provisions of the relevant personal laws applicable to the parties, do not reflect the correct position of law and therefore will stand overruled. The applicability of Sub‑Rule 7(a)(i) is confined only to cases where the second marriage is valid under the personal law applicable to the parties; only in such cases widows of such marriages would be entitled to family pension.’, Although bound by the Division Bench decision of the Madras High Court, the Domestic Violence Act has not been taken into account, and there are differing judgments on the issue, including the petitioner’s own judgment in S. Kamatchi v. The Accountant General, Office of the Principal Accountant General, Chennai, dated 6 August 2014, which was dealt with by the Division Bench in paragraphs 13, 17 and 35 of the Rajathi judgment, it is the view that the matter should be referred to a larger bench to obtain finality on (i) whether Rule 49 of the Tamil Nadu Pension Rules, 1978 can override the rights guaranteed to women under the Protection of Women from Domestic Violence Act, 2005, and (ii) whether a concubine, after the enactment of the Domestic Violence Act, 2005, attains the status of a companion or wife after the demise of the first wife during the lifetime of her husband, and, due to a continued live‑in relationship, whether she attains the status of a wife to obtain pensionary and other terminal benefits of the deceased., Taking note that women are to be respected and protected, especially in light of the Protection of Women from Domestic Violence Act, 2005, the issue needs to be decided by a larger bench. The registry is directed to place the matter before the Honorable Chief Justice to constitute a larger bench for deciding the issue in question. Dated 9 March 2021.
id_860	0	Dr. Astha Goel and others Appellants versus the Medical Counselling Committee and others Respondents. Dr. Atharv Tungatkar and others Appellants versus the Medical Consulting Committee and others Respondents. Dr. Nikhil Arora Appellant versus Union of India and others Respondents. Dr. Khundongbam Chetan Appellant versus Union of India and others Respondents., As common questions of law and fact arise in this group of writ petitions and special leave petitions, they are being disposed of by this common order., For convenience, Writ Petition (C) No. 409 of 2022, Dr. Astha Goel and others versus the Medical Counselling Committee and others, is treated as the lead matter. By way of this writ petition, the seven petitioners pray for the following reliefs: (a) issue an appropriate writ, order or direction in the nature of a writ of mandamus under Article 32 of the Constitution of India to direct Respondent No. 1 to provide the exact number of vacant seats after the conduct of the stray vacancy round of All India Quota; (b) issue an appropriate writ, order or direction in the nature of a writ of mandamus under Article 32 of the Constitution to direct Respondent No. 1 to conduct a special stray round of counselling to allow the candidates to participate for the vacant seats which are available after the conduct of the stray vacancy round., In Writ Petition (C) No. 393 of 2022, an additional prayer is made to issue an appropriate writ, direction or order directing Respondents No. 1 and 2, the Medical Consulting Committee and the Union of India, to revert the medical postgraduate seats remaining vacant after the All India Quota stray vacancy round of the NEET‑PG‑2021 examination to the State Quotas, for being allotted through State mop‑up rounds., The petitioners of Special Leave Petition (C) No. 10395 of 2022 and Special Leave Petition (C) No. 10539 of 2022 approached the respective High Courts of India for the very reliefs now sought in the aforesaid writ petitions, namely directing the respondents to conduct a special stray round of counselling so as to allow them to participate for the vacant seats available after the stray vacancy round of All India Quota. By the impugned orders, the respective High Courts dismissed the writ petitions; consequently the original writ petitioners preferred the present special leave petitions., The dispute concerns admissions for NEET‑PG‑2021. Around 40,000 seats were available for the NEET‑PG examination, including clinical and non‑clinical seats. Initially 92,000 candidates/doctors were eligible for the said seats; subsequently, by a communication dated 12 May 2022, the percentage was lowered and another 25,000 candidates became eligible., The NEET‑PG examination was conducted on 11 September 2021 and the result declared on 28 September 2021. Under the earlier counselling scheme there were two rounds of counselling for All India Quota seats and State Quota seats respectively. Under the modified counselling scheme, counselling was to be carried out in four rounds and no seats were to be reverted to the States. The four rounds were All India Quota Round 1, All India Quota Round 2, All India Quota Mop‑up Round and All India Quota Stray Vacancy Round. For NEET‑PG‑2021, Round 1 was held on 12 January 2022, Round 2 on 5 February 2022, the Mop‑up Round on 14 April 2022 and the final Stray Round started on 28 April 2022 and ended on 7 May 2022. At the end of the four rounds of counselling for both All India Quota and State Quota, and thereafter one additional round, approximately 1,456 seats remained vacant., The petitioners, who earlier participated in all the counselling rounds and could not obtain admissions, have now approached this Court by way of the present writ petitions and special leave petitions praying for a special stray round of counselling with respect to the remaining 1,456 vacant seats and to be allowed to participate for those seats., Ms. Rachna Shrivastava, learned Senior Advocate, appeared on behalf of the writ petitioners of Writ Petition (C) No. 409 of 2022; Shri A. D. N. Rao, learned Senior Advocate, appeared on behalf of the petitioner in Special Leave Petition (C) No. 10395 of 2022; Shri Avijit Mani Tripathi, learned counsel, appeared on behalf of the petitioner in Special Leave Petition (C) No. 10539 of 2022; and Shri Kunal Cheema, learned counsel, appeared on behalf of the writ petitioner in Writ Petition (C) No. 393 of 2022. Shri Balbir Singh, learned Additional Solicitor General, appeared on behalf of the Union of India and Shri Gaurav Sharma, learned counsel, appeared on behalf of the Medical Counselling Committee as well as the National Board of Examinations., The learned senior advocates and counsel appearing on behalf of the petitioners submitted the following points: (i) a total of 1,456 seats have remained vacant for NEET‑PG‑2021, and the wastage of these seats hampers the interests of both colleges and candidates; (ii) the petitioner‑candidates are ready to take admission to any of the vacant seats; (iii) due to the abrupt addition of seats in NEET‑PG‑2021, an additional round of counselling for 146 seats was conducted pursuant to an order of this Court, and the Mop‑up round was cancelled and directed to be reconducted, so the point of four counselling rounds cannot be raised when additional rounds were already conducted because of severe glitches; (iv) among the 1,456 vacant seats many are clinical seats, so it is incorrect to say that the vacant seats are only paramedical; (v) the vacancies arose due to non‑joining, resignation and candidates not reporting, and it was the duty of the respondents to fill those posts from among the remaining candidates; (vi) it is the duty of the Medical Counselling Committee to conduct an additional round in view of the large number of vacant seats; (vii) closing the software before filling those seats is not justifiable; even if the software is closed, a mechanism can be developed to fill the vacant seats given the gravity and urgency; (viii) the submission that the candidates have already been refunded the amount is not a ground to refuse an additional round of counselling; (ix) the candidates for NEET‑PG‑2021 and NEET‑PG‑2022 are different, and many candidates who participated in the 2021 counselling did not register for 2022, which closed on 25 March 2022, leaving no room for them to appear for NEET‑PG‑2022; (x) the candidates cannot be replaced across the two years, and the 1,456 seats can only be filled through a merit‑based competition for NEET‑PG‑2021; (xi) granting admission now will not affect the education of the candidates, as classes for NEET‑PG‑2021 had started well before the first counselling batch, and three Mop‑up rounds have already been conducted with the last admission on 7 May 2022, allowing the students admitted now to complete their full studies. The petitioners therefore pray that the respondents be directed to conduct a special stray round of counselling as a one‑time measure and as a special case., The present writ petitions and special leave petitions are vehemently opposed by Shri Balbir Singh, learned Additional Solicitor General, on behalf of the Union of India, and Shri Gaurav Sharma, learned counsel, on behalf of the Medical Counselling Committee. A counter‑affidavit is filed on behalf of Respondents No. 1 and 3, the Union of India/Director General of Health Services., Shri Balbir Singh submits that the dispute relates to NEET‑PG‑2021 seats and that four rounds of counselling for both All India Quota and State Quota have been completed, leaving only 1,456 seats vacant after nine rounds of counselling. Approximately 1,100 of those seats are for non‑clinical courses and the remainder are private‑college clinical seats, which usually remain vacant each year as they are no‑takers. He argues that even after an additional round of counselling, many seats would remain vacant and that an endless exercise of counselling cannot be undertaken. He further observes that the postgraduate clinical courses are three‑year programmes and more than one year has already elapsed, making mid‑term admissions untenable, especially as the admission process for NEET‑PG‑2022 has begun and counselling for 2022 is to start in July 2022; therefore a conscious decision has been taken not to conduct another special stray round. He also states that after the last round ended on 7 May 2022, the software mechanism was closed and the security deposit refunded. A significant proportion of the vacant seats are non‑clinical no‑taker seats, which annually remain vacant. He cites the decision of this Supreme Court of India in Education Promotion Society for India and Others v. Union of India and Others (2019) 7 SCC 38, where the Court held that the mere existence of vacant seats is not a ground to grant an extension of time or further counselling, as it would open Pandora's box and defeat the purpose of a fixed schedule. Shri Gaurav Sharma, learned counsel for the Medical Counselling Committee and the National Board of Examinations, also relied on Supreet Batra and Others v. Union of India and Others (2003) 3 SCC 370, observing that even if some seats remain vacant, students cannot be admitted mid‑term. Accordingly, they pray that the present writ petitions and special leave petitions be dismissed., The learned counsel for the respective parties were heard at length., It is noted that the dispute concerns NEET‑PG‑2021 and that the time schedule for the approved counselling was fixed pursuant to directions of this Supreme Court of India. Ordinarily, the first round of postgraduate counselling begins in March and the academic session starts in May. However, the NEET‑PG‑2021 examination was delayed due to the third wave of the COVID‑19 pandemic and various litigations concerning the 27 percent OBC reservation in All India Quota seats., As per the earlier counselling policy, only two rounds of counselling were held for All India Quota and State Quota seats. The modified scheme, submitted in Special Leave Petition (C) No. 10487 of 2021 and approved by this Supreme Court of India, provided for four rounds of counselling for each quota, followed by an additional round when approximately 146 seats were added. The NEET‑PG‑2021 counselling commenced on 12 January 2022 and after completion of the four rounds for both quotas, out of 40,000 seats, 1,456 remained vacant, of which more than 1,100 are non‑clinical seats in private institutions. The petitioners seek admission to these vacant seats and request a special stray round of counselling. The respondents contend that the seats cannot be filled after approximately one year of the academic session and after eight or nine rounds of counselling., The Court refers to its earlier decisions in Supreet Batra and Others and Education Promotion Society for India and Others. In Supreet Batra, the Court held that even if some seats remain vacant, students cannot be admitted mid‑term and that altering the scheme each year to fill vacancies would lead to an endless process, defeating the purpose of achieving broad‑based equality rather than mathematical exactitude. In Education Promotion Society, the Court observed that a large number of non‑clinical seats remain vacant each year because many graduate doctors do not wish to pursue non‑clinical postgraduate courses, and that merely because seats are vacant is not a ground to grant an extension of time or further counselling, as it would open Pandora's box and defeat the schedule., Applying the law laid down in the aforesaid decisions to the facts of the present case, the Medical Counselling Committee and the Union of India are bound to adhere to the time schedule for completing the admission process. The conscious decision not to conduct a further special stray round of counselling is not arbitrary and is in the interest of medical education and public health. The admission process cannot be endless; adherence to the schedule is essential to avoid adverse effects on medical education and public health., In view of the above, the petitioners are not entitled to any relief of mandamus directing the respondents to conduct a special stray round of counselling for the remaining vacant seats of NEET‑PG‑2021. Granting such relief now may affect medical education and ultimately public health. Accordingly, both writ petitions and the special leave petitions are dismissed. No order as to costs is made.
id_861	0	This is a case where a poor father, whose son has been killed or alleged to be murdered, has approached the Supreme Court of India for an appropriate order directing the H & B Criminal Investigation Department, Bengaluru (Respondent No.5) to transfer the further investigation in Crime Case No. 65 of 2014 registered with Panambur Police Station, Mangaluru, Karnataka to the Central Bureau of Investigation, Bengaluru, Karnataka., Pursuant to the earlier order passed by the Supreme Court of India dated 26 September 2022, Respondent No.5 Criminal Investigation Department, Bengaluru (Investigating Agency), which was directed to further investigate the matter, has submitted the status report. From the report, it appears that, except for obtaining further expert opinion from the Department of Forensic Medicine and Toxicology, Bangalore Medical College and Research Institute, Bangalore, no further investigation has been carried out. On the contrary, an abated charge‑sheet has been filed against the deceased for the offence under Sections 279 and 304(A) of the Indian Penal Code read with Section 185 of the Motor Vehicles Act. It is unheard of that an abated charge‑sheet can be filed against the deceased who is alleged to have been murdered or killed. Even otherwise, on prima facie consideration of the relevant material on record, particularly the photographs produced along with the writ petition, it appears prima facie that it is not a case of simple accident as opined by the Investigating Agency. We are not at all satisfied with the further investigation carried out by the Investigating Agency, Criminal Investigation Department, Bengaluru. The truth must come out after thorough and proper investigation by the Investigating Agency. In the present case, the Investigating Agency, Criminal Investigation Department, Bengaluru has failed to perform its duty by not thoroughly investigating the case and trying to find out the truth., Under the circumstances, this is a fit case to exercise the powers under Article 32 of the Constitution and to transfer the investigation of the case to the Central Bureau of Investigation, Bengaluru. In view of the above and for the reasons stated, the present writ petition stands allowed. The Investigating Agency H & B Criminal Investigation Department, Bengaluru is hereby directed to transfer the investigation in Crime Case No. 65 of 2014 registered with Panambur Police Station, Mangaluru to the Central Bureau of Investigation, Bengaluru, Karnataka, and the Central Bureau of Investigation, Bengaluru, Karnataka is hereby directed to conduct the further investigation. The Central Bureau of Investigation is hereby directed to submit a periodical status report before the High Court every two months on the further investigation carried out. The Central Bureau of Investigation, Bengaluru, Karnataka is expected to conclude the investigation as early as possible, considering that the incident occurred in 2014 and the petitioner‑father of the deceased is waiting for justice. The present Investigating Agency is directed to hand over the entire records of the case to the Central Bureau of Investigation, Bengaluru within a period of two weeks from today, after receiving the same back from the concerned court. Having been satisfied that there is no proper investigation on the allegation of murder or the deceased being killed, we set aside the abated charge‑sheet filed against the deceased for the offence under Sections 279 and 304(A) of the Indian Penal Code read with Section 185 of the Motor Vehicles Act. However, all material collected during the investigation shall be transferred to the Central Bureau of Investigation, Bengaluru as ordered hereinabove., The writ petition is, accordingly, allowed with costs quantified at Rupees one lakh (Rs. 1,00,000) to be paid by the Criminal Investigation Department, Bengaluru to the petitioner within a period of four weeks from today. New Delhi; 3 November 2022. Writ Petition (Criminal) No. 347/2022 dated 3 November 2022. This petition was called on for hearing today., For petitioner: Mr. Jogy Scaria, Advocate on Record Ms. Beena Victor, Advocate Mr. Ravi Lomod, Advocate Mr. Keerthipriyan E., Advocate Ms. Varsha Awana, Advocate Mr. Vinoth Yadav. For respondent: Mr. Shubhranshu Padhi, Advocate on Record Mr. Vishal Bansal, Advocate Mrs. Rajeshwari Shankar, Advocate Mr. Niroop Sukirthy, Advocate Mr. Mohd. Ovais. Upon hearing the counsel, the Supreme Court of India made the following., The writ petition is allowed with costs quantified at Rupees one lakh (Rs. 1,00,000) to be paid by the Criminal Investigation Department, Bengaluru to the petitioner within a period of four weeks from today in terms of the signed order. The pending application stands disposed of. (Signed order is placed on the file).
id_862	0	Judgment reserved on 03.12.2021. Judgment delivered on 10.12.2021. Petitioner: Ritesh Sidhwani and another. Respondent: State of Uttar Pradesh and two others. Counsel for petitioner: Syed Imran Ibrahim. Counsel for respondent: Government Advocate, Rahul Mishra, along with petitioner: Karan Anshuman and three others. Respondent: State of Uttar Pradesh and two others. Counsel for petitioner: Syed Imran Ibrahim. Counsel for respondent: Government Advocate. Honourable Justice Mahesh Chandra Tripathi, Judge. Honourable Justice Subhash Vidyarthi, Judge (delivered by Honourable Justice Subhash Vidyarthi, Judge)., The Honourable Justice Subhash Vidyarthi, Judge, heard Sri Gopal Swaroop Chaturvedi, learned Senior Advocate assisted by Sri Imran Ibrahim, learned counsel for the petitioners in Writ Petition No. 851 of 2021, and Sri Manish Tiwari, learned Senior Advocate assisted by Sri Imran Ibrahim, learned counsel for the petitioners in Writ Petition No. 1665 of 2021, Sri Rahul Mishra, learned counsel for the informant/respondent No. 3, and Sri Arunendra Kumar Singh, learned Additional Government Advocate appearing for the respondent State of Uttar Pradesh. Writ Petition No. 851 of 2021 is being treated as the leading case., In both writ petitions, pleadings have been exchanged and, with the consent of the parties, Writ Petition No. 851 of 2021 and Writ Petition No. 1665 of 2021 are being decided by a common judgment as both writ petitions seek quashing of the First Information Report in Case Crime Number 0016 of 2021, under Sections 295-A, 504, 505 and 34 of the Indian Penal Code and Section 67-A of the Information Technology Act, filed at Police Station Kotwali Dehat, District Mirzapur, by one Arvind Chaturvedi, who is respondent No. 3 in both writ petitions, against the petitioners, one Bhowmik Gondaliya and the OTT platform company Amazon Prime. The Allahabad High Court has accorded interim orders on 29.01.2021 (Criminal Revision Law Petition 851 of 2021) and 18.02.2021 (Criminal Revision Law Petition 1665 of 2021). For ready reference, the order dated 18.02.2021 is quoted as follows:, Sri Manish Tiwari, Senior Counsel assisted by Sri Syed Imran Ibrahim, Sri Jay Kumar Bhardwaj and Ms. Priyadarshini Arora, learned counsels for the petitioners, and Sri J.K. Upadhyay, learned Additional Government Advocate for the State, were present. This writ petition has been filed by the petitioners seeking quashing of the First Information Report dated 17.01.2021 in respect of Crime No. 0016 of 2021 for the offence under Section 295-A, 504, 505, 34 of the Indian Penal Code and Section 67-A of the Information Technology Act, Police Station Kotwali Dehat, District Mirzapur. Issue notice to respondent No. 3. Steps by 22.02.2021. Failure to take steps shall lead to automatic vacation of this order., The stay application was heard. Learned counsel for the petitioners submits that two co-accused persons, namely Ritesh Sidhwani and Farhan Akhtar, have filed Criminal Miscellaneous Writ Petition No. 851 of 2021 before the Allahabad High Court and, while entertaining their petition, an interim order was passed in their favour on 29.01.2021. It has been argued that petitioner No. 1 was the director and writer of the first season of the web series Mirzapur, petitioner No. 2 was the director of the first and second seasons of the web series Mirzapur, petitioner No. 3 was the writer of the second season of the web series Mirzapur and petitioner No. 4 was the writer of the first season of the said web series Mirzapur. It has been further argued that the petitioners have not been named in the First Information Report and they are on a better footing compared to the named accused persons in the First Information Report. Learned counsel submits that even if the entire prosecution case is taken as it is, the offence under Section 295-A, 504, 505, 34 of the Indian Penal Code and Section 67-A of the Information Technology Act is not made out. On the other hand, State counsel, though opposing the writ petition, is not in a position to dispute the fact that in the case of co-accused, interim protection has been granted., Having regard to the facts of the case and the submissions made, till the next date of listing or till submission of police report under Section 173(2) of the Criminal Procedure Code, whichever is earlier, no coercive action shall be taken against the petitioners in pursuance of the First Information Report registered as Case Crime No. 0016 of 2021, under Sections 295-A, 504, 505, 34 of the Indian Penal Code and Section 67-A of the Information Technology Act, Police Station Kotwali Dehat, District Mirzapur. It is made clear that the investigation shall continue and the petitioners shall cooperate in the investigation; non‑cooperation may give the State reason to file an application seeking vacation of the interim order. The party shall file a computer‑generated copy of this order downloaded from the official website of the Allahabad High Court, self‑attested by the petitioner(s) along with a self‑attested identity proof of the said person(s) (preferably Aadhaar Card) mentioning the mobile number(s) to which the Aadhaar Card is linked. The concerned authority shall verify the authenticity of such computerized copy of the order from the official website of the Allahabad High Court and shall make a declaration of such verification in writing., The allegations levelled in the First Information Report against the accused persons Ritesh Sidhwani, Farhan Akhtar, Bhaumik Gondaliya and the OTT platform company Amazon Prime are that Mirzapur is the place of Goddess Vindhyavasini, which is the centre of belief and inspiration for the entire world, and that the informant is a native resident of Mirzapur. Recently the informant came to know that a series titled ‘Mirzapur’ is being web‑cast on the OTT platform Amazon Prime and, when he watched some episodes, he was shocked because, contrary to his expectations, Mirzapur is presented as an anti‑social and criminal place depicting illicit family relations, abusive language and caste‑based animosity. False and vitiated depiction of the courts, advocates and even the judicial system is also shockingly portrayed. Small video clips taken from this web series are also available on Facebook, Instagram and many other social media platforms. Besides being far away from the social structure and normal life of the common man of Mirzapur, the entire series hurts the religious, social and regional feelings of the informant and it spreads hatred and a corrupt mindset in society., Ritesh Sidhwani, Farhan Akhtar and Bhaumik Gondaliya are the executive producers of the web series and their company Excel Entertainment has entered into an agreement with Amazon. The team, consisting of such established and reputed persons, ought to have produced the web series very thoughtfully. The dialogues and story of the web series have hurt the religious, social and regional sentiments of the informant, and some of the informant’s friends have started calling him “kaleen bhaiya”, who has been shown as a mafia don involved in the trade of domestically made pistols. Two seasons of the aforesaid web series have already been web‑cast and the third season has been announced; the informant believes that, in continuation of the earlier two seasons, it will also depict a story that would hurt his sentiments., Writ Petition No. 851 of 2021 has been filed by the petitioners Ritesh Sidhwani and Farhan Akhtar on the grounds that the contents of the First Information Report are more of a general opinion of the informant and a bare reading thereof does not make out any offence. The petitioners have the fundamental right of freedom of speech, and the web series has been produced in exercise of that fundamental right. The First Information Report has been lodged after an inordinate delay which has not been explained. Each episode of the web series begins with a disclaimer and the web series is not available to the general public at large; it can be accessed only by subscribers of the Amazon Prime Video service., The first informant has filed a counter‑affidavit in which he inter‑alia pleaded that the petitioners have chosen the name of a sacred town to display violence, nudity, incest, lawlessness, disregard to the judicial system, filthy abuses, sexual content, involving a character with his daughter‑in‑law, etc., in the name of art and thus have deliberately brought disrepute and disrespect to the sacred town, outraging the religious feelings of a class of people, which tends to spread hatred amongst communities and is a big threat to public disorder, just in the name of art. He stated that things would have been fine if the petitioners had chosen a fictional name for the town and the title of their web series., The State has also filed a counter‑affidavit inter‑alia stating that District Mirzapur is an old famous city of Mata Vindhyavasini Dham and, in the web series Mirzapur, the name of District Mirzapur has been used at different places. In the aforesaid web series, illicit family relationships have been shown and false information regarding advocates as well as the judicial system has been featured, which clearly insulted the feelings of a class of citizens. The counter affidavit records statements of a few people who said that the web series has insulted the regional and religious sentiments of the people of Mirzapur in general and the Tripathi family in particular. The web series showed illicit relationships and made use of abusive language. A Brahmin family has been targeted to defame the Brahmin Samaj. Although a statutory warning has been shown in the web series, several short clips are available on different social media platforms including Facebook and Instagram, and persons accessing the series on those platforms are not able to see the statutory warning., An interim order was passed by the Division Bench of the Allahabad High Court in Writ Petition No. 851 of 2021 on 29.01.2021 to the effect that, till the next date of listing or till submission of police report under Section 173(2) of the Criminal Procedure Code, whichever is earlier, no coercive action shall be taken against the petitioners in pursuance of the First Information Report registered as Case Crime No. 0016 of 2021, under Sections 295-A, 504, 505, 34 of the Indian Penal Code and Section 67-A of the Information Technology Act, Police Station Kotwali Dehat, District Mirzapur., Writ Petition No. 1665 of 2021 was filed on 09‑02‑2021 by Karan Sharma, the director of the first season of the web series Mirzapur; Gurmeet Singh, the director of the second season of the web series Mirzapur; Puneet Krishna, the writer of the second season of Mirzapur; and Vineet Krishna, the writer of the first season of the series Mirzapur, challenging the same First Information Report in Case Crime Number 0016 of 2021 under Sections 295, 504, 505, 34 of the Indian Penal Code and Section 67-A of the Information Technology Act, Police Station Kotwali Dehat, District Mirzapur, inter‑alia pleading that when the Allahabad High Court passed an interim order dated 29‑01‑2021 in Writ Petition No. 851 of 2021 providing that no coercive action shall be taken against the petitioners in that writ petition, the investigating officer enlarged the scope and ambit of the investigation and issued notices to the petitioners in Writ Petition No. 1665 of 2021 stating that they are also accused in the case., Shri G.S. Chaturvedi, learned Senior Advocate, submitted that Section 295-A of the Indian Penal Code does not stipulate everything or anything which offends the religious, regional and social sentiments of the informant to be an offence. Section 295-A penalises only those acts of insult or attempts to insult the regional or religious belief of a class of citizens which are perpetrated with deliberate and malicious intention of outraging the religious feelings of that class of citizens. A disclaimer is shown at the beginning of each episode, which reads: “This program is made solely for viewer entertainment and is a work of fiction. Names, characters, businesses, places, events and incidents are either the author’s imagination or used in a fictitious manner. Any resemblance to actual persons, living or dead, or actual events is purely coincidental. No dialogue or character in the program is intended to offend the sentiments of any individual, caste, community, race or religion or to denigrate any institution or person, living or dead. Amazon India does not endorse or bear responsibility for any content shown or the views expressed in this program. Viewer discretion advised.”, He submitted that the purpose of Section 295-A of the Indian Penal Code is to curb speech made with malicious intent and not every offensive speech. Criminality does not include insult to religion offered unwittingly, carelessly or without deliberate or malicious intention to outrage religious feelings. Only an aggravated form of insult to religion, when perpetrated with deliberate and malicious intent to outrage the religious feelings of a class, is an offence., Shri Chaturvedi submitted that for the provisions of Section 67-A of the Information Technology Act to be attracted, the material published must contain a sexually explicit act or conduct, whereas no sexually explicit act has been shown in the web series Mirzapur and no such allegation has been levelled in the First Information Report., The web series portrays the life of a particular family which, as per the disclaimer shown at the start of each episode, is the product of the author’s imagination. The tone and tenor of the dialogues reflect locally and habitually used nuances in such families, which include explicits used for force and effect in normal common parlance. These explicits are not intended to be taken literally. There is nothing sensual or sexual in these expressions; they are used in the ordinary and habitual course of language in such families to convey anger, frustration and the like., Shri Manish Tiwari, learned Senior Advocate appearing for the petitioners in Writ Petition No. 1665 of 2021, submitted that the web series Mirzapur is a crime drama depicted in a fictional manner. It is in no way related to any religious community and does not insult any religious community so as to incite any class or community of persons to commit any offence against any other class or promote enmity between different groups on the ground of religion. The impugned First Information Report does not disclose the commission of any offence. The First Information Report was registered at about midnight at 23:27 hours in a routine and perfunctory manner without any application of mind and without holding a preliminary inquiry mandated by the Honourable Supreme Court in the case of Lalita Kumari v. Government of Uttar Pradesh., It has been contended on behalf of the petitioners that the depictions made in the web series do not make out any offence whatsoever under the laws of the country and neither mens rea nor actus reus can be attributed to the petitioners. It is the personal opinion of the informant that the impugned content is anti‑social and infested with crime, promotes illicit relationships, uses abusive language and portrays a wrong and polluted picture of the legal and judicial system in a whimsical, hypothetical and unsubstantiated fashion. Even if the allegations are taken to be true, no offence is made out against the petitioners. The impugned First Information Report is a direct attack on the fundamental right of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India., The allegations levelled in the impugned First Information Report regarding the contents of the web series hurting religious, social and regional sentiments of any particular community must be ascertained from the point of view of a reasonable person of ordinary prudence by applying the community‑standard test and cannot be judged in an isolated manner., Per contra, Sri Rahul Mishra, Advocate, learned counsel for the informant, submitted that the First Information Report prima facie discloses commission of a cognizable offence which needs to be fairly investigated without any intervention by the Allahabad High Court. He submitted that there is no censorship for material displayed on OTT platforms. Children have access to all kinds of media and therefore it needs to be regulated to prevent breach of boundaries, otherwise, as in the present case, it amounts to commission of a crime against society at large., He further submitted that merely showing a disclaimer at the start of the episode or restricting viewers does not absolve the makers from acting responsibly; if it was a work of fiction, why was the series named Mirzapur—a district in the State of Uttar Pradesh—when they could have opted for a fictional name. Moreover, depicting a resident of Mirzapur—a district known for its religious fervour, particularly for having Vindhyavasini Dham, a prominent Shakti Dham and place of worship for Hindus—as a goon, vagabond and adulterer who practices nudity, vulgarity and abusive language is a culpable act. In doing so, the petitioners, with full knowledge and intent, committed deliberate and malicious acts intending to outrage the religious feelings of a class of people, thereby committing an offence under Section 295-A of the Indian Penal Code, which is a cognizable and non‑bailable offence., Shri Arunendra Kumar Singh, learned Additional Government Advocate appearing for the State of Uttar Pradesh, submitted that the averments made in the First Information Report make out a case of commission of a cognizable offence and the Allahabad High Court should not interfere and quash the First Information Report in exercise of power under Article 226 of the Constitution of India., In State of Haryana v. Bhajan Lal, the Honourable Supreme Court laid down the guidelines for exercise of the extraordinary powers under Article 226 for quashing a First Information Report in the following words: “(1) Where the allegations made in the First Information Report or the complaint, even if taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Criminal Procedure Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non‑cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any provision of the Code or the concerned Act to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide or where the proceeding is maliciously instituted with an ulterior motive for vengeance on the accused and with a view to spite him due to private and personal grudge.” The Allahabad High Court also noted that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection., The Allahabad High Court has to examine the impugned First Information Report in light of the aforesaid guidelines to ascertain whether it is liable to be quashed. It would be apt to have a glance at Section 295-A of the Indian Penal Code, which reads as follows: “Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. For attracting an offence as defined under Section 295-A IPC, the act must have been done with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India.”, In Mahendra Singh Dhoni v. Yerraguntla Shyamsundar and another, the Honourable Apex Court held: “On a perusal of the aforesaid passages, it is clear as crystal that Section 295-A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of a class of citizens. It penalises only those acts of insult or attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. The Constitution Bench has further clarified that the provision only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.”, In Ramji Lal Modi v. State of Uttar Pradesh, the Honourable Apex Court was pleased to hold that Section 295-A does not penalise any and every act of insult or attempt to insult the religion or the religious beliefs of a class of citizens but penalises only those acts of insult or attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class., In Amish Devgan v. Union of India and Others, it was held: “In Arun Ghosh, it was held that a line of demarcation has to be drawn between serious and aggravated forms of breaches of public order which affect life of the community or forms of breaches of public order which endanger the public interest at large, from minor breaches of peace which do not affect the public at large. Acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity do not subvert public order, but are law and order issues. Referring to Ram Manohar Lohia case, it was observed that similar acts in different context may affect law and order in one case and public order in the other. It is always the degree of harm and its effect on the community. The test which is to be examined in each case is whether the act would lead to disturbance of the current life of the community so as to amount to disturbance of public order, or does it affect merely an individual leaving the tranquillity of the society undisturbed. The latter is not covered under and restriction must meet the test of ordre publique affecting the community in the locality.”, A perusal of the impugned First Information Report indicates that the grievance of the petitioner is that in the web series Mirzapur the name of the city Mirzapur has been used and an anti‑social and criminal picture of the city has been presented by depicting illicit family relations, abusive language and caste‑based animosity which is far away from the social structure and normal life of the common man of Mirzapur., There is no allegation in the entire First Information Report that any content shown in the Series portrays any particular religion in a bad light and which can possibly hurt the religious feelings of a class of citizens. Even as per the averments made in the First Information Report, it is the informant alone whose religious, social and regional sentiments have been hurt by the web series and not those of any class of citizens. There is nothing on record to indicate that besides the informant, the religious beliefs of any class of citizens were hurt by the web series Mirzapur and what to say about the same having been done with deliberate and malicious intention., Upon a specific query being made from the learned counsel for the informant as well as the learned Additional Government Advocate appearing for the State, they could not point out any other complaint, First Information Report, resentment or agitation of any form having been made by any class of citizens showing that the web series has outraged their religious feelings. Examining the facts of the present case in the light of the law as explained by the Honourable Supreme Court, the Allahabad High Court is satisfied that there is no allegation to make out a case that the petitioners have, with a deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, insulted or attempted to insult the regional or the religious beliefs of that class through the Web Series Mirzapur so as to make it an offence punishable under Section 295-A of the Indian Penal Code., The First Information Report also mentions Section 504 and Section 505(2) of the Indian Penal Code, which are as follows: 504. Intentional insult with intent to provoke breach of the peace. Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 505. Statements conducing to public mischief. (2) Statements creating or promoting enmity, hatred or ill‑will between classes. Whoever makes, publishes or circulates any statement or report containing rumor or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill‑will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both., There is no allegation in the First Information Report to make out a case that the petitioners have intentionally insulted and thereby given provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence.
id_862	1	Further, there is no allegation that by making the series Mirzapur the petitioners, with intent to create, on grounds of religion, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill‑will between different religious, racial, language or regional groups or castes or communities. In Amish Devgan versus Union of India (Supra), the Honourable Supreme Court of India has explained the law relating to Sections 295A and 505 of the Indian Penal Code as follows: The two provisions have been interpreted earlier in a number of cases including Ramji Lal Modi, Kedar Nath and Bilal Ahmed Kaloo. Section 295A of the Indian Penal Code encapsulates all three elements, namely the content‑based element when it refers to words either spoken or written, or by signs or visible representation or otherwise. However, it does not on the basis of content alone make a person guilty of the offence. The first portion refers to deliberate and malicious intent on the part of the maker to outrage religious feeling of any class of citizens of India. The last portion of Section 295A refers to the harm‑based element, that is, insult or attempt to insult religions or religious belief of that class. Similarly, sub‑section (2) to Section 505 refers to a person making, publishing or circulating any statement or report containing rumor or alarming news. Thereafter, it refers to the intent of the person which should be to create or promote and then refers to the harm‑based element, that is, likely to create or promote on the ground of religion, race, place of birth, residence, language, caste, etc., feeling of enmity, hatred or ill‑will between different religions, racial, language, religious groups or castes or communities., In Bilal Ahmed Kaloo, this Court drew a distinction between sub‑section (2) of Section 505 and clause (a) of Section 153A(1) of the Indian Penal Code, observing that publication is not necessary in the latter while it is sine qua non under sub‑section (2) of Section 505. Sub‑section (2) of Section 505 of the Indian Penal Code cannot be interpreted disjunctively and the words ‘whosoever makes, publishes or circulates’ are supplemented to each other. The intention of the legislature in providing two different sections on the same subject by a single amending Act shows that they cover two different fields of the same colour. Clauses (a) and (b) to sub‑section (1) of Section 153A use the words ‘promotes’ and ‘likely’ respectively. Similarly, Section 295A uses the word ‘attempts’ and sub‑section (2) to Section 505 uses the words ‘create or promote’. The word ‘likely’, as explained above, conveys that the chance of the event occurring should be real and not fanciful or remote. The standard of ‘not improbable’ is too weak and cannot be applied as it would infringe upon reasonable restriction and the test of proportionality. This is the mandate flowing from the catena of judgments of the Constitution Benches referred to earlier and also the decision in Shreya Singhal, which draws a distinction between advocacy, discussion and incitement, and holds that only incitement is punishable whereas the former two fall within the domain of freedom to express and convey one’s thoughts and ideas., Incitement is a restricted term under the American Speech Law, which has been adopted by us, and as per Brandenburg applies when the incitement is imminent or almost inevitable. There has been some criticism that the test is too strong; nevertheless, it conveys that the standard must be strict. Instigation must necessarily and specifically be suggestive of the consequences. Sufficient certainty to incite the consequences must be capable of being spelled out to constitute incitement. It is for the prosecution to show and establish that the standard has been breached by leading evidence, which can be both oral and documentary. ‘Promote’ does not imply merely describing and narrating a fact, or giving opinion, criticizing the point of view or actions of another person; it requires that the speaker actively incite the audience to cause public disorder. This active incitement can be gauged by the content of the speech, the context and surrounding circumstances, and the intent of the speaker. However, if the speaker does not actively incite descent into public disorder and is merely pointing out why a certain person or group is behaving in a particular manner, what are their demands and their point of view, or when the speaker interviews such person or group, it would be a passive delivery of facts and opinions which may not amount to promotion., The allegations made in the First Information Report do not make out any case under Section 67A of the Information Technology Act, which reads as follows: ‘67A. Punishment for publishing or transmitting material containing sexually explicit act, etc., in electronic form. Whoever publishes or transmits or causes to be published or transmitted in electronic form any material which contains a sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees, and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.’ The First Information Report alleges that illicit relations amongst family members have been shown in the web series, but there is no allegation that a sexually explicit act or conduct has been shown. It is settled law of interpretation of statutes that while interpreting any provision, neither any word can be added nor can it be ignored. This principle is applicable in a more stringent manner while examining the provisions of a penal law. Therefore, no word can be ignored from the phrase ‘sexually explicit act or conduct’ occurring in Section 67A, and if the act or conduct shown in the series does not contain a sexually explicit act and shows the same only in an implied manner, it would not attract the provisions of Section 67A of the Information Technology Act., In view of the foregoing discussion, the Honourable Supreme Court of India is satisfied that as per the averments made in the impugned First Information Report, no offence under Sections 295A, 504 and 505 of the Indian Penal Code and Section 67A of the Information Technology Act is made out., The present case falls under categories (1) and (3) mentioned in paragraph 102 of the judgment of the Honourable Supreme Court of India in the case of State of Haryana versus Bhajan Lal (Supra) and it is liable to be quashed., Accordingly, both Writ Petitions Nos. 851 of 2021 and 1665 of 2021 are allowed. The First Information Report dated 17 January 2021, registered as Case Crime No. 0016 of 2021, under Sections 295A, 504, 505 and 34 of the Indian Penal Code and Section 67A of the Information Technology Act in Police Station Kotwali Dehat, District Mirzapur is hereby quashed.
id_863	0	Khalil Abbas Fakir, Applicant; Tabbasum Khalil Fakir @ Tabbasum Gulam Husain Ghare & Anr., Respondents. Ms. Shaheen Kapadia as well as Ms. Mahenoor Khan, Mr. Irfan Unwala in behalf of Ms. Vrushali Maindad for the Applicant. Mr. Saurabh Butala as well as Adv. P. V. Shekhawat, Ms. Shagufa Patel, Ms. Swati Khot, Ms. Nitita Mandaniyan for the Respondents. Ms. S. S. Kaushik, APP for the State., By consent of the parties, the matter is taken up for final disposal at the admission stage., This criminal revision application has been filed by the applicant (husband) challenging the concurrent findings recorded by the Judicial Magistrate First Class, Chiplun and the Sessions Court, Khed, Ratnagiri. The applicant (husband) and the respondent No. 1 (wife) got married on 9 February 2005. At the time of the marriage it was the applicant's second marriage and the respondent's first marriage. From the said wedlock a daughter, Mehvish, was born on 1 December 2005 at Chiplun, Ratnagiri., Shortly after the daughter was born, the husband, for the purpose of better earning, went to Saudi Arabia while the wife and the daughter stayed back at Chiplun, Ratnagiri and were staying with the parents of the husband. It is the case of the husband that thereafter, in June 2007, the wife along with the daughter left the matrimonial house and started residing with her parents in Chiplun, Ratnagiri., The wife subsequently filed a criminal Miscellaneous Application No. 81 of 2007, claiming maintenance for herself under the provisions of Section 125 of the Code of Criminal Procedure, 1973. After the said proceedings were served upon the husband, he gave divorce (Talaq) on 5 April 2008 by registered post to the wife, during the pendency of the maintenance application filed by the wife under Section 125 of the Code of Criminal Procedure., On 30 June 2009, the Judicial Magistrate First Class, Chiplun dismissed the application of maintenance filed by the wife. In the year 2012, the wife filed a Criminal Miscellaneous Application No. 143 of 2012, seeking maintenance for the daughter Mehvish under Section 125 of the Code of Criminal Procedure. The wife also filed an application under Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter MWPA), thereby claiming reasonable and fair provision and maintenance to be paid to her, which was Criminal Miscellaneous Application No. 144 of 2012., On 20 August 2014, an order of maintenance was passed in the application filed for daughter Mehvish, directing the husband to pay a sum of Rs.3,000 to the daughter. The parties have admitted that the said order has been complied with as of today., The husband filed his reply to the application filed by the wife under Section 3(1)(a) of the MWPA, stating that the application claiming maintenance would not be maintainable in law since there is a divorce. By an order dated 20 August 2014, the Judicial Magistrate First Class partly allowed the application of the wife, granting Rs.4,32,000 as reasonable and fair provision and maintenance to be paid within two months from the date of the order. The order also directed the husband to hand over the articles mentioned in Schedule A of the application, except the gold ornaments, within two months, and to pay Rs.3,000 as cost of the application., Being aggrieved by the order passed by the Judicial Magistrate First Class, the husband challenged the same by way of Criminal Appeal No. 27 of 2014 before the Sessions Court at Khed, Ratnagiri. The wife also challenged the order passed by the Judicial Magistrate First Class by way of Criminal Revision Application No. 43 of 2014 seeking enhancement of the amount granted by the Judicial Magistrate First Class., It is submitted before this Court that in the meantime, from the year 2014 to 2018, a sum of Rs.1,50,000 was paid to the wife by the husband in installments., Thereafter the Sessions Court heard the criminal appeal filed by the husband and the criminal revision application filed by the wife and, by its order dated 18 May 2017, dismissed the criminal appeal filed by the husband and partly allowed the application filed by the wife, thereby granting a sum of Rs.9,00,000 as a reasonable and fair provision of maintenance, to be paid within two months from the date of the order. The order further provided that if the opponent fails to make the payment within the said period, the amount will carry interest at the rate of 8% till realization of the entire amount., Being aggrieved by the order passed by the Judicial Magistrate First Class and also by the Sessions Court, the husband has filed the present criminal revision application under Section 397 read with Section 401 of the Code of Criminal Procedure., By an order dated 4 February 2019, this High Court directed the husband to deposit a further sum of Rs.2,00,000 in two installments – the first installment on or before 14 February 2019 and the second installment on or before 14 March 2019. Subject to the deposit of the said amount, the impugned order of issuance of the warrant was stayed and permission was granted to the wife to withdraw the said amount if deposited by the husband., It is submitted before me that the husband complied with the direction given by this High Court on 4 February 2019 by depositing the said amount of Rs.2,00,000., The wife thereafter remarried a person called Wasi f Yusuf Khan on 15 April 2018. However, on 3 October 2018, the wife obtained a divorce by way of Khula Nama., Ms. Shaheen Kapadia, learned counsel, made submissions on behalf of the applicant (husband): (i) once it is admitted that the respondent No. 1 (wife) has remarried, there will be no question of granting her maintenance; (ii) after the respondent’s remarriage and divorce from her second husband, the applicant ceased to be called a former husband and the respondent can seek maintenance only from the second husband; (iii) the amount granted in the impugned judgment was available to the respondent only till she remarried; (iv) explanation (b) of Section 125 of the Code of Criminal Procedure defines \wife\ as a woman who has not remarried; (v) the application for maintenance was filed five years after the applicant gave a customary divorce to the respondent; (vi) the quantum payable must be fair and reasonable and the courts have not decided it fairly; (vii) the applicant’s income was not sufficient for the Court to grant a sum of Rs.9,00,000; (viii) the Sessions Court’s calculation for a period of 30 years is not explained and the order is perverse as it directs payment within the Iddat period; (ix) reference is made to the Supreme Court judgment in Danial Latifi & Anr. v. Union of India (2001) 7 SCC 740, paragraph 28, which states that the amount extends to the whole life of the divorced wife unless she remarries for the second time; (x) the applicant has remarried for the third time and has a third wife and four children dependent on him; (xi) the amount deposited pursuant to this Court’s directions has not been withdrawn by the respondent; (xii) the applicant’s salary slip for 2013 shows a salary of 700 Saudi Riyal (approximately Rs.11,000) and a December 2023 slip shows 900 Saudi Riyal (approximately Rs.20,000), therefore a lump‑sum payment of Rs.9,00,000 cannot be called fair and reasonable; (xiii) the intention of the legislature in enacting the MWPA is to avoid vagrancy and destitution of a divorced wife, and directing the applicant to pay Rs.9,00,000 after the respondent has remarried amounts to luxury; (xiv) consequently the present criminal revision application should be allowed and the orders of the Sessions Court and the Judicial Magistrate First Class should be quashed and set aside., Mr. Saurabh Butala, learned counsel, made submissions on behalf of the respondent No. 1 (wife): (i) the husband’s conduct must be considered; he produced a photocopy of the minimum wages for a helper in Abu Dhabi in March 2011 (UAE Dirhams 1,200, approximately Rs.15,500) and estimated that in December 2023 the lowest expected salary for a helper would be UAE Dirhams 2,500 (approximately Rs.55,000); (ii) the applicant did not produce his income proof, forcing the Sessions Judge and the Magistrate to guess the quantum; (iii) false submissions were made before the Judicial Magistrate First Class stating that the husband was not working in 2013, whereas a salary certificate later showed earnings of about 700 Riyal; (iv) no documents were produced in the Sessions Court to show the applicant’s earnings; an affidavit filed on 4 January 2023 states that the applicant is working at a juice centre in Dubai on minimum wages, but the amount was omitted, indicating suppression; (v) the applicant has not produced a photocopy of his passport to show his stay in Gulf countries from the date of the application under Section 3(1)(a) till today; (vi) under Section 125 of the Code of Criminal Procedure a party can apply for alteration under Section 127, but there is no such provision under the MWPA; the legislature was clear that Section 3 of the MWPA does not allow any enhancement and defines the amount as reasonable and fair provision and maintenance to be made and paid by the former husband within the Iddat period; (vii) Section 3 of the MWPA does not use the word \remarry\; Section 4, which deals with maintenance from relatives or the Wakf Board, does use the word; therefore the specific exclusion of the word \remarry\ from Section 3 puts it on a different footing; (viii) initially when the respondent filed proceedings under Section 125 for herself, the applicant, with ulterior motives, gave her a Talaq Nama, aware of the provisions of Section 3 of the MWPA; (ix) the applicant gave Talaq to the respondent in 2008, the Sessions Court order was passed in 2017, but the respondent did not comply; the applicant paid only Rs.1,50,000 between 2015 and 2018; the respondent remarried, but that marriage lasted only four months; (x) it cannot be argued that if the full amount of Rs.9,00,000 ordered by the Sessions Court had been paid before the respondent remarried, the husband could have applied for a refund; (xi) since there is no provision under the MWPA to seek enhancement, the former husband cannot seek any deduction; even if his income later increases, the former wife would have no right to seek enhancement; (xii) reference is made to the Supreme Court judgment in Danial (supra), paragraphs 27, 28, 29, 36(1) and 36(2), which holds that even after a second marriage, the amount granted under Section 3(1)(a) of the MWPA must be paid by the former husband and the former wife cannot seek relief against a second former husband., I have heard both sides and have gone through the documents produced on record., The Preamble of the Muslim Women (Protection of Rights on Divorce) Act, 1986 proposes to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. The Act casts an obligation on husbands to make a reasonable and fair provision and maintenance towards their former wives. Section 2 defines a \divorced woman\ and the \iddat period\. Section 3(1)(a) provides that a divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. Section 4 empowers a Magistrate, where a divorced woman has not remarried and is unable to maintain herself after the iddat period, to order her relatives or, failing that, the State Wakf Board to pay reasonable and fair maintenance, taking into account her needs, standard of living during marriage and the means of the relatives or the Board., The word used in Section 3(1)(a) is \provision\ and the word \remarry\ is absent. The Act seeks to prevent destitution of Muslim women and ensure their right to lead a normal life even after divorce. The protection under the MWPA is unconditional; nowhere does the Act limit protection on the grounds of the former wife's remarriage. The entitlement to reasonable and fair provision and maintenance crystallises on the date of divorce and is not hampered by the former wife's remarriage, except as provided in Section 4, which deals with maintenance from relatives. Section 3 does not absolve the husband of his duty after the former wife's remarriage., The Supreme Court judgment in Danial (supra) (paragraphs 27, 28, 29, 36(1) and 36(2)) held that Section 3(1) of the Act provides that a divorced woman shall be entitled to a reasonable and fair maintenance to be made and paid by her husband within the iddat period. The Court observed that the provision is intended to give the divorced woman sufficient means of livelihood after divorce and that the word \within\ means on or before the expiration of the iddat period, not beyond it. However, the Court also held that the entitlement extends to the whole life of the divorced wife unless she marries for a second time. The judgment further explained that Section 3 imposes two separate obligations on the husband: (1) to make a reasonable and fair provision for his divorced wife and (2) to provide maintenance for her, with the emphasis on the time by which the arrangement should be concluded – namely, within the iddat period.
id_863	1	Precisely, the point that arose for consideration in Shah Banos case was that the husband has not made a reasonable and fair provision for his divorced wife even if he had paid the amount agreed as mahr half a century earlier and provided iddat maintenance and he was, therefore, ordered to pay a specified sum monthly to her under Section 125 Criminal Procedure Code. This position was available to Parliament on the date it enacted the law but even so, the provisions enacted under the Act are a reasonable and fair provision and maintenance to be made and paid as provided under Section 3(1)(a) of the Act and these expressions cover different things, firstly, by the use of two different verbs to be made and paid to her within the iddat period, it is clear that a fair and reasonable provision is to be made while maintenance is to be paid; secondly, Section 4 of the Act, which empowers the magistrate to issue an order for payment of maintenance to the divorced woman against various of her relatives, contains no reference to provision. Obviously, the right to have a fair and reasonable provision in her favour is a right enforceable only against the woman's former husband, and in addition to what he is obliged to pay as maintenance; thirdly, the words of the Holy Quran, as translated by Yusuf Ali of mahr as maintenance though may be incorrect and that other translations employed the word provision, this Supreme Court of India in Shah Banos case dismissed this aspect by holding that it is a distinction without a difference. Indeed, whether mahr was rendered maintenance or provision, there could be no pretence that the husband in Shah Banos case had provided anything at all by way of mahr to his divorced wife., The contention put forth on behalf of the other side is that a divorced Muslim woman who is entitled to mahr is only a single or one time transaction which does not mean payment of maintenance continuously at all. This contention, apart from supporting the view that the word provision in Section 3(1)(a) of the Act incorporates mahr as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period, also enables a reasonable and fair provision and a reasonable and fair provision as provided under Section 3(3) of the Act would be with reference to the needs of the divorced woman, the means of the husband, and the standard of life the woman enjoyed during the marriage and there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman, though it may look ironical that the enactment intended to reverse the decision in Shah Banos case, actually codifies the very rationale contained therein., While upholding the validity of the Act, we may sum up our conclusions: a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act. Liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to the iddat period., The Supreme Court of India in the judgment of Danial clarified that the divorced Muslim woman shall be entitled to a reasonable and fair provision and maintenance to be paid to her. The emphasis of Section 3 is not on the nature or duration of any such provision or maintenance, but on the time by which an arrangement for payment of maintenance should be concluded namely, within the iddat period. Full Bench judgment in the case of Karim Abdul Rehman Shaikh versus Shehnaz Karim Shaikh, reported in 2000 Criminal Law Journal 3560 (Bombay) (Full Bench) was considered by the Supreme Court of India in the judgment of Danial., A revision application filed under Section 125 of the Criminal Procedure Code by the respondent No.1 (wife) was opposed by the applicant (husband). The application was accordingly rejected. The husband did not produce before the Magistrate Court and the Sessions Court his salary certificate or details. The husband also filed an additional affidavit dated 4 January 2023 before the Supreme Court of India. In paragraph No. 26 of the affidavit, the husband stated that he is working in a juice centre. However, it is not mentioned in the affidavit the income or salary of the husband. While arguing the present Criminal Revision Application, the husband produced a document which according to him is a salary certificate, wherein his salary is shown as Rs.15,000. As per respondent No.1 (wife), the salary of the petitioner (husband) in the year 2011 would have been Rs.15,500 as per the information available on the website of the Indian Embassy, payable to a helper. According to them, as of today the minimum salary could be around Rs.55,000. Under the Muslim Women (Protection) Act, there is no provision for enhancement of amount once granted under Section 3. On the date of passing of the impugned order the amount payable by the husband got crystallized; therefore, even in future if the divorced wife remarries, it will not make a difference if the amount is payable in lump sum. The difference would be only when the amount is payable monthly. Therefore, the amount of Rs.9,00,000, in my opinion, is fair and reasonable., It is nobody's case that respondent No.1 (wife) has filed a separate application under the provisions of the Muslim Women (Protection) Act or under the provisions of Section 125 of the Criminal Procedure Code against her second husband. The applicant is paying only Rs.3,000 per month as maintenance to the daughter of respondent No.1, from the year 2014., Both the courts have recorded that the applicant (husband) has not produced the income proof. Therefore, without such documents before them they have arrived at the reasonable figure on the basis of some guess work in which I found no fault. Admittedly, as of date the entire amount payable under the impugned order has not been paid or deposited by the applicant. There is a protection order granted by the Supreme Court of India to the applicant., Learned counsel for respondent No.1 has submitted that after deposit of Rs.2 lakh in the executing court, respondent No.1, though tried to seek circulation of the present matter so as to take it on the board, however, due to one or the other reason, the matter could not be heard and disposed off., In the circumstances, I find no merit in the present Criminal Revision Application, and the same is dismissed. The sum of Rs.2,00,000 deposited by the applicant is immediately allowed to be withdrawn by respondent No.1 (wife), along with accrued interest. The respondent No.1 is also granted liberty to file an application for enhancement of maintenance amount to daughter Mehvish. If such an application is preferred the same should be heard and disposed of on its own merits. At this stage, Ms. Kapadia, advocate appearing for the applicant (husband) seeks stay to the execution of the order. The request has been opposed by Mr. Butala, advocate appearing for respondent No.1 (wife). The request of Ms. Kapadia is accordingly rejected.
id_864	0	The petitioners, practicing Advocates, have filed the present writ petition under Article 32 of the Constitution of India for a declaration that the designation of Advocates as Senior Advocates under Sections 16 and 23(5) of the Advocates Act, 1961 (hereinafter referred to as the said Act) as well as under Rule 2 of Order IV of the Supreme Court Rules, 2013, creating a special class of Advocates with special rights, privileges and status not available to ordinary Advocates is unconstitutional being violative of the mandate of equality under Article 14 and Right to Practice any Profession under Article 19 as well as Right to Life under Article 21 of the Constitution of India. It is their say that such designation has created a class of Advocates with special rights, and the same has been seen as a result only for kith and kin of Judges, Senior Advocates, politicians, Ministers, etc., resulting in the legal industry being monopolised by a small group of designated Advocates, leaving the vast majority of meritorious law practitioners as ordinary plebeians receiving discriminatory treatment., We may notice that it is contended that this Supreme Court of India in Indira Jaising vs. Supreme Court of India, Through Secretary General & Others, upheld the vires of the said Act providing for the designation of Advocates as Senior Advocates and illegally providing guidelines for such designation, amounting to judicial legislation. We may here add that there have been further modifications and formulations for designation by a subsequent judgment rendered in Indira Jaising vs. Supreme Court of India, Through Secretary General & Others in pursuance to the liberty reserved in the aforesaid judgment., The petitioner says that we cannot borrow the concept from Roman Law or England, which was feudal in character, as, in England, the concept of Queen's Counsel representing the crown came into existence in the 18th Century. At the time when the Constitution came into existence, there were admittedly different categories of legal practitioners with varying degrees of the right to practice. Mukhtiyars, Vakils and Pleaders practiced in the Muffasil Courts, while in High Courts, Bar at Law, Advocates and Solicitors practiced. The said Act was brought into existence to streamline the process of working of the legal system. While lauding the objective behind the said Act, the petitioner seeks to challenge the provisions of Sections 16 and 23(5) of the said Act, which is stated to have been unwittingly incorporated and is stated to be destroying the laudable purpose of the said Act, i.e., a single unified Bar for the entire Republic of India., A reference has also been made to the Advocates on Record in the Supreme Court of India, who are entitled to do the filing in the Supreme Court, while the Senior Advocates are the arguing counsels., We may note that the pleadings of the petitioner are almost reckless in character. The vast number of first‑generation lawyers who attained prominence and were designated as Senior Advocates are sought to be ignored, something which has grown over a period of time. The pleadings are reckless because they seek to make it appear as if the legal profession in India has long been feudalistic and a monopoly of certain higher castes and certain families. In fact, in the post‑liberalisation period, it is alleged that lawyers are known more for the manifestation of wealth and proximity to the Bench than for knowledge, values and erudition. These averments are contemptuous in character, and that too by the petitioner, who already faced conviction for contempt and debarment from the Supreme Court of India to practice in In Re Mathews Nedumpara., The petitioner does not stop at this but alleges that the Bar has lost all its independence and vitality. The allegations are not only against the ordinary members of the Bar and designated Advocates but also against Government Law Officers enjoying constitutional stature. He has pleaded that designation is an insignia of superior status and title and promising lawyers should not undertake the ignominy of applying for designation. He goes as far as to say that lawyers have lost faith in the system of merit, character, knowledge and uprightness but realised that only a title conferred by the Supreme Court of India as Senior Advocate alone can bring prosperity and success in the profession. Not only that, the entire legal fraternity practicing in subordinate Courts is stated to have been excluded from the zone of consideration for designation, and no meaningful objective is to be achieved by such classification., The dual system is stated to be causing total destruction of the justice delivery system., The test of constitutional validity of a law is stated to be actual impact and reality. The petitioner does not stop at blaming successful lawyers or, for that matter, the Judges but seems to paint everybody with the same brush, alleging even powerful politicians and high‑ranking bureaucrats have the clout to get their kith and kin appointed as Judges and Senior Advocates., During the course of arguments, the petitioner sought to submit that the petition filed for judicial transparency and reforms by an NGO sought to hijack the proceedings initiated by the petitioner. This is in reference to the petition of Mrs. Indira Jaising and even attributing motives to her as it was said that what she sought was legislation., One may say that the petitioner goes on and on ranting and raving about these issues, completely ignoring the purpose of the provisions he seeks to assail and the narrow compass of challenge to legislations. For convenience of reference, the relevant provisions are reproduced as under:, Section 16. Senior and other advocates. (1) There shall be two classes of advocates, namely, senior advocates and other advocates. (2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court of India or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law, he is deserving of such distinction. (3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe. (4) An advocate of the Supreme Court who was a senior advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate, provided that where any such senior advocate makes an application before 31 December 1965 to the Bar Council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly.\n\nSection 23. Right of pre‑audience. (5) Subject as aforesaid, (i) senior advocates shall have pre‑audience over other advocates, and (ii) the right of pre‑audience of senior advocates inter se and other advocates inter se shall be determined by their respective seniority., There are multifarious prayers seeking to strike down the provisions mentioned aforesaid of the said Act and to declare the judgment in Indira Jaising case as unconstitutional as also the relevant Supreme Court Rules as they seek to provide an unjust classification including robes., There is no doubt that the petitioner has had more than one brush with the law, though he claims to have become an advocate in the pursuit of his own case. The petitioner obviously crossed boundaries where the Supreme Court of India was compelled to take action under the Contempt of Courts Act, 1971 and debar the petitioner from practicing in this Court., We find the pleadings completely devoid of merit and justification, making allegations against all and sundry. This is more so in the conspectus of the large growth in the legal profession where a large number of first‑generation lawyers have made their mark. These lawyers, some of them young ones, have come from National Law Schools and other prominent Law Schools. Instead of appreciating their contribution, the petitioner has used his usual style of making allegations against all and sundry., On what is a limited legal scrutiny, the rest being the opinion and rantings of the petitioners, is the constitutional validity of the aforesaid provisions of the said Act. Suffice to say that the constitutional validity of a specific provision cannot be challenged in abstract, but when the provisions violate any fundamental rights guaranteed under Part III or contravene any provision of the Constitution, or the legislature lacks law‑making competence. If a provision violates a fundamental right, such a violation must directly and inevitably affect the people and cannot be premised on an ostensible use of violation of the provision. We may usefully refer to the observations in Public Services Tribunal Bar Association v. State of Uttar Pradesh as under:, The constitutional validity of an Act can be challenged only on two grounds viz. (i) lack of legislative competence; and (ii) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provisions. In State of Andhra Pradesh v. McDowell & Co. [(1996) 3 Supreme Court of India 709] this Supreme Court of India has opined that except the above two grounds there is no third ground on the basis of which the law made by the competent legislature can be invalidated and that the ground of invalidation must necessarily fall within the two grounds., The classification of advocates as senior advocates and other advocates under Section 16 of the said Act is a classification made by the legislature. The legislature has a broad discretion to make such classifications, and while there must be a reason for classification, the reason need not be a good one. The Supreme Court of India can only review the classification if it is palpably discriminatory and arbitrary., In Union of India v. Nitdip Textile Processors (P) Ltd. the Court observed as under: It is now well settled by a catena of decisions of this Court that a particular classification is proper if it is based on reason and not purely arbitrary, caprice or vindictive. While there must be a reason for the classification, the reason need not be a good one, and it is immaterial that the statute is unjust. The test is not wisdom but good faith in the classification. It is too late in the day to contend otherwise. It is time and again observed by this Court that the legislature has a broad discretion in the matter of classification. In taxation, there is a broader power of classification than in some other exercises of legislation. When the wisdom of the legislation while making classification is questioned, the role of the courts is very much limited. It is not reviewable by the courts unless palpably arbitrary. It is not the concern of the courts whether the classification is the wisest or the best that could be made., The classification of advocates under Section 16 of the said Act is a tangible difference established by the practice advocates have over decades, and the Supreme Court of India has devised a discernible and transparent mechanism to adjudicate the seniority of advocates in the profession. In order to be able to file any matter in the Supreme Court of India, an extensive and strict examination for an Advocate‑on‑Record has been provided. Not any advocate can walk in to file a matter. The objective is the efficiency of the system and proper assistance to the Bench as also to be in a better position to propagate the case of the client. Expertise and merit are the criterion. A lot of advocates prefer to remain as an Advocate‑on‑Record or advocates in the High Court and District Courts as the designation as Senior Advocate carries many inhibitions in the role that they can perform, i.e., they have to appear with an instructing counsel, not draft and file pleadings, and not deal with the litigants, etc. Thus, a special entitlement to address the Supreme Court of India is coupled with restrictions on many acts which they could otherwise perform as advocates. The designation as a Senior Advocate is a recognition of merit by the Supreme Court of India, and the two judgments passed in Indira Jaising cases referred to aforesaid have endeavoured to make the process more transparent., The challenge that the aforesaid classification is violative of Article 14 of the Constitution is untenable since Article 14 permits the reasonable classification of people by the legislature. The seniority of advocates is premised on a standardised metric of merit aimed at forwarding the standards of the profession. Thus, the classification of advocates and the mechanism to grant seniority to advocates is not based on any arbitrary, artificial or evasive grounds. Such a classification is a creation of the legislature, and there is a general presumption of constitutionality, and the burden is on the petitioners to show that there is a clear transgression of the constitutional principles, something which they have miserably failed to discharge. This rule is based on the assumption, judicially recognised and accepted, that the legislature understands and correctly appreciates the needs of the people., In R.K. Garg v. Union of India, it is observed as under: Now while considering the constitutional validity of a statute said to be violative of Article 14, it is necessary to bear in mind certain well established principles which have been evolved by the courts as rules of guidance in discharge of its constitutional function of judicial review. The first rule is that there is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. This rule is based on the assumption, judicially recognised and accepted, that the legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience and its discrimination are based on adequate grounds. The presumption of constitutionality is indeed so strong that in order to sustain it, the Supreme Court of India may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation., If one may say the indulgence to the junior members of the Bar, in a sense, is more than to the senior members because it is also part of the duty of the Bench to help with the evolution of the Bar. The underlying principle for ages has been that the credit should go to the junior counsel without the discredit going to him, and through ages, many lawyers have learnt in this process, including the persons who now form the Bench., We have, thus, not the slightest hesitation in coming to the conclusion that this writ petition is a misadventure largely of the petitioner in continuation of some of his past misadventures. It appears that the judgments and orders passed earlier do not seem to have had any salutary or counselling effect on the petitioner for any self‑introspection, but he seeks to carry on a vilification campaign against all and sundry. Obviously, the system is not able to correct the petitioner in his approach.
id_865	0	Government of India Ministry of Law and Justice Department of Justice (Appointments Division) Jaisalmer House, 26, Man Singh Road, New Delhi-110011. Dated: 18th April 2023. In exercise of the power conferred by Article 223 of the Constitution of India, the President is pleased to appoint Shri Justice Tarlok Singh Chauhan, senior‑most puisne Judge of Himachal Pradesh High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from 20 April 2023 consequent upon the retirement of Smt. Justice Sabina, Acting Chief Justice, Himachal Pradesh High Court. Rajinder Kashyap, Additional Secretary to the Government of India, Telephone: 2338 3037., Copy to: Shri Justice Tarlok Singh Chauhan, Judge, Himachal Pradesh High Court through the Registrar General, Himachal Pradesh High Court, Shimla; the Secretary to the Governor, Himachal Pradesh, Shimla; the Secretary to the Chief Minister, Himachal Pradesh, Shimla; the Secretary to the Acting Chief Justice, Himachal Pradesh High Court, Shimla; the Chief Secretary, Government of Himachal Pradesh, Shimla; the Registrar General, Himachal Pradesh High Court, Shimla; the Accountant General, Himachal Pradesh, Shimla; 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, 07 Krishna Menon Marg, New Delhi; the Technical Director, Ministry of Justice, with a request to upload on the website of the Department.
id_867	0	Reserved on 10.02.2021 Delivered on 08.03.2021 Petitioner: Km. Rachna and another Respondent: State of Uttar Pradesh and four others Counsel for Petitioner: Avinash Pandey, Amicus, Sri Shagir Ahmad Counsel for Respondent: G.A., J. K. Upadhyay, Hon'ble Sanjay Yadav, J., Hon'ble Mahesh Chandra Tripathi, J., Hon'ble Siddhartha Varma, J. (Delivered by Hon'ble Mahesh Chandra Tripathi, J.), Heard Sri Shagir Ahmad, learned Senior Advocate/Amicus Curiae and Sri Manish Goyal, learned Additional Advocate General, assisted by Sri Amit Sinha and Sri J. K. Upadhyay, learned Additional Government Advocates for the State of Uttar Pradesh., This writ petition has been listed before us in view of a reference made by a Division Bench of the Allahabad High Court, considering the various provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the law laid down by various courts. While referring the case to the Chief Justice of the Allahabad High Court to constitute a larger Bench, the Division Bench framed the following issues to be decided by the larger Bench: (1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home? (2) Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed as an illegal detention? (3) Under the scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of a child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and, as such, whether even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes is legally valid or requires a modified approach in consonance with the object of the Act., Since the reference is desired to be resolved by the larger Bench, the same has come up for consideration before us under the order of the Chief Justice dated 26.1.2021., The present habeas corpus writ petition has been filed by the petitioners seeking a writ of habeas corpus, commanding the fourth respondent, Superintendent, Children Home (Girl), District Saharanpur to release the corpus, second petitioner Km. Anchal, who has been illegally detained in the Children Home (Girl), District Saharanpur., Brief matrix of the case, as reflected from the record, is that the first information report was lodged by the mother of the second petitioner on 16.2.2020, alleging that on 15.2.2020 her minor daughter Km. Anchal, aged 17 years, was enticed by one Arjun son of Rishipal. She also alleged that while leaving the house, the petitioner corpus had taken certain ornaments and cash amount and that the father, mother and brother of Arjun had helped him in taking the petitioner corpus. The FIR was registered under Sections 363 and 366 of the Indian Penal Code against Arjun, his parents and relatives at Police Station Behat, District Saharanpur. The petitioner corpus was recovered on 04.3.2020 and on the same day her statement under Section 161 of the Code of Criminal Procedure was recorded, wherein she alleged that she was often beaten by her mother and, out of frustration, without informing her parents, she left home on 15.2.2020 and went to the house of her friend Km. Rachna, first petitioner (sister of Arjun). She stated that she had gone of her own free will and was living with her friend, but refused medical examination. As per her High School Certificate, her age was found to be 17 years, whereas a radiological examination conducted on 06.3.2020 indicated an age of about 20 years. Her statement under Section 164 of the Code of Criminal Procedure was also recorded on 07.3.2020, reiterating her earlier statement., Thereafter, the petitioner corpus was produced before the Chief Judicial Magistrate, Saharanpur on 13.3.2020. The police submitted that, as per the High School Certificate, the petitioner corpus was 17 years and 20 days old and that a suitable order should be passed regarding her custody. The mother of the petitioner corpus filed an application before the Chief Judicial Magistrate stating that the petitioner corpus was a minor and, in the interest of justice, should be sent to Balika Vikas Grih/Child Development Home. The Magistrate recorded a finding that the petitioner corpus was 17 years old and directed her to be produced before the Bal Kalyan Samiti/Child Welfare Committee for further direction regarding custody. Pursuant to the Magistrate's order, the petitioner corpus was produced before the Committee, which passed an order keeping her in Children Home (Girl). Consequently, the petitioner corpus is presently in Children Home (Girl), Saharanpur., Aggrieved with the said order, the present petition has been preferred for issuance of a writ of habeas corpus. While pressing the writ petition before the Division Bench, it was urged that in her statement under Section 164 of the Code of Criminal Procedure, the petitioner corpus categorically stated that, due to torture by her mother and brother, she left her house and is living happily with the first petitioner. Once custody of the petitioner corpus was denied by her parents, she wanted to go with the first petitioner and therefore cannot be sent to Children Home (Girl) against her wishes. Even if the petitioner corpus is a minor, she cannot be kept in Children Home (Girl) against her wishes., Before the Division Bench, learned Additional Government Advocate opposed the petition by claiming that the petitioner corpus is a minor as per the date of birth recorded in the High School Certificate. It was urged that the age of the petitioner corpus should be determined by applying the principles of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, which give primacy to the date of birth entered in the educational certificate over medical evidence. It was also objected that the writ of habeas corpus is not maintainable because the impugned order was passed by the Committee pursuant to the Magistrate's order and the judicial order, right or wrong, cannot be questioned in a petition seeking a writ of habeas corpus. The petitioner corpus has an efficacious alternative remedy of filing an appeal under Section 101 of the Juvenile Justice (Care and Protection of Children) Act. The Committee had exercised the power of the Magistrate and, in view of the provisions of Section 27 of the Juvenile Justice (Care and Protection of Children) Act, for all purposes the Committee acts like the Magistrate. Once the order has been passed by the Magistrate, it can only be assailed before the appropriate court by filing an appeal., The Division Bench considered two sets of judgments; (i) the first set laid down that a writ of habeas corpus is maintainable even when filed against a judicial order of the Magistrate sending the corpus to a Juvenile Home/Nari Niketan/Child Care Home or any other duly authorized home, and (ii) the second set, taken by coordinate benches of this Court, held that if a corpus has been sent to a Juvenile Home/Nari Niketan/Child Care Home pursuant to an order passed by the Committee, detention of the corpus cannot be said to be illegal and therefore a writ of habeas corpus should not be issued., The Division Bench relied on the judgment of the Allahabad High Court in Menu Patel versus State of Uttar Pradesh, which held: “The issue whether the victim/corpus who is a minor can be sent to Nari Niketan against her wish is no longer res integra and has been conclusively settled by a catena of decisions of this Court. In the case of Smt. Kalyani Chowdhary v. State of Uttar Pradesh reported in 1978 Cr. L.J. 1003 (D.B.), a Division Bench of this Court took the view that ‘no person can be kept in a Protective Home unless she is required to be kept there either in pursuance of the Immoral Traffic in Women and Girls Protection Act or under some other law permitting her detention in such a home. In such cases, the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home.’”, A similar view was taken in Smt. Neelam versus State of Uttar Pradesh and others, where the Division Bench reiterated that the issue of sending a minor to Nari Niketan against her wish is settled, quoting the same passage from Smt. Kalyani Chowdhary., The Division Bench also relied on the judgment in Pushpa Devi versus State of Uttar Pradesh and others (20 July 2015), which held: “In any event, the question of age is not very material in habeas corpus petitions as even a minor has a right to keep her person and the parents cannot compel detention of the minor against her will unless there is some other reason. The magistrate has no absolute right to detain any person at a place of his choice unless justified by law and procedure. The petitioner was not accused of offences under Sections 363 and 366 of the Indian Penal Code. The direction of the magistrate that she be detained at Nari Niketan is without jurisdiction and illegal. Even the magistrate is not a natural guardian or duly appointed guardian of all minors.”, The Division Bench in Smt. Raj Kumari versus Superintendent, Women Protection, Meerut and others held: “It is well settled that even a minor cannot be detained in a Government Protective Home against her wishes. The petitioner, according to two medical reports, is certainly not less than 17 years and understands her well‑being and is capable of considering her future welfare. Consequently, her detention in Government Protective Home, Meerut against her wishes is undesirable and the impugned order dated 23.11.96 directing her detention until a declaration regarding her age is obtained is not sustainable and is liable to be quashed.”, The Division Bench also relied on the judgment in Kajal and another versus State of Uttar Pradesh and others, which observed that the issue of sending a minor to Nari Niketan against her wish is settled and that detention pursuant to a judicial order appearing to be without jurisdiction cannot be labelled as legal, rendering the habeas corpus petition non‑maintainable., A contrary view was taken by the coordinate bench of this Court in Saurabh Pandey versus State of Uttar Pradesh, which held: “Once the corpus is found to be a child as defined by Section 2(12) of the Juvenile Justice (Care and Protection of Children) Act, 2015, and is a victim of a crime, she falls in the category of child in need of care and protection. Hence, the order of the Child Welfare Committee placing the corpus in a protection home is within its powers under Section 37 of the Act. As the corpus is in Women Protection Home pursuant to an order of the Committee, which is neither without jurisdiction nor illegal, the detention cannot be said to be illegal so as to warrant a writ of habeas corpus. If aggrieved, the petitioner may appeal under Section 101 of the Act.”, A similar view was taken in Smt. Shahjahan versus State of Uttar Pradesh and others, where the Court observed that, having filed a revision against the order dated 8.10.2014, the victim cannot be said to be in unlawful custody and the present habeas corpus petition is not maintainable; the remedy lies in the pending revision., In Km. Mona @ Reema versus State of Uttar Pradesh, the Court held: “The corpus was sent to Muzaffarnagar by the Additional Chief Judicial Magistrate on 9.5.2013 and subsequently to Nari Niketan, Meerut by order dated 9.5.2013. The order is not illegal or irregular and was passed in the welfare of the corpus. The petition appears to have been filed with ulterior motive and the detention is not illegal. The writ petition is devoid of merit and the prayer for setting the corpus at liberty is refused.”, In Guria Bhagat @ Guria Rawani versus State of Jharkhand and others, the Court held: “The custody of the petitioner with Nari Niketan at Deoghar is not illegal. If aggrieved by the order of the Judicial Magistrate, First Class, Dhanbad, she may challenge it in the appropriate forum. The writ of habeas corpus is not tenable because the custody arises from a valid order of the Judicial Magistrate dated 26.9.2013 and a subsequent order dated 22.10.2013 rejecting her application for release. These orders make the custody legal. The petition is dismissed, reserving the liberty to challenge the orders before the appropriate forum.”, In Smt. Himani versus State of Uttar Pradesh and others, the Court observed: “The corpus was allegedly kidnapped on 20.6.2012 and the FIR lodged on 2.7.2012 under Sections 363 and 366 IPC. School records show a date of birth of 10.5.1996, making her a minor at the time of the incident. Medical examinations placed her age between 18 and 20 years. She stated under Section 164 Cr.P.C. that she went with the alleged kidnapper of her own free will. A marriage certificate issued by an unauthorized priest was later withdrawn with an unconditional apology. The Judicial Magistrate/Civil Judge, Najibabad, sent the corpus to Nari Niketan Moradabad by order dated 24.7.2012, which is not illegal or irregular. Hence, her detention is not illegal and the petition is devoid of merit; the prayer for quashing the order dated 24.7.2012 is refused.”, In Akash Kumar versus State of Jharkhand and others, the Jharkhand High Court held: “The custody of the petitioner is pursuant to a judicial order of the Judicial Magistrate, 1st Class, Ranchi dated 27 May 2013. Since the custody follows a valid judicial order, it is not illegal and a writ of habeas corpus is not tenable. The petitioner’s reliance on Sections 6, 7 and 14 of the Juvenile Justice Act, 2000, to claim the order is ultra vires does not make the custody illegal. The appropriate remedy is an appeal under the relevant provisions, not a habeas corpus petition.”, The Division Bench also considered the judgment of the Madhya Pradesh High Court in Irfan Khan versus State of Madhya Pradesh and others, and the Gujarat High Court in Manish son of Natvarlal Vaghela versus State of Gujarat, which held that when a Child Welfare Committee, after following procedure and obtaining a court order, places a child with adoptive parents, the act is not illegal. Even if procedural lapses exist, they can be challenged through appeal or revision, and where an efficacious alternative remedy is available, a writ of habeas corpus cannot be issued., The Division Bench further considered the Full Bench judgment of the Patna High Court in Shikha Kumari versus State of Bihar, which held: “A writ of habeas corpus is not maintainable if the detention is pursuant to judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction. An illegal or irregular exercise of jurisdiction by a Magistrate passing an order of remand cannot be treated as an illegal detention. Such an order can be cured by challenging its legality, validity and correctness before the appropriate revisional or appellate forum, but it cannot be reviewed in a habeas corpus petition.” The Bench then answered three questions: 1) Whether an order passed by a Magistrate could be assailed and set aside in a habeas corpus petition – Answer: No, a writ of habeas corpus is not maintainable against a judicial order of a Magistrate. 2) Whether an order of remand passed by a Magistrate could be reviewed in a habeas corpus petition as an illegal detention – Answer: No, the order can be challenged only in the appropriate revisional or appellate court. 3) Whether an improper order could be termed/viewed as an illegal detention – Answer: No, an illegal order of judicial remand cannot be termed an illegal detention., Sri Shagir Ahmad, learned Senior Advocate and Amicus Curiae, submitted that the habeas corpus writ petition is not maintainable and the petitioner’s efficacious remedy is to file an appeal., Sri Manish Goyal, learned Additional Advocate General for the State of Uttar Pradesh, submitted that the writ of habeas corpus is not maintainable because the impugned order was passed by the Committee pursuant to the Magistrate’s order and the judicial order, right or wrong, cannot be challenged in a habeas corpus petition. The petitioner corpus has an efficacious alternative remedy of filing an appeal under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, and the judicial order can only be challenged before the appellate court. While passing the impugned order, the Committee exercised the power of the Magistrate and, in view of the provisions of Section 27 of the Juvenile Justice (Care and Protection of Children) Act, for all purposes the Committee acts like the Magistrate.
id_867	1	Once the order has been passed by the Magistrate, then it can only be assailed before the appropriate High Court by filing an appeal., It has been submitted that sub‑section (4) of Section 1 of the Juvenile Justice Act provides that the provisions of the Juvenile Justice Act shall apply to all matters concerning children in need of care and protection and children in conflict with law. The petitioner has also placed reliance on Section 2(14)(iii)(a) of the Juvenile Justice Act, which defines a child in need of care and protection as a child who resides with a person (whether a guardian of the child or not) and such person has injured, exploited, abused or neglected the child or has violated any other law in force for the protection of the child. Therefore, the girl child detained in Nari Niketan/Children Home will come under the category of child in need of care and protection., Section 27 of the Juvenile Justice Act provides for the establishment of a Child Welfare Committee, which deals with children in need of care and protection, and empowers the State Government to constitute, for every district, one or more Child Welfare Committees to exercise the powers and discharge the duties conferred on such committees. Section 27(9) provides that the Committee shall function as a Bench and shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class. Under Sections 29 and 37 of the Juvenile Justice Act, the Child Welfare Committee has powers to send children to a children’s home or fit facility etc., Consequently, a person aggrieved by an order passed by the Child Welfare Committee can file an appeal in the Children Court under Section 101 of the Juvenile Justice Act. The order passed by the Committee pursuant to which the child has been sent to a Children’s Home or Nari Niketan is a judicial order and hence the detention of the child cannot be termed illegal. Moreover, the order is appealable and therefore the habeas corpus petition is not maintainable and is liable to be dismissed., Shri Manish Goyal, learned Additional Advocate General, further submitted that in Smt. Neelam vs. State of Uttar Pradesh & 4 others (supra); Rahul Kumar Singh & another vs. State of Uttar Pradesh and Kajal & another vs. State of Uttar Pradesh and others (supra), as relied upon by the Division Bench, the habeas corpus writ petitions had been maintained, but the Court had failed to consider the provisions of the Juvenile Justice Act and, as such, the orders passed in those cases are per incuriam. In support of his submission, he placed reliance on the judgment of the Full Bench of the Patna High Court in Shikha Kumari vs. State of Bihar (supra) and submitted that, with respect to the questions formulated by this Court, the Patna High Court in Shikha Kumari’s case (supra) has considered and answered all three questions., Having heard the parties, apart from considering the issues referred by the Division Bench, we need to deal with certain ancillary issues attached to cases of elopement of minor girls and, on recovery, sending them to Nari Niketan/Protection Home/Care Home. We find an increasing number of habeas corpus petitions being filed by parents, guardians or alleged husbands for production of their wards or wives who leave their parental homes in run‑away marriages. While the parents of the couples undergo agony, the couples are on the run with the husband being accused of kidnapping and/or rape. The High Court, while dealing with habeas corpus petitions, is required to ensure that the person whose production is sought is not illegally detained. For this purpose, the High Court ascertains whether the person is being detained against his or her wishes or is otherwise illegally detained and gives directions as required. In most cases where a minor girl, after meeting her parents or on reflection, has second thoughts about her marriage or escapes, her custody is restored to the parents. Difficulty arises where the minor girl has entered into a matrimonial alliance and is steadfast in her resolve to continue cohabiting with the partner of her choice, sometimes even being pregnant., Let us notice the legal position with regard to marriages performed below the prescribed age under the Hindu Marriage Act, 1955 and the Child Marriage Restraint Act, 1929. For reference, the relevant provisions contained in Sections 5(iii), 11, 12 and 18 of the Hindu Marriage Act, 1955 are reproduced below.\n\5. Conditions for a Hindu Marriage. – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: (iii) the bridegroom has completed the age of twenty‑one years and the bride, the age of eighteen years at the time of the marriage.\n11. Void marriages. – Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.\n12. Voidable marriages. – (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely: (a) that the marriage has not been consummated owing to the impotence of the respondent; or (b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. (2) Notwithstanding anything contained in sub‑section (1), no petition for annulling a marriage (a) on the ground specified in clause (c) of sub‑section (1) shall be entertained if (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub‑section (1) shall be entertained unless the court is satisfied (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after …\n18. Punishment for contravention of certain other conditions for Hindu marriage. – Every person who procures a marriage of himself or herself to be solemnized under this Act in contravention of the conditions specified in clauses (iii), (iv), and (v) of Section 5 shall be punishable (a) in the case of a contravention of the condition specified in clause (iii) of Section 5 with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both; (b) in the case of a contravention of the condition specified in clause (iv) or clause (v) of Section 5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.\, From a perusal of the grounds given in Sections 11 and 12 of the Hindu Marriage Act, as reproduced above, it is seen that contravention of the prescribed age under Section 5(iii) of the Act is not given as a ground on which the marriage could be void or voidable. The Legislature, however, desired to discourage child marriages and therefore enacted the Child Marriage Restraint Act, 1929. The object and intent of the Act is to prevent child marriages. The definition of child is a male who has not completed 21 years of age and a female who has not completed 18 years of age. The Act aims to restrain the performance of child marriages. At the same time, the Act does not affect the validity of a marriage even though it may be in contravention of the age prescribed. In spite of the marriage not being declared void or voidable, the Legislature disapproves of child marriages and makes the performance punishable with imprisonment up to three months and a fine. Section 12 of the Act also provides for the issuance of an injunction to prevent the performance of any child marriage. There appears to be a rationale and public policy in the Legislature not making marriages solemnised in breach of the statutory age void or voidable. The Legislature was conscious that declaring such marriages void or voidable could lead to serious consequences and exploitation of women who are vulnerable due to their social and economic circumstances. Both Acts aim to discourage such marriages by making them punishable while recognizing the necessity of protecting marriages performed even though in contravention of the prescribed age as valid and subsisting., The Apex Court in Lila Gupta v. Laxmi Narain (supra) while reviewing the provisions of the Hindu Marriage Act in the context of a case falling within the ambit of the proviso to Section 15 observed that Section 5 prescribes six conditions for a valid Hindu marriage. Condition (i) ensures monogamy. Condition (ii) refers to the mental capacity of the parties and prohibits an idiot or lunatic from contracting the marriage, thereby providing for the consent of the bride and bridegroom. Condition (iv) forbids marriage of parties within prohibited degrees of relationship unless custom permits. Condition (v) similarly prohibits marriage between certain sapindas. Condition (vi) is a corollary to condition (iii) whereby if the bride has not attained the minimum age, the marriage will nevertheless be valid if the consent of her guardian has been obtained. Section 6 specifies the guardians competent to give consent. Section 11 provides that any marriage solemnised after the commencement of the Act shall be null and void and may, on a petition presented by either party, be declared void if it contravenes any of the conditions (ii), (iv) and (v) of Section 5. Section 12 provides that certain marriages shall be voidable on specified grounds, including contravention of condition (ii) of Section 5 and consent obtained by force or fraud. Section 13 provides for dissolution of marriage by divorce. Section 14 prohibits a petition for divorce within three years of marriage, reduced to one year by Section 9 of the Marriage Laws (Amendment) Act, 1976. Section 15, as it stood at the relevant time, is reproduced in extenso., The comprehensive review of the relevant provisions of the Act unmistakably manifests the legislative thrust that every marriage solemnised in contravention of one or other condition prescribed for a valid marriage is not void. Section 5 prescribes six conditions for a valid marriage. Section 11 renders marriage solemnised in contravention of conditions (i), (iv) and (v) of Section 5 void. Two incontrovertible propositions emerge: the Act specifies conditions for a valid marriage and a marriage contracted in breach of some but not all of them does not become void. The statute thus prescribes conditions for valid marriage and does not leave it to inference that each condition is mandatory such that breach of any one would render the marriage void. While a marriage in contravention of clauses (iii), (iv), (v) and (vi) of Section 5 is penal, a marriage in contravention of the prohibition prescribed by the proviso does not attract any penalty. The Act is silent on the effect of a marriage contracted by persons incapacitated because a period of one year has not elapsed since the dissolution of their earlier marriage. Such a marriage is not expressly declared void nor punishable, whereas marriages breaching conditions (i), (iv) and (v) are void and those breaching (iii), (iv), (v) and (vi) are punishable under Section 18. These provisions show that Parliament intended to treat only specific marriages as void and others as punishable. Consequently, a marriage in breach of the proviso to Section 15 is not void., Similarly, reference to the Child Marriage Restraint Act shows that it was enacted to prohibit child marriages and, while making such marriages punishable, it does not render them void. It appears that voidness of a marriage is not to be inferred unless expressly provided by statute., In Shankerappa v. Sushilabai, the Court held that a marriage solemnised in violation of the age condition of Section 5(iii) is not a nullity and such violation is only punishable under Section 18. The Court relied upon the judgment of the Supreme Court in Lila Gupta’s case. It has also been urged that custody cannot be entrusted to the accused who is facing a criminal trial under Sections 363, 366, 368 and 376 of the Indian Penal Code. So long as he is the husband and the marriage between him and the petitioner is valid, he is entitled to custody unless a competent court orders otherwise., In order to bring clarity to the matter, we consider whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee under Section 27 of the Juvenile Justice Act sending the victim to a Juvenile Home/Nari Niketan/Child Care Home, and we first examine the literal meaning and ambit of the writ of habeas corpus. In Halsbury’s Laws of England, it is observed: “The writ of habeas corpus ad subjiciendum, commonly known as the writ of habeas corpus, is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. It is a prerogative writ by which the sovereign has a right to inquire into the causes for which any of her subjects are deprived of liberty. By it the High Court and the judges of that Court, at the instance of an aggrieved subject, command the production of that subject and inquiry into the cause of his imprisonment. If there is no legal justification for the detention, the party is ordered to be released. Release on habeas corpus is not, however, an acquittal, nor may the writ be used as a means of appeal.”, According to A. V. Dicey in Introduction to the Study of the Law of the Constitution, “if, in short, any man, woman or child is, or is asserted on apparently good grounds to be deprived of liberty, the court will always issue a writ of habeas corpus to anyone who has the aggrieved person in his custody to have such person brought before the court and, if he is suffering restraint without lawful cause, set him free.”, In Greene v. Home Secretary, it was observed: “Habeas corpus is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal jurisdiction of imprisonment.”, In India, by Articles 32 and 226 of the Constitution of India, the Supreme Court and all the High Courts have jurisdiction to issue writs of habeas corpus throughout their respective territorial jurisdictions. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law., In Maneka Gandhi v. Union of India & Another, the Apex Court held that the procedure established by law under Article 21 must be just, fair and reasonable and any unjust, unfair or unreasonable procedure that deprives a person of liberty destroys such freedom., There is also a difference between a writ of habeas corpus maintained under Article 32 and under Article 226 of the Constitution of India. A writ under Article 32 of the Supreme Court is available in case of violation of fundamental rights guaranteed under Article 21 but does not relate to interference with personal liberty by a private citizen. However, a High Court may issue such a writ under Article 226 not only for violation of fundamental rights but also for other purposes, including against a private person., The nature and scope of the writ of habeas corpus was considered by the Constitution Bench of the Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling & Others, where it was held that the writ is essentially a procedural writ dealing with the machinery of justice, not substantive law. Its object is to secure the release of a person who is illegally restrained of liberty. The writ commands the person who allegedly has another in custody to bring the body before the Court so that the circumstances of detention may be inquired into and an appropriate judgment rendered. The writ is peremptory and its primary purpose is the immediate determination of the applicant’s freedom and release if the detention is unlawful., It is well settled that, in dealing with a petition for habeas corpus, the Court must see whether the detention at the date of the application is legal, if nothing more has intervened between the date of the application and the date of hearing (see A.K. Gopalan v. Government of India)., In Janardan Reddy & Others v. State of Hyderabad & Others, the petitioners, convicted by a Special Tribunal of Hyderabad of murder and other offences and sentenced to death, applied to the Supreme Court under Article 32 for writs of prohibition, certiorari and habeas corpus. The Supreme Court observed a basic difference between lack of jurisdiction and an illegal or irregular exercise of jurisdiction, noting that mere non‑compliance with procedural rules cannot be a ground for granting a writ under Article 32. Such defects can be corrected only by a court of appeal or revision, and once the appellate court has pronounced its judgment, the matter cannot be reopened in a proceeding under Article 32. The Court further held that a writ of habeas corpus could not be granted as a mere acknowledgment that the person is in detention in execution of a sentence on indictment of a criminal charge.
id_867	2	It can be safely said that a writ of habeas corpus could not be issued, firstly, in cases where the detention or custody is authorized by an order of remand issued by a competent court of jurisdiction and, secondly, where a person is committed to jail by a competent court by an order which does not appear to be without jurisdiction. The order has to be passed by a court of competent jurisdiction. It is, moreover, well settled that no writ of habeas corpus lies against the order of remand made by a court of competent jurisdiction. It is a well‑accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or is passed in an absolutely mechanical or wholly illegal manner. In B. Ramachandra Rao versus State of Orissa and Kanu Sanyal versus District Magistrate, Darjeeling and Others, the Supreme Court held that the Court is required to scrutinise the legality of the order of detention. Unless the Court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted., In State of Maharashtra and Others versus Tasneem Rizwan Siddiquee, the question before the Supreme Court was whether a writ of habeas corpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with an offence under investigation. Relying on the ratio laid down in Saurabh Kumar versus Jailor, Koneila Jail and Manubhai Ratilal Patel versus State of Gujarat, the Supreme Court observed that the writ petition filed on 18‑3‑2018 was limited to the relief of habeas corpus and did not challenge the Magistrate’s order. The petitioner was in police custody pursuant to an order granting police remand until 23‑3‑2018. Consequently, the matter was not one of continued illegal detention; the incumbent was in judicial custody by virtue of a valid order of the jurisdictional Magistrate. Therefore, no writ of habeas corpus could be issued., In Serious Fraud Investigation Office versus Rahul Modi and Others, the Supreme Court cancelled bail granted by the Delhi High Court to Rahul Modi and Mukesh Modi, who had been released in a habeas corpus writ petition despite being remanded to judicial custody by a competent court. The Court held that the act of directing remand of an accused is a judicial function and the challenge to the order of remand is not to be entertained in a habeas corpus petition. The High Court could not entertain the petition because the legality of the initial arrest and subsequent extensions of remand were matters that should have been challenged in the appropriate appellate or revisional forum, not through a habeas corpus petition., Before we proceed to set out our answer and examine the provisions of the Juvenile Justice Act, we will pause to observe that the Juvenile Justice Act is a self‑contained Act designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Juvenile Justice Act is to ensure and cater to the need of the child who is in conflict with law and the child in need of care and protection. The language of the Act is conclusive and must be construed according to ordinary principles so as to give effect to the plain meaning of the language used. In case of ambiguity, the meaning more in accord with justice and convenience must be preferred, but generally the words read in their context must prevail., Section 1(4) of the Juvenile Justice Act reads: “Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law, including (i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re‑integration of children in conflict with law; (ii) procedures and decisions or orders relating to rehabilitation, adoption, re‑integration, and restoration of children in need of care and protection.”, Section 2 defines a “child in need of care and protection” as a child who resides with a person (whether a guardian of the child or not) and such person has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of the child., The term “juvenile” is defined in Section 2(35) of the Juvenile Justice Act to mean a child below the age of eighteen years. The word “child” is defined in Section 2(12) to mean a person who has not completed eighteen years of age. The phrase “child in conflict with law” is defined in Section 2(13) to mean a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence. Section 2(14) defines “child in need of care and protection” as a child who (i) is found without any home or settled place of abode and without any ostensible means of subsistence; (ii) is found working in contravention of labour laws, begging, or living on the street; (iii) resides with a person who has injured, exploited, abused or neglected the child or has violated any protective law; (iv) is mentally ill, physically challenged or suffering from a terminal disease with no one to support; (v) has a parent or guardian found unfit or incapacitated; (vi) has no parents and no one is willing to take care; (vii) is missing or has run away; (viii) is likely to be abused, tortured or exploited for sexual abuse; (ix) is vulnerable to drug abuse or trafficking; (x) is likely to be abused for unconscionable gains; (xi) is a victim of armed conflict, civil unrest or natural calamity; or (xii) is at imminent risk of child marriage., Section 27 of Chapter V of the Juvenile Justice Act provides for the constitution of Child Welfare Committees. The State Government shall, by notification in the Official Gazette, constitute for every district one or more Child Welfare Committees to exercise the powers and discharge the duties conferred on such Committees in relation to children in need of care and protection. The Committee shall function as a Bench and shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class. The District Magistrate shall be the grievances redressal authority for the Committee., Section 29 of the Juvenile Justice Act states that the Committee shall have the authority to dispose of cases for the care, protection, treatment, development and rehabilitation of children in need of care and protection, and, notwithstanding any other law, shall deal exclusively with all proceedings under this Act relating to such children., Section 30 outlines the functions and responsibilities of the Committee, which include taking cognizance of children produced before it, conducting inquiries into safety and wellbeing, directing Child Welfare Officers or NGOs to conduct social investigations, declaring fit persons for care, directing placement in foster care or institutions, ensuring rehabilitation and restoration based on individual care plans, inspecting residential facilities, certifying surrender deeds, restoring abandoned children to families, declaring children legally free for adoption, taking suo motu cognizance of cases, dealing with sexually abused children under the Protection of Children from Sexual Offences Act, coordinating with police and other agencies, and accessing appropriate legal services., Section 36 deals with the inquiry procedure. Upon production of a child or receipt of a report under Section 31, the Committee shall hold an inquiry as prescribed and may pass an order to send the child to a children’s home, fit facility, fit person or foster family. All children below six years who are orphan, surrendered or appear abandoned shall be placed in a Specialized Adoption Agency where available. The social investigation must be completed within fifteen days so that the Committee can pass a final order within four months of the first production of the child. After the inquiry, if the Committee is of the opinion that the child has no family or continued need of care, it may send the child to a Specialized Adoption Agency, children’s home, fit facility or foster family until suitable rehabilitation is found or the child attains eighteen years of age. The Committee shall submit a quarterly report to the District Magistrate, who may direct remedial measures and, if pendency persists, the State Government may terminate the Committee and constitute a new one., Section 37 empowers the Committee, upon being satisfied through inquiry that the child before it is a child in need of care and protection, to pass orders such as declaration of need of care and protection, restoration to parents or guardian with or without supervision, placement in a Children’s Home, fit facility or Specialized Adoption Agency, placement with a fit person, foster care orders, sponsorship orders, directions to persons or institutions regarding care, protection and rehabilitation, and declaration that the child is legally free for adoption. The Committee may also declare fit persons for foster care, order after‑care support under Section 46, or any other order as prescribed., We are of the opinion that when the Magistrate or the Committee directs a girl to be kept in a protective home under the Juvenile Justice Act, the Magistrate or the Committee should give credence to her wish., Section 101 of the Juvenile Justice Act provides that any person aggrieved by an order made by the Committee or the Board may, within thirty days, prefer an appeal to the Children’s Court, except for decisions related to Foster Care and Sponsorship After Care, where the appeal shall lie with the District Magistrate. The Court of Sessions or the District Magistrate may entertain a delayed appeal if sufficient cause is shown, and the appeal shall be decided within thirty days. An appeal against a Board order passed after a preliminary assessment of a heinous offence lies before the Court of Sessions, which may seek assistance of psychologists and medical specialists. No appeal lies from an order of acquittal by the Board in respect of a child alleged to have committed an offence other than a heinous offence, nor from a Committee order finding that a person is not a child in need of care and protection. No second appeal lies from any order of the Court of Session, and an aggrieved person may appeal to the High Court as per the Code of Criminal Procedure, 1973., Section 102 authorises the High Court to, at any time, on its own motion or on an application, call for the record of any proceeding in which a Committee, Board, Children’s Court or any Court has passed an order, for the purpose of satisfying itself as to the legality or propriety of such order, and to pass any order it thinks fit, provided that no order prejudicial to any person is passed without giving that person a reasonable opportunity of being heard., In Kanu Sanyal versus District Magistrate, Darjeeling and Others, the Supreme Court held that a writ of habeas corpus is essentially a procedural writ dealing with the machinery of justice, not substantive law, and its object is to secure the release of a person illegally restrained of liberty. In Manubhai Ratilal Patel versus State of Gujarat and Others, the Court held that a writ of habeas corpus is not to be entertained when a person is committed to judicial or police custody by a competent court by an order that prima facie does not appear to be without jurisdiction or is passed in an absolutely mechanical or wholly illegal manner. In Saurabh Kumar versus Jailor, Koneila Jail and Others, the Court observed that even if a Magistrate acts mechanically in remanding an accused to judicial custody, a writ of habeas corpus would not be maintainable. In State of Maharashtra and Others versus Tasneem Rizwan Siddiquee, the Court held that no writ of habeas corpus could be issued when the detenue was in detention pursuant to an order passed by the Court. In Serious Fraud Investigation Office versus Rahul Modi and Others, the Court held that directing remand of an accused is a judicial function and the challenge to the same is not to be entertained in a habeas corpus petition., In Jaya Mala versus Home Secretary, Government of Jammu & Kashmir and Others, the Supreme Court observed that the detenu was arrested on 18 October 1981 and the expert report dated 3 May 1982, nearly seven months later, indicated that the detenu was around seventeen years of age at the time of arrest. The Court noted that the margin of error in age ascertained by radiological examination is two years on either side, confirming that the detenu was a young school‑going boy. The Court cautioned against treating young, possibly immature individuals with a sledge‑hammer approach in matters of preventive detention.
id_867	3	In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed. We must record our appreciation that Mr. Altaf Ahmed, learned standing counsel for the State of Jammu and Kashmir, submitted the State case with utmost fairness., To bring clarity to the matter, we consider the judgment of Raj Kumari versus Superintendent Women Protection House and others, wherein it was held that a minor cannot be sent to Nari Niketan against her wishes. The same principle of law was incorporated in the orders passed by the Supreme Court of India while entertaining the habeas corpus writ petition of a minor girl detained in Nari Niketan by a judicial order., The Division Bench judgments referred to above consistently cite the judgments in Ms. Kalyani Chaudhary versus State of Uttar Pradesh and Raj Kumari versus Superintendent Women Protection House. In Ms. Kalyani Chaudhary versus State of Uttar Pradesh the petitioner claimed that she was wrongfully detained in Mahila Ashram, Moti Nagar, Lucknow, and prayed for a writ in the nature of habeas corpus. The Supreme Court of India formulated the question whether her detention in Mahila Ashram, a protective home, was in accordance with law and observed that protective homes are mentioned in the Suppression of Immoral Traffic in Women and Girls Act, 1956. Sub‑section (2) of Section 10 of that Act provides that a woman or girl convicted of an offence under Section 7 or Section 8 may be kept in a protective home., The Court observed that a person can be kept in a protective home only when she is being dealt with under the Act. No person can be kept in a protective home unless she is required to be kept there either in pursuance of the Suppression of Immoral Traffic in Women and Girls Act or under some other law permitting her detention in such a home. It is admitted that the case does not fall under this Act and no other law has been referred to. The order of the learned magistrate gives no reason why the girl should be kept in the protective home and mentions no provision of law under which such a direction was passed. Consequently, the magistrate’s order suffers from an inherent lack of jurisdiction and the custody cannot be held to be legal. Learned counsel for the father argued that because the girl was a minor she could be kept in the protective home, but the evidence shows she is a major. Even if she were a minor, a minor cannot be detained against her will or at the will of her father in a protective home. The father was instrumental in getting the girl sent to the protective home through the police. The petitioner has stated that she will appear in the criminal court whenever summoned, and there is no allegation that she has committed any offence. Therefore, there is no legal validity for curtailing her liberty. The petition is allowed and Mrs. Kalyani Chowdhary (Kumari Kalyani Devi) is set at liberty forthwith., In Raj Kumari versus Superintendent Women Protection House the Court also considered the case of Ms. Kalyani Chaudhary and held that no person can be kept in a protective home unless required to be kept there either in pursuance of the Immoral Traffic in Women and Girls Act or under some other law. The Court further considered the judgment of Pushpa Devi versus State of Uttar Pradesh and allowed the habeas corpus writ petition. The medical reports of the Chief Medical Officer and LLRM Medical College, Meerut, confirmed that the petitioner is certainly not less than seventeen years old and understands her well‑being. Accordingly, the Court held that her detention in the Government Protective Home, Meerut, against her wishes is undesirable and the impugned order dated 23‑11‑1996 passed by the magistrate directing her detention until a declaration regarding her age is obtained is not sustainable and is liable to be quashed. The writ petition succeeds and is allowed. The impugned order dated 23‑11‑1996 passed by the City Magistrate, Bulandshahr, under Sections 97 and 98 of the Criminal Procedure Code is quashed and the Superintendent, Government Women Protective Home, Meerut, is directed to set the petitioner at liberty according to her wishes., The Court examined whether any authority exists for the detention of a person in the situation of the petitioner. No magistrate has an absolute right to detain any person at a place of his choice unless justified by law and procedure. The petitioner would not be accused of offences under Sections 363 and 366 of the Indian Penal Code because she could only be a victim and at best a witness. No law permits a magistrate to direct the detention of a witness merely because she does not wish to go to a particular place. Hence, the magistrate’s direction to detain her at Nari Niketan is absolutely without jurisdiction and illegal. A similar view was taken in Pushpa Devi versus State of Uttar Pradesh, where the Division Bench formulated the same issue and concluded that the magistrate’s direction lacks jurisdiction., The three questions raised can be considered together. In the first set of judgments, reliance was placed upon the judgments in Smt. Kalyani Chowdhary v. State of Uttar Pradesh and Seema Devi @ Simran Kaur v. State of Himachal Pradesh, where it was held that no person can be kept in a protective home unless required to be kept there either in pursuance of the Suppression of Immoral Traffic in Women and Girls Act or some other act. Where the magistrate’s order mentions no provision of law, the order suffers from inherent lack of jurisdiction and the custody cannot be legal. The question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father, and the father’s involvement in sending the girl to the protective home precludes any claim of custody in his favour., In Independent Thought v. Union of India, the Apex Court, after reviewing the Constitution of India, the Indian Penal Code, the Protection of Children from Sexual Offences Act, 2012 and the Juvenile Justice (Care and Protection of Children) Act, 2015, considered five options. The Court rejected the options of leaving the incongruity, striking down Exception 2 to Section 375 of the Indian Penal Code, reducing the age of consent to fifteen years, and bringing the POCSO Act in consonance with Exception 2. The Court adopted a purposive reading of Exception 2 to make it consistent with the POCSO Act, holding that sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape. This reading preserves the intent of social justice for the married girl child and the constitutional vision of the framers., The maintainability of habeas corpus writ petitions has often relied upon the judgment of Jaya Mala versus State of Jammu and Kashmir. That judgment was distinguished by the Full Bench of the Patna High Court in Shikha Kumari versus State of Bihar., The Juvenile Justice (Care and Protection of Children) Act, 2015 is a pro‑child legislation providing remedial measures of rehabilitation and care to a child in need of care and protection. Section 37 empowers the Committee, after being satisfied through inquiry that the child is in need of care and protection, to consider the Social Investigation Report and the child’s wishes if the child is sufficiently mature, and to pass orders such as declaration of need for care, restoration to parents or guardians, placement in a children’s home or fit facility, foster care, sponsorship, and directions for care, protection and rehabilitation. The Act also mandates quarterly review by the District Magistrate and confers powers on the Committee equivalent to those of a Metropolitan Magistrate or Judicial Magistrate of First Class under the Criminal Procedure Code., Therefore, when a child is placed in a Women Protection Home pursuant to an order of the Child Welfare Committee, the order is within the Committee’s jurisdiction and cannot be presumed illegal or perverse. If the petitioner is aggrieved by the order of the Committee or the magistrate, the appropriate remedy is an appeal or revision under Sections 101 and 102 of the Juvenile Justice (Care and Protection of Children) Act, not a habeas corpus petition. The writ of habeas corpus is not maintainable against judicial orders or orders of the Child Welfare Committee under the Act., We accordingly conclude as follows:\n\nQuestion 1: Whether a writ of habeas corpus is maintainable against the judicial order passed by the magistrate or by the Child Welfare Committee appointed under Section 27 of the Juvenile Justice (Care and Protection of Children) Act, sending the victim to a Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home? Answer: If the petitioner is in custody as per judicial orders of a Judicial Magistrate, a Court of competent jurisdiction, or a Child Welfare Committee under the Act, such an order cannot be challenged in a writ of habeas corpus.\n\nQuestion 2: Whether detention of a child in a Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed an illegal detention? Answer: An illegal or irregular exercise of jurisdiction by a magistrate or by the Child Welfare Committee cannot be treated as an illegal detention.\n\nQuestion 3: Under the Juvenile Justice (Care and Protection of Children) Act, 2015, is the proposition that even a minor cannot be sent to a Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes legally valid or does it require a modified approach? Answer: Under the Act, the welfare and safety of a child in need of care and protection is the legal responsibility of the Board or Child Welfare Committee, and the magistrate or Committee must give credence to the child’s wishes.
id_867	4	As per Section 37 of the Juvenile Justice Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of the Social Investigation Report submitted by the Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37(1). Thus, all the three issues referred for determination are answered, accordingly., Let the matter be placed before the appropriate Bench for orders. Before parting with the matter we place on record our appreciation for the active assistance rendered by learned Senior Advocate Shri Shagir Ahmad and the learned Additional Advocate General. (Siddhartha Varma, J.) (Mahesh Chandra Tripathi, J.) (Sanjay Yadav, J.)
id_869	0	CNR No. DLND01-009046-2021 In the matter of: Both Plaintiffs Versus Defendant. Date of institution of suit: 15.12.2021. Judgment reserved on: 20.05.2023. Date of Judgment: 09.06.2023. Appearance: Shri Pawanjit S. Bindra, Learned Senior Advocate with Shri Vinayak Marwah, Learned Counsel for the plaintiffs. Shri Bharat Chugh, Shri Mayank Arora, Shri Aditya Narayan Choudhary and Shri Ashray Chopra, Learned Counsel for the defendant., The present suit has been instituted by the plaintiffs for recovery of Rs. 1,52,77,020/- (Rupees One Crore Fifty Two Lacs Seventy Seven Thousand Twenty Only) along with interest and mandatory injunction against the defendant., The plaintiffs are the owners and are sufficiently entitled to the commercial land and independent building comprising basement, mezzanine, ground, first, second and part third floor located at 41, Community Centre, Basant Lok, New Delhi (hereinafter referred to as the suit property). The suit property was let out to the defendant for a period of nine years by virtue of a registered lease deed dated 30.05.2013, effective from 01.01.2013, with a monthly rent of Rs. 10,50,000/- (Rupees Ten Lacs Fifty Thousand Only) and an enhancement of 18% per annum after every three years., Subsequently, the defendant requested a reduction in rent citing financial difficulties. After about a year, the plaintiffs agreed to reduce the rent to Rs. 9,00,000/- payable from 01.01.2015 to 31.12.2016, Rs. 11,50,000/- payable from 01.01.2017 to 31.12.2019 and Rs. 13,22,500/- payable from 01.01.2020 to 31.12.2021. An addendum dated 06.11.2014 to the lease deed was executed reducing the rent as aforesaid. Later, the defendant again requested a reduction and the rent was further reduced to Rs. 6,00,000/- payable from 01.07.2016. Had the rent not been reduced, it would have been Rs. 12,07,500/- for July 2016., Despite the plaintiffs’ consent to the various rent reductions, the defendant was irregular in payment of rent. After the onset of the Covid‑19 pandemic, the defendant’s finance team, by email dated 14.03.2020, requested a 50% waiver of the existing rent and other charges until the epidemic circumstances became normal, which the plaintiffs did not accept. The defendant stopped paying rent after 31.03.2020. The plaintiffs, by letter dated 12.06.2020, expressed shock at the request and stated that they had already accommodated several rent reductions, resulting in a loss of over Rs. 1.0 crore. The force majeure clause invoked by the defendant was held not applicable, and the defendant was requested to pay rent for April, May and June 2020 for which invoices had already been raised., The defendant, by letter dated 06.06.2020, claimed that the Covid‑19 epidemic caused an unprecedented crisis to its industry and that it was making efforts to ensure continuity of operations while ensuring safety of staff and customers, but there was a significant decline in customer flow and revenue. The defendant further requested, by its letter dated 20.03.2020 (received by the plaintiffs on 06.06.2020), that rent be paid at 5% of net sales for the period 01.03.2020 to 31.07.2020, subject to review in July 2020. The plaintiffs did not agree to this proposal., The plaintiff received a notice dated 15.06.2020 under Section 106 of the Transfer of Property Act from the defendant for termination of the alleged unregistered lease deed dated 27.02.2013. In reply, the plaintiff, by letter dated 17.06.2020, disputed the claim, stating that the premises had been let out by a registered lease deed dated 30.05.2013 and demanded that the defendant clear three months’ outstanding rent and give three months’ notice as per the lease terms. The defendant sent an email dated 08.07.2020 terminating the lease and purportedly serving a three‑month notice. The plaintiff, by letter dated 08.07.2020, replied that the three‑month notice period would include rent for October 2020, and also demanded clearance of arrears of rent with GST and outstanding water and electricity charges before vacating. The defendant ignored this letter., The plaintiff, by letter dated 09.11.2020, again requested the defendant to clear outstanding arrears of rent with interest at 18% per annum. No response was received. The plaintiff’s counsel sent a notice dated 28.11.2020, together with a statement of account, demanding Rs. 56,62,020/- as outstanding rent with interest and requesting continued payment of rent until peaceful possession was handed over. The defendant assured that it would clear the outstanding rent with interest and also agreed to pay water and electricity dues. The defendant paid the electricity and water bills up to 31.01.2021, as confirmed by WhatsApp messages dated 28.01.2021, 29.01.2021 and 09.02.2021, but did not pay any rent., It is averred that the defendant continues to occupy the suit property and, as of the date of filing, a sum of Rs. 1,52,77,020/- is due and payable by the defendant to the plaintiffs on account of rent and interest (including rent for October 2021). The plaintiffs applied for pre‑mediation at the Delhi State Legal Services Authority, but mediation failed on 25.09.2021. By email dated 12.09.2021, the plaintiffs communicated to the defendant the dilapidated state of the building, which the defendant’s authorized representatives responded to by email dated 04.09.2021, evading responsibility., The outstanding amount claimed is Rs. 1,34,52,000/- (rent up to October 2021) plus interest of Rs. 18,25,020/- at 18% per annum from the date it became due, totaling Rs. 1,52,77,020/-. The claim is based on rent of Rs. 7,08,000/- per month (Rs. 6,00,000/- rent plus GST at 18% amounting to Rs. 1,08,000/-) for 19 months from April 2020 to October 2021., Summons of suit were sent to the defendant. The defendant appeared and filed a written statement raising a preliminary objection that the suit is not maintainable in law or fact and should be dismissed. The defendant asserted that it gave a termination notice to the plaintiffs, vacated the suit property in a timely manner and offered to hand over the keys, which the plaintiffs refused on the ground that repairs were needed. The defendant also sent a legal notice asking the plaintiffs to accept the keys; since the plaintiffs did not accept, the defendant claimed that possession had been delivered and it was not liable to pay rent after vacating., The defendant is a listed company as of 16.08.2021, employing more than 9,000 persons and operating in the Food & Beverage industry with over 700 outlets of brands such as Pizza Hut, KFC, Costa Coffee, Vaango, etc., across India, Nepal and Nigeria. By virtue of an amended agreement dated 12.08.2016, the lease concerning the third floor of the suit property was mutually renegotiated, and the rent was settled at Rs. 6,00,000/- per month. After this amendment, the area actually leased comprised the basement, mezzanine, first floor, second floor and the roof side of the building., During the Covid‑19 pandemic, the defendant again requested a 50% waiver of rent and other charges by letter dated 14.03.2020, and on 20.03.2020 requested that rent be calculated at 5% of net sales. The plaintiffs rejected both requests. The defendant, without prejudice to its rights, sent a termination notice under Section 106 of the Transfer of Property Act, 1882, on 15.06.2020, alleging that the lease deed dated 27.02.2012 was unregistered. The plaintiffs, by their termination letter dated 17.06.2020, replied that the lease was in fact registered on 30.05.2013 and demanded a three‑month notice period as per the lease terms., The defendant argued that all its obligations were discharged due to the pandemic and frustration of the lease deed, yet it chose to terminate the lease pursuant to clause 5.1 by serving a three‑month notice on 06.07.2020, with the last date of termination being 07.10.2020. The plaintiff, however, claimed the notice period ended on 31.10.2020 and demanded rent for the whole month of October 2020, a demand lacking factual or legal basis. Legal principle dictates that a period prescribed in calendar months expires on the corresponding date in the succeeding month; therefore, the correct last day of the notice period was 07.10.2020. Closure challans dated 28.09.2020, 29.09.2020, 30.09.2020 and 01.10.2020 show that the defendant vacated the suit property by 01.10.2020, which was acknowledged by the plaintiffs via WhatsApp images shared on 06.10.2020., Despite the admitted vacation of the suit property, the plaintiffs wrongfully insisted on repair of the building and demanded rent for October 2020, even though the defendant was not liable for such repairs under the contract or law. The defendant shared demand drafts for the full and final amount up to 07.10.2020 on 08.10.2020, but the plaintiffs refused to accept the keys and continued to demand rent till 31.10.2020 and renovation of the entire building, including the third floor, which had already been surrendered by the defendant under the addendum dated 12.08.2016., The plaintiffs’ refusal to accept the keys meant that possession was deemed delivered to them, and the defendant was not liable to pay rent thereafter. The possession of the suit property was handed over by the defendant upon termination of the lease deed, satisfying clause 3.11 of the lease deed. The three‑month notice period started on 06.07.2020, making the defendant liable for rent only up to 07.10.2020. PNG gas supply was disconnected on 06.10.2020 at the defendant’s request, confirming that operations were shut down on that date. The plaintiffs again made an unreasonable demand for rent for October 2020 in a letter dated 09.11.2020, and on 28.11.2020 sent a legal notice demanding Rs. 56,62,020/-, despite the property having already been vacated. The demand included rent for October and November 2020 without adjusting the security deposit of Rs. 31,50,000/- already paid by the defendant. The defendant also cleared the water bill dated 13.10.2020 for the period 28.09.2020 to 30.09.2020., The plaintiffs requested the defendant to pay the electricity bill for the period after vacation on the ground of financial difficulties, promising later set‑off. The defendant paid the electricity bill on 14.01.2021 for the period 12.12.2020 to 11.01.2021, an amount that is recoverable from the plaintiffs, as the electricity and water meters were not in the defendant’s name and the defendant was not liable for those charges., The plaintiff applied for pre‑suit mediation at the Delhi Legal Services Authority, Patiala House Court, and a notice of appearance dated 08.04.2021 was sent to the defendant, which was received on 18.04.2021 due to lockdown conditions. The defendant appeared in mediation on 10.04.2021. The defendant sent a notice dated 15.04.2021 to the plaintiffs asking them to collect the keys of the vacant premises, adjust the security deposit with alleged rental dues and accept Rs. 9,77,710/- as full and final settlement. The plaintiffs acknowledged receipt of this notice by email dated 18.04.2021., Despite the conciliatory approach of the defendant, the plaintiff, by letter dated 16.06.2021, chose to file a frivolous complaint against the defendant. The defendant promptly responded by letter dated 23.06.2021, denying all allegations. Mediation ultimately failed. On 12.09.2021, the plaintiffs emailed that the suit premises were dilapidated and accused the defendant of non‑maintenance. WhatsApp messages dated 19.01.2021 from the plaintiff admitted that the suit property was vacated by the defendant on 01.10.2020, yet the plaintiffs continued to demand rent for the whole month of October despite knowing that operations had ceased on 06.10.2020. Later, on 12.09.2020, the plaintiffs falsely alleged that possession was still with the defendant, and the averments of the plaint were denied in a para‑wise reply, seeking dismissal of the suit., Replication was filed on behalf of the plaintiffs to the defendant’s written statement, wherein the plaintiffs denied the defendant’s averments and reiterated the contents of the plaint., From the pleadings, the following issues were framed on 05.04.2022 by the Learned Predecessor: (1) Whether the plaintiff is entitled to recovery of Rs. 1,52,77,020/-. (2) Whether the plaintiff is entitled to interest, and if so, at what rate and for which period. (3) Whether the plaintiff is entitled to an equitable relief of mandatory injunction directing the defendant to pay Rs. 6.0 lakh plus GST per month as rent. (4) Whether the defendant gave a termination notice and vacated the premises timely, offering the keys which the plaintiff refused. (5) Relief., To prove its case, Plaintiff No.1 examined herself as PW1 on 18.05.2022, tendering evidence by affidavit and documents including the registered lease deed, addendum dated 06.11.2014, emails, letters, calculations, WhatsApp chats, and a mediation failure report dated 25.09.2021. She was cross‑examined at length., Plaintiff also examined Shri Taranjeet Singh Bhatia as PW2, who tendered his evidence by affidavit and complied with Section 65B of the Evidence Act regarding electronic data, and was cross‑examined at length., The defendant examined Shri Sanjeev Arora as DW1, Chief Financial Controller, who tendered his evidence by affidavit and produced the board resolution dated 17.02.2021, emails, closure challans, correspondence with PNG supplier, WhatsApp chats, photographs, demand drafts, water and electricity bills, legal notice dated 15.04.2021, email dated 18.04.2021 and transcript of conversation. He was cross‑examined at length., The defendant also examined Shri Munish Bhatnagar, Legal Manager, as DW2, who relied upon the documents of DW1 and produced a certificate under Section 65‑B of the Evidence Act. He was cross‑examined at length., The Learned Judge heard arguments advanced by counsel for both parties, carefully perused the record and noted that all the issues framed are interconnected and are being taken up together., The claim of the plaintiffs of Rs. 1,52,77,020/- consists of outstanding rent of Rs. 1,34,52,000/- up to October 2021 and interest of Rs. 18,25,020/- at 18% per annum from the date it became due. The outstanding rent is claimed for 19 months from April 2020 to October 2021 at a rate of Rs. 7,08,000/- per month (Rs. 6,00,000/- rent plus GST at 18% amounting to Rs. 1,08,000/-). The plaintiffs contend that the lease deed does not permit the defendant to adjust the security deposit against rent, and that the defendant’s attempt to adjust unpaid rent against the security deposit while demanding its return cannot be termed as handing over possession., The defendant, on the contrary, claimed that the lease was terminated effective 06.10.2020, and that, by legal notice dated 15.04.2021, it offered to adjust the security amount of Rs. 31,50,000/- and an additional sum of Rs. 9,77,710/- via demand drafts, representing the outstanding rent up to the date the suit property was vacated., The first relevant issue is whether the defendant has the right to foreclose the lease deed before its expiry and whether such termination was justified. Clause 5.1 of the lease agreement dated 31.05.2013 provides: ‘After the expiry of the lock‑in period of the initial three years of this deed, the lessee shall have a right to terminate the deed at any time by giving three months’ notice in writing to the lessors.’, The chronology of termination notices is as follows: (i) Letter dated 15.06.2020 from the defendant giving notice of termination of the unregistered lease deed, indicating an intention to hand over possession on or before 30.06.2020 and providing 15 days’ notice under Section 106 of the Transfer of Property Act, 1882. (ii) Plaintiff’s reply dated 17.06.2020 stating that three months’ notice is required as per clause 5 of the lease deed and that security would be refunded only after settlement of bills and other dues. (iii) Defendant’s notice dated 06.07.2020 giving a three‑month termination notice. (iv) Plaintiff’s letter dated 08.07.2020 acknowledging the notice and stating that the three‑month period would end on 31.10.2020, thereby demanding rent for October 2020 and restoration of the premises., It is evident from the correspondence that there was clear communication about termination of tenancy, and the only disagreement concerned the effective date—whether it was 07.10.2020 or 31.10.2020. Legal principle on calendar months confirms that the correct last day of the notice period was 07.10.2020., Having determined the tenancy, the next aspect is the defendant’s obligation to hand over vacant possession of the suit property on the determined date.
id_869	1	Section 108 of the Transfer of Property Act provides the rights and duties of lessor and lessee. In the instant case, sub‑clauses (m) and (q) are extracted below: 108. Rights and liabilities of lessor and lessee. In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased: (m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left; (q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Thus, the lessee‑defendant was duty bound to keep the suit property in good condition and on determination of the lease bound to put the lessor‑plaintiffs into possession of the property., Honourable High Court of Delhi, in H.S. Bedi v. National Highway Authority of India, vide judgment dated 14 May 2014 reported as 2015 SCC OnLine Del 9524, (2015) 220 DLT 179, (2015) 151 DRJ 248, (2015) 2 Civ LT 577, summarized the jurisprudence as follows: Determination of lease – Section 111 of the Transfer of Property Act provides various modes of determination of lease such as determination by efflux of time, expiry of the period of notice of termination, express surrender and implied surrender. Obligations of the landlord and the tenant upon determination of lease – The tenant is bound to hand over the vacant and peaceful possession of the tenanted premises to the landlord upon determination of lease under Section 108(q). Duty of tenant to restore the tenanted premises – The tenant is bound to restore the tenanted premises in the same condition in which it was taken under Section 108(m). Remedy of landlord in the event of non‑restoration by the tenant – The landlord may adjust the damages in the security deposit or sue the tenant for damages after taking over possession. Landlord cannot refuse to take over possession upon determination of lease and offer of possession by the tenant. Consequences of the landlord refusing to take the possession offered by the tenant – Possession shall be deemed to have been delivered to the landlord and the tenant shall not be liable to pay rent thereafter. Consequences of the tenant refusing to hand over possession – If the landlord is ready to accept possession but the tenant refuses or fails to hand over possession, the tenant’s liability to pay rent continues till the handing over of possession. Remedy of tenant in case of non‑refund of security deposit by the landlord – The tenant cannot refuse to hand over possession until the security deposit is refunded; the remedy is to sue the landlord for refund after handing over possession., In the instant case, the defendant claims that it expressed its desire to vacate the suit property by giving a termination notice (Exhibit Petitioner Witness 1/5) indicating the tentative date for handing over possession. The defendant states that after vacating the suit property it sent pictures of the vacant premises over WhatsApp to the plaintiff (Exhibit RW-1/4) on 06 October 2020, but the plaintiff took no steps to take possession. The plaintiff objected that the suit property was damaged, some goods were lying in the basement and outstanding arrears of rent were not paid., The cross‑examination of Sh. Taranjeet Singh Bhatia (Petitioner Witness 2) on 19 May 2022 recorded that on 06 October 2020 photographs were sent by the defendant after vacation of the premises. It was stated that there were goods in the basement and the building was in a dilapidated condition. The witness admitted that he had not previously stated the existence of goods in the basement but, based on the photographs, observed that the defendant’s goods were present in the building., However, the claim of goods in the basement and the dilapidated condition is not backed by any credible evidence; the plaintiffs have not led any evidence to substantiate that claim., Ms. Ameet Bhatia was examined as Petitioner Witness 1 and mostly deposed that the management and affairs of the suit property were looked after by her husband. Consequently, the deposition of Sh. Taranjeet Singh Bhatia (Petitioner Witness 2) assumes significance., In the cross‑examination of Petitioner Witness 2 on 19 May 2022, it was admitted that a meeting was held on 09 October 2020 with the representatives of the defendants. The defendant had sent a WhatsApp message which the plaintiff replied to, and in the office on that date the defendants placed before the plaintiff a cancelled demand draft, the amount of which the plaintiff did not accept as it was not in accordance with his entitlement. The plaintiff alleged that the defendant’s manner of speaking was very bad, that the defendant threatened to rely on a team of lawyers and was not scared of litigation, and that the plaintiff was never offered the keys of the premises., Defendant Witness 1, Mr. Sanjeev Arora, produced a WhatsApp chat (Exhibit RW-1/4) showing photographs and messages dated around 06 October 2020. The chat indicates that the parties discussed repair of the building to be done before possession was given. The defendant contends that the plaintiff could not point out any claim of repairs, and the witness withstood all suggestions in cross‑examination., It is also argued by senior counsel for the defendant that on 08 October 2020 a meeting was held between the plaintiff’s representative and the defendant’s representative, during which the defendant’s representative offered possession of the premises to the plaintiff’s representative. The plaintiff’s representative declined, stating that dues had to be cleared and the building repaired. The WhatsApp chat (Exhibit RW-1/4) records the following exchange: [06 October 2020, 07:42 PM] Taranjeet Bhatia: Yes, all need to be repaired; I have already mentioned it to Mr. Sanjeev Arora. [08 October 2020, 12:38 PM] Taranjeet Bhatia: Please call me inside, tell me to meet and then settle; now you are sending me a draft copy. Please, I have to take rent till end of October and the repair of the building has to be done in the whole building before you give us possession, thanks., The evidence suggests that at the time of vacating the suit property in the first week of October 2020, there was active interaction between the parties. The plaintiff’s unwillingness to take possession unless repairs were carried out contradicts the principle that the landlord cannot refuse possession once the tenancy is terminated. Records show that the suit property was vacated in October 2020, as the PNG (propane gas) connection was disconnected (Exhibit RW-1/3). The defendant argued that it was operating a Pizza Hut from the suit property, which could not run without gas, and that utility bills for September 2020 (water) and subsequent months (electricity) were paid (Exhibits RW-1/6 and RW-1/7). Evidence of relocation or closure of machinery is also placed on record (Exhibit RW-1/3)., The plaintiffs submitted documentary evidence pertaining to the period after October 2020, consisting of a letter dated 09 November 2020 (Exhibit Petitioner Witness 1/7) and a legal notice dated 28 November 2020 (Exhibit Petitioner Witness 1/8). Both communications indicate that the plaintiffs were not willing to take possession of the suit property and continued to contend that possession could not be taken unless arrears of rent were paid, repairs were carried out, and utility bills were settled., The plaintiffs also admitted in their WhatsApp chats (Exhibit RW-1/8) with Mr. Sanjeev Arora on 19 January 2021 and 12 September 2021 that the defendant had vacated the suit property. Relevant excerpts are: [19 January 2021, 10:58:43 AM] Tarun Bhatia: Please call me inside, tell me to meet and then settle; now you are sending me a draft copy; I have to take rent till end of October and the repair of the building has to be done before you give us possession, thanks. [12 September 2021, 7:26:14 PM] Taran Bhatia: Sir, we have learnt that our premises ... are in a dilapidated state due to non‑maintenance by your company. Continuous rain has caused water logging on the roof, leakage through the ceiling and cracking of lanterns, creating a high risk of accident., The senior counsel for the defendant argues that the defendant continued to make efforts to persuade the plaintiff to take the keys of the suit property. A meeting between the plaintiff’s representative and the defendant’s representative was held on 02 December 2021 at the defendant’s office to amicably resolve the matter. During this meeting, the plaintiff’s representative candidly admitted that the keys had been offered to them, which they refused. The plaintiff also refused to accept the keys but insisted on adjusting the rent against the security deposit until the entire building was repaired by the defendants. The conversation, recorded in Exhibit RW-1/11, includes a Hindi‑English mixed transcript in which the parties discuss the condition of accounts, the amount of damage estimated at approximately thirty lakh rupees, and the plaintiff’s refusal to take the keys until the dispute is resolved., It is contended on behalf of the defendant that the plaintiff reiterated its precondition for accepting the keys of the suit property. The relevant extract of the conversation shows that the plaintiff would not take the keys until the dispute is resolved and the demand is cleared, estimating the building damage at about thirty lakh rupees., It is well settled law that a landlord cannot refuse to accept possession of the suit property on the ground that the property is damaged. Applying the principles established in H.S. Bedi (supra), the lease was determined in October 2020 when the defendant offered possession to the plaintiff, who deliberately chose not to take it. Consequently, possession is deemed to have been delivered to the plaintiff, who is not entitled to rent thereafter. The plaintiff, by not taking unconditional possession, cannot recover rent for the period after the defendant vacated the suit property. There is no challenge to the defendant’s claim that all utility bills for the period when the suit property was under the defendant’s control have been paid., The court finds in favour of the defendant on issue 4, confirming that the defendant gave termination notice, vacated the premises timely, and offered the keys, which the plaintiff refused. On issue 1, the plaintiff is entitled to recover a sum of Rs 1,52,77,020/‑; on issue 3, the plaintiff is entitled to equitable relief of a mandatory injunction directing the defendant to pay Rs 6.0 lakhs plus GST per month as rent, as the plaintiff is entitled to rent from April 2020 to October 2020 under the lease deed. On issue 2, interest is awarded at twelve percent per annum on the amount exceeding the security deposit of Rs 31,50,000/‑, from the date of filing of the suit till realization. Accordingly, the plaintiff is awarded arrears of rent for the period April 2020 to October 2020 at Rs 6.0 lakhs per month plus applicable GST, after deduction of TDS, adjusted against the security deposit, with the balance payable by the defendant together with interest at twelve percent per annum., In view of the above findings, the suit is partly decreed. The plaintiff is entitled to arrears of rent for the period April 2020 to October 2020 at Rs 6.0 lakhs per month plus applicable GST after deduction of TDS, the amount to be adjusted against the security deposit of Rs 31,50,000/‑, with the balance payable by the defendant together with interest at twelve percent per annum from the date of filing of the suit till realization. Pursuant to Sections 35 and 35A of the Code of Civil Procedure, on the principle of equity, each party shall bear its own costs. The decree sheet shall be prepared accordingly, and the file shall be consigned to the record room. Pronounced in open court by Honourable District Judge (Commercial‑03) Vineeta Goyal on 09 June 2023 at Patiala House, New Delhi.
id_871	0	W.P.(C) No. 20030 of 2022 dated the 4th day of July 2022. Chief Justice S. Manikumar. In the instant writ petition, the petitioner has sought the following reliefs: Issue a writ of mandamus or any order or appropriate direction to the respondents to implement Exhibit P1 Government Order. Direct the respondents to ensure that all schools in Kerala, including government, aided and unaided higher secondary and vocational higher secondary schools, set up complaint boxes as directed in Exhibit P1 Government Order without further delay., The General Education Department issued Government Order (P) No. 39/2016/General Education dated 11 February 2016 for setting up student complaint boxes in all schools of Kerala. The order was issued on the basis of a request from the State Child Welfare Commission. In the complaint boxes, students can secretly drop their complaints, vexations and concerns. Detailed procedures for dealing with a student complaint are explained. Due to a lackadaisical approach by the respondents, the majority of schools in Kerala failed to set up complaint boxes. The inertness of the respondents in taking action against schools that failed to implement the directions contained in Exhibit P1 Government Order is absolutely illegal., Aggrieved by the non‑implementation of Government Order (P) No. 39/2016/General Education dated 11 February 2016 by the respondents, this public interest litigation is filed., On the basis of the instructions, a statement dated 24 June 2022 has been filed on behalf of the Director, General Education Department, respondent No. 3, contending that Exhibit P1 has been implemented and that subsequent instructions have been issued., The above writ petition is filed as public interest litigation alleging non‑implementation of Government Order (P) No. 39/2016/General Education dated 11 February 2016. Pursuant to the order of the State Child Welfare Commission dated 20 December 2014, the Department of General Education issued Circular No. 2859/G3/15/General Education dated 18 March 2015, giving instructions to all schools to place drop boxes. Thereafter the Government, by Government Order (P) No. 39/2016/General Education dated 11 February 2016 (Exhibit P1), issued guidelines regarding the implementation of drop boxes and the handling of complaints received therein. As per the letter dated 19 April 2017 from the Ministry of Human Resource Development regarding the implementation of an online complaint box developed by the National Commission for the Protection of the Rights of the Child, the Director of Public Instruction issued circulars on 20 September 2017 and 3 March 2018. The contention of the petitioner that the respondents are inert in implementing the Government Order and that the boxes are not available in most schools is not correct. The Department is keen to implement the provisions of the Government Order., The draft school manual published in May 2022, in Chapter 11 under “General Things”, includes instructions regarding the drop box. After the re‑opening of schools, all heads of institutions were reminded to comply with the directions in Government Order (P) No. 39/2016/General Education dated 11 February 2016 vide Circular No. M(4)465299/2022/Director General of Education dated 17 June 2022. Educational officers are directed to ensure the availability of complaint boxes during their school visits., It is respectfully submitted that there is no laxity on the part of the respondents in implementing the directions in Government Order (P) No. 39/2016/General Education dated 11 February 2016. Substantiating the averments, Mr. K. R. Ranjith, learned Government Pleader, has also filed a memo dated 1 July 2022, enclosing copies of Circular No. G3/2859/2015/General Education dated 18 March 2015, Circular No. M‑4/40217/2017/Department of Public Instruction dated 20 September 2017, Circular No. M4/95408/2017/Director General of Education dated 3 March 2018, Government Order (P) No. 39/2016/General Education dated 11 February 2016 and Letter No. M4/465299/2022/Director General of Education dated 17 June 2022 from the Director of General Education., The documents filed along with the memo are reproduced. No. G3/2859/2015/General Education, Thiruvananthapuram, dated 18 March 2015. Subject: General Education – Instruction to prevent sexual offences in schools. Reference: Order dated 20 December 2014 of the State Child Protection Commission. In the context of increasing sexual crimes against children in schools, any information regarding the same must be immediately reported to the police. Failure to report such cases to police in a timely manner is punishable by up to one year imprisonment and a fine under the Protection of Children from Sexual Offences Act 2012 (POCSO Act). The following guidelines are issued for the implementation of the POCSO Act in educational institutions., Awareness classes should be organized to create awareness among all children, teachers and other staff in the school about the POCSO Act to protect children from sexual crimes. District Education Officers and Assistant Education Officers should conduct awareness classes on the POCSO Act in their monthly meetings. For the availability of experts to take classes in this matter, contact the District Child Protection Officers in the district under the Integrated Child Protection Scheme. Detailed discussions and deliberations on the Act should be made in parent‑teacher association meetings. All educational institutions (aided, unaided, primary, secondary, higher secondary, vocational secondary) should keep drop boxes for complaints and suggestions. Every day, either the headmaster or a person assigned by him, in the presence of two teachers (one of whom must be a woman), should open and inspect the drop box. If any offence is noticed, the matter should be intimated to the nearest police station. The Director of Public Instruction, Director of Higher Secondary Education and Director of Vocational Higher Secondary Education should ensure that all instructions regarding the same are implemented., Principal Secretary No. M‑4/40217/2017/Department of Public Instruction, Office of the Director of General Education, Thiruvananthapuram, dated 20 September 2017, Phone No. 0471‑2580595. Subject: General Education – POCSO Act – National Commission for the Protection of Child Rights Online Complaint Box. Reference: Letter No. F.14‑2/2017‑EE.8 dated 19 April 2017 from the Secretary, Union Ministry of Human Resource Development. As per the circular cited above, it has been instructed to prevent sexual abuse against children and to enable students to register complaints against sexual offences and to take immediate action to set up POCSO online complaint boxes. It has also been instructed that an action‑taken report be submitted within thirty days. Further instructions are given below. The POCSO box is an online project launched by the National Commission for Protection of Child Rights to protect the rights of children, to report child abuse in a timely manner and to take action against it., Clicking on the POCSO e‑box button on the website https://ncpcr.gov.in/index.php brings up information about it, and the child can register a complaint directly with the help of animation pictures provided therein. In addition to online registration, complaints can also be sent to the National Commission for Protection of Child Rights, 5th Floor, Chandralok Building, 36 Janapath, New Delhi‑110001., For the Director of General Education, No. M4/95408/2017/Director General of Education, Office of the Director of General Education, Thiruvananthapuram, dated 3 March 2018, Email: supdtm.dge@kerala.gov.in. Subject: General Education – Installing Drop Box for Children in Schools. Reference: Letter dated 26 November 2015 from the Kerala State Commission for Protection of Child Rights., This office circular No. M4/40217/2017/Department of Public Instruction states that, in order to prevent sexual abuse against children and to enable children to register complaints, the POCSO online complaint system has been set up in all schools. All authorities concerned must ensure its effective functioning. In addition, a help box (complaint box) should be placed near the school office so that children can drop their complaints without fear. The headmaster should form a committee consisting of a teacher, an SMC/PTA executive member and the school leader to open and inspect the drop box every Tuesday and Friday and record the details of the complaint in a register signed by the committee members. The key of the drop box should be kept by the headmaster and the committee members should maintain confidentiality of the complaints. Action to be taken on a complaint should be discussed by the committee immediately. If the complaints are related to sexual harassment, the matter should be reported immediately to the police and Childline, apart from reporting to the authorities concerned., Abstract: General Education – Installing Drop Boxes for dealing with complaints of school children – Guidelines issued. Government Order (P) No. 39/2016/General Education dated Thiruvananthapuram, 11 February 2016. References: Government Order (P) No. 100/2011/General Education dated 30 April 2011; Government Order (P) No. 192/14/General Education dated 20 September 2014; Circular No. M4/18853/2014/Department of Public Instruction; Government Order (P) No. 2859/G3/15/General Education dated 18 March 2015; Letter No. 4700/A3/KeSCPCR dated 5 January 2016 of the Kerala State Commission for Child Protection. Based on the Right to Education Act 2009, the Kerala Right to Education Rules 2011 have been issued vide the orders referred to above. The duties of local authorities concerning the prevention of sexual offences in schools have also been issued, and the Child Rights Commission has asked the Government to bring uniform provisions regarding this subject., The Government examined this matter in detail and issued the following guidelines regarding drop boxes in schools. All government, aided and unaided schools, including higher secondary and vocational higher secondary schools, should install complaint boxes to receive complaints and suggestions from children. The drop box should be placed in a conspicuous location where children can approach it without fear and where it attracts attention. More than one drop box should be placed where there are larger numbers of children. A five‑member committee comprising the school headmaster or principal, the senior teacher or principal who will take charge in the absence of the headmaster or principal, and three teachers selected by them, will be responsible for examining and resolving the complaints in the drop box. In schools with fewer than 200 students, a three‑member committee comprising the headmaster or principal, the headmaster or principal in‑charge, and a teacher of their choice (one of whom must be a woman) shall be formed. The headmaster should examine the complaints in the drop box three days a week in the presence of any two members, one of whom must be a woman. The committee should organize meetings on two days a week to examine the complaints and suggestions in the drop box; in emergency situations the headmaster or principal shall convene the meeting. Complaints of a serious and urgent nature should be reported to the grievance redressal cell of the local self‑government and complaints under the POCSO Act to the police station through Childline. Complaints that do not fall under the above category should be resolved by the committee itself. The services of school management committee, school counselors and NRHM counselors should be utilized to resolve the complaints received in the drop box. The headmaster or principal should prepare and maintain a register of complaints and ensure confidentiality. If any punishment is imposed on children for any of the complaints received from them, it will be viewed seriously. (By order of the Governor) Additional Chief Secretary V. S. Senthil. No. M4/465299/2022/Director General of Education, Office of the Director of General Education, Thiruvananthapuram, dated 17 June 2022. Email: supdtm.dge@kerala.gov.in., From the Director of General Education, Thiruvananthapuram, to: All Deputy Directors of Education; all Regional Deputy Directors of Education (Higher Secondary Education Section); all Assistant Directors (Vocational Higher Secondary Section); all District/Assistant Educational Officers; all Headmasters (through Educational Officers). Subject: General Education – Installing complaint boxes (Drop Box) in schools for collecting complaints from students. Reference: Government Order (P) No. 39/2016/General Education dated 11 February 2016; Letter from this office M4/40217/2017/Department of Public Instruction; Letter from this office M4/95408/2017/Department of Public Instruction. Attention is invited to the references. Instruction had already been given to install complaint boxes in schools. Considering the importance of the matter, all government, unaided and aided schools shall follow the instructions. Educational officers should ensure that complaint boxes are installed in the schools during their school visits. Yours faithfully, For the Director of General Education., Though Mr. Jomy K. Jose, learned counsel for the petitioner, submitted that instructions have not been issued by the Director of General Education in Exhibit R3(e) letter dated 17 June 2022 to the effect that drop boxes should be kept in all higher secondary and vocational higher secondary schools, we are not inclined to accept the same, for the reason that perusal of Exhibit R3(e) letter dated 17 June 2022 makes it clear that all references in the said document have been directed to be implemented. Educational officers are also directed to ensure that complaint boxes are installed in the schools during their school visits., In the light of the above circulars extracted supra, we are of the view that wherever drop boxes have not been installed, they must be installed in all government, aided and unaided schools as expeditiously as possible., In addition to the above, we direct all Deputy Directors of Education, all Regional Deputy Directors of Education (Higher Secondary Education Section), all Assistant Directors (Vocational Higher Secondary Section) and all District/Assistant Educational Officers to send periodical reports to the Director of General Education, Thiruvananthapuram, setting out the nature of complaints and the finality of the same., The Secretary to the Government, General Education Department, Government of Kerala and the Director of General Education, Thiruvananthapuram shall issue appropriate directions for effective monitoring and implementation of the circulars issued regarding the installation of complaint boxes/drop boxes in schools. An effective mechanism shall be put in place. With the above directions, the writ petition is disposed of. Pending interlocutory applications, if any, shall stand closed., Chief Justice S. Manikumar; Judge Shaji P. Chaly. Dated 20 September 2017 and 3 March 2018.
id_873	0	Dinesh Maheshwari, J. Leave granted., By way of this appeal, the appellant has challenged the judgment and order dated 16.12.2021, as passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition No. 667 of 2020 whereby the High Court rejected his challenge to the order dated 05.11.2020, as issued by the Additional Director General of Police and Commissioner of Police, Nagpur City under Section 23(2) of the Maharashtra Control of Organised Crime Act, 1999, sanctioning prosecution of the appellant with five other accused persons in Crime No. 251 of 2020 of Sadar Police Station, Nagpur City for offences under the Indian Penal Code, 1860 and the Arms Act, 1959., The genesis of the present appeal is the complaint filed on 08.05.2020 at Sadar Police Station, Nagpur City. The complainant alleged that on 02.05.2019 he was forcefully kidnapped from Motimahal Restaurant, Sadar, Nagpur; was intimidated with a knife and a ransom of Rs. 20 lakh was demanded by the accused persons. The complainant identified three of the accused as the present appellant Abhishek Singh, Ankit Pali and Roshan Sheikh. He further alleged that the accused demanded papers of his ancestral property, threatened to kill him and his son, forcefully took his son in a vehicle, created terror of killing them, and extracted Rs. 9,000 to Rs. 11,000 from his pocket. The complainant also stated that the accused visited his house repeatedly demanding money, causing him to leave his house and stay elsewhere., On the basis of the complaint, Crime No. 251 of 2020 was registered for offences under Sections 363, 364A, 384, 386, 387, 397 and 504 of the Indian Penal Code., Apprehending arrest, the appellant applied for pre‑arrest bail and on 11.05.2020 the Sessions Judge, Nagpur granted him ad interim bail., On 02.06.2020 the Additional Commissioner of Police (Crime), Crime Branch, Nagpur City examined the proposal submitted by the Police Inspector, Crime Branch, Nagpur City for addition of Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organised Crime Act in Crime No. 251 of 2020 against six accused persons, including the appellant. The Additional Commissioner observed that more than one charge‑sheet had been filed against the accused involving offences punishable with imprisonment of three years or more, and that the accused had previously committed serious offences under the Indian Penal Code and related special enactments. He recorded satisfaction that preventive actions had failed, that the accused intended to gain pecuniary benefit, establish supremacy in the locality and create terror, and that there was sufficient material evidence to grant prior approval for investigation under Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organised Crime Act, 1999, as vested in him under Section 23(1)(A) of the same Act., Following the invocation of the Maharashtra Control of Organised Crime Act, the appellant's application for pre‑arrest bail was rejected by the Sessions Judge, Nagpur. As the appellant remained out of reach, a proclamation was issued on 14.10.2020 under Section 82 of the Code of Criminal Procedure, 1973 read with Section 20(3) of the Maharashtra Control of Organised Crime Act, declaring him an absconder., On 05.11.2020 the Additional Director General of Police and Commissioner of Police, Nagpur City examined the proposal of the Assistant Commissioner of Police (Crime), Crime Branch, Nagpur dated 31.10.2020 for sanction in terms of Section 23(2) of the Maharashtra Control of Organised Crime Act for prosecution of the accused persons in Crime No. 251 of 2020 for offences under the Indian Penal Code, the Arms Act and the Maharashtra Control of Organised Crime Act. The sanction order disclosed that preventive actions had been taken against the Team Leader and accused No. 5 Abhishek under Section 110 of the Code of Criminal Procedure at Sitaburdi Police Station, but the Team Leader continued to commit heinous offences for pecuniary benefit and other advantage., The Team Leader Roshan Sheikh has committed a total of nine offences, four of which were jointly committed with accused No. 5 Abhishek; charge‑sheets have been filed in three cases and one offence is under investigation. In total, four cases have charge‑sheets filed jointly against the Team Leader, accused No. 5 Abhishek and accused No. 4 Irfan Khan, and the court has taken cognizance. Accused No. 5 Abhishek has committed seven offences, three jointly with the Team Leader (Crime No. 482/15 of Nandanwan Police Station, Crime No. 196/16 Sitaburdi Police Station and Crime No. 83/17 Sitaburdi Police Station) and one jointly with the present crime syndicate. He has also committed two offences under Section 307 of the Indian Penal Code at Burdi Police Station with other members, and one offence under Section 4/25 of the Arms Act at Ambazari Police Station with other members. All these cases have charge‑sheets filed. Accused No. 5 obtained anticipatory bail on registration of the present FIR but is now absconding after the application of the Maharashtra Control of Organised Crime Act., The sanctioning authority recorded satisfaction that all essential ingredients of Sections 2(1)(d) and 2(1)(e) of the Maharashtra Control of Organised Crime Act were fulfilled and proceeded to grant sanction in terms of Section 23(2) of that Act for prosecution of the six accused persons, including the appellant, for the aforesaid offences, inclusive of offences under the Maharashtra Control of Organised Crime Act., After the sanction, the police filed the charge‑sheet on 07.11.2020 in Crime No. 251 of 2020. The appellant then filed Writ Petition No. 667 of 2020 in the High Court, challenging the sanction order dated 05.11.2020., The High Court noted that the appellant's previous involvement in other criminal cases, at least three of them jointly with the alleged Team Leader, formed part of the consideration in issuing the sanction. The High Court examined the sanction order and, finding no legal flaw, dismissed the writ petition, clarifying that its observations would not prejudice the trial or pre‑empt any legitimate defence of the appellant., The appellant has been involved in the following cases: (i) Crime No. 3283/2012 dated 15.07.2012 at Sitabuldi Police Station, offences under Sections 4/25 of the Arms Act and 135 of the Maharashtra Police Act, pending before the Judicial Magistrate First Class, Nagpur; (ii) Crime No. 13/2012 dated 11.01.2012 at Sitabuldi Police Station, offences under Sections 307 and 34 of the Indian Penal Code, where the appellant and co‑accused were acquitted by the Sessions Court on 09.05.2017; (iii) Crime No. 482/2015 dated 20.12.2015 at Nandanwan Police Station, offences under Sections 143, 147, 148, 149, 294, 324, 325 of the Indian Penal Code, where the parties reached a settlement and the High Court quashed the proceedings on 13.04.2016; (iv) Crime No. 196/2016 dated 06.05.2016 at Sitabuldi Police Station, offences under Sections 143, 147, 148, 149, 294, 323, 326, 324 of the Indian Penal Code, charge‑sheet filed and pending; (v) Crime No. 517/2016 dated 18.11.2016 at Sitabuldi Police Station, offences under Sections 143, 147, 148, 149, 307 of the Indian Penal Code and Section 3/25 of the Arms Act, charge‑sheet filed and pending; (vi) Crime No. 83/2017 dated 08.03.2017 at Sitabuldi Police Station, offences under Sections 143, 147, 148, 149, 323, 294 and 506 of the Indian Penal Code, charge‑sheet filed and pending; (vii) Crime No. 251/2020 dated 08.05.2020 at Sadar Police Station, offences under Sections 363, 364A, 384, 386, 387, 397, 504, 506 of the Indian Penal Code, Section 4/25 of the Arms Act and Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organised Crime Act, where the charge‑sheet has been filed., Learned senior counsel for the appellant submitted that the Maharashtra Control of Organised Crime Act carries drastic consequences, including a minimum period of sentence under Section 3, interception of communications under Section 14, special rules of evidence overriding ordinary rules in the Code of Criminal Procedure and the Indian Evidence Act, 1872, a converse burden of proof on the accused under Section 17, use of confessions made to a police officer under Section 18, forfeiture and attachment of property under Section 20, and modified application of the Code of Criminal Procedure. He referred to State of Maharashtra & Ors. v. Lalit Somdatta Nagpal & Anr., (2007) 4 SCC 171, paragraph 62, emphasizing that the provisions of the Act must be strictly construed., The counsel further argued that, under Section 2(1)(d) read with Sections 2(1)(e) and 2(1)(f) of the Maharashtra Control of Organised Crime Act, invocation requires at least two charge‑sheets filed with twin allegations of (a) violence and (b) the object of gaining pecuniary or other similar benefit. He cited Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra & Anr., (2005) 5 SCC 294, paragraph 24, to support the view that cases lacking the pecuniary benefit element cannot be the basis for invoking the Act., The appellant's counsel contended that the allegations of pecuniary benefit arise only in the present Crime No. 251 of 2020 and not in the other cases, therefore the threshold requirement of involvement in two or more cases with such an object is not satisfied, rendering the Maharashtra Control of Organised Crime Act inapplicable., He also submitted that the sanction order mechanically used the expressions \gain pecuniary benefit or undue economic or other advantage\ without proper factual basis, and that such arbitrary use renders the order baseless. He relied on Jagannath Misra v. State of Orissa, (1966) 3 SCR 134, and Mohindhr Singh Gill & Anr. v. Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405, to argue that mere use of statutory language without application to facts is impermissible where personal liberty is at stake., The counsel pointed out that the sanctioning authority relied on cases where the appellant was acquitted (Crime No. 13/2012) or the proceedings were quashed (Crime No. 482/2015), and argued that specific reasons for relying on such cases were absent, warranting setting aside the sanction order., He further argued that reliance on confessional statements recorded under Section 18 of the Maharashtra Control of Organised Crime Act was self‑serving, and that without meeting the two‑charge‑sheet threshold, no number of confessions can justify sanction. He cited Khaja Bilal Ahmed v. State of Telangana & Anr., (2020) 13 SCC 632, to support the view that the sanction order should be set aside for reliance on irrelevant material., Regarding the allegation that the appellant was an absconder, the counsel submitted that the appellant had no intention to evade the judicial process, had remained available in Nagpur, and had travelled to Delhi to swear an affidavit before this Court. He argued that the State's claim of absconding was a false prejudice to justify the arbitrary sanction., Learned counsel for the State countered that the appellant is not entitled to relief under Article 136 of the Constitution of India because he has been declared an absconder under Section 82 of the Code of Criminal Procedure read with Section 20(3) of the Maharashtra Control of Organised Crime Act, and therefore personal liberty arguments must be rejected., The State argued that the three cases—Crime No. 482/2015 (Nandanwan), Crime No. 196/2016 (Sitabuldi) and Crime No. 83/2017 (Sitabuldi)—each have charge‑sheets filed, satisfying the requirement of more than one charge‑sheet under Section 2(1)(e). It contended that the fact that one case was quashed and another ended in acquittal is not material to the question of continued unlawful activity under Section 2(1)(d). The State further noted that in the acquitted case a key witness turned hostile, emphasizing that the Maharashtra Control of Organised Crime Act is intended to address situations where offenders escape liability due to lack of witness cooperation., The State relied on the Full Bench decision of the Bombay High Court in State of Maharashtra v. Jagan Gagansingh Nepali @ Jagya & Anr., (2011) SCC OnLine Bombay 1049, to argue that crimes of bodily offence can be committed with the intention to establish supremacy and obtain gains other than pecuniary benefit. It also cited State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari & Ors., 2013 (12) SCC 17, to assert that confessional statements may be considered when granting sanction under Section 23(2) of the Maharashtra Control of Organised Crime Act., The State maintained that confessional statements of the gang leader and co‑accused directly disclose the appellant's role as an active member of the organised crime syndicate, and that there is no prohibition in the Maharashtra Control of Organised Crime Act against using such statements while granting sanction. It argued that the reliability of confessional statements can only be adjudicated during trial., The State further submitted that when credible information regarding commission of an offence or organised crime is placed before the sanctioning authority, it may be relied upon, citing Kavitha Lankesh v. State of Karnataka & Ors., (2021) SCC OnLine 956. It also argued that the validity of the sanction can be examined by the Trial Court during the trial, referencing Vinod G. Asrani v. State of Maharashtra, (2007) 3 SCC 633., The Court has given anxious consideration to the rival submissions and examined the material placed on record with reference to the law applicable. While dealing with the rival submissions, it is pertinent to note the Statement of Objects and Reasons as well as the Preamble of the Maharashtra Control of Organised Crime Act, 1999. The Statement of Objects and Reasons reads: Organised crime has for quite some years now become a very serious threat to society. It knows no national boundaries and is fueled by illegal wealth generated by contract killing, extortion, smuggling of contrabands, illegal trade in narcotics, kidnappings for ransom, collection of protection money and money laundering, etc. The illegal wealth and black money generated by organised crime are huge and have a serious adverse effect on the economy. It was seen that organised criminal syndicates made a common cause with terrorist gangs and fostered narco‑terrorism which extends beyond national boundaries.

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