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id_873	1	There was reason to believe that organised criminal gangs have been operating in the State and thus there was an immediate need to curb their activities. It was also noticed that the organised criminals have been making extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission would be an indispensable aid to law enforcement and the administration of justice., The existing legal framework, that is the penal and procedural laws and the adjudicatory system, were found to be rather inadequate to curb or control the menace of organised crime. The Government therefore decided to enact a special law with stringent and deterrent provisions, including in certain circumstances power to intercept wire, electronic or oral communication to control the menace of organised crime. It is the purpose of the Maharashtra Control of Organised Crime Act, 1999 to achieve its objects., The relevant part of the Preamble of the Maharashtra Control of Organised Crime Act, 1999, which substituted its predecessor Ordinance, reads as follows: 'An Act to make special provisions for prevention and control of organised crime and for coping with criminal activity by organised crime syndicate or gang, and for matters connected therewith or incidental thereto.', The relevant definitions and meanings assigned to the expressions continuing unlawful activity, organised crime and organised crime syndicate, respectively, in clauses (d), (e) and (f) of Section 2(1) read as follows: (d) continuing unlawful activity means an activity prohibited by law for the time being in force, which is a cognisable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate, in respect of which more than one charge‑sheet has been filed before a competent court within the preceding period of ten years and that court has taken cognisance of such offence; (e) organised crime means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency; (f) organised crime syndicate means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang, indulge in activities of organised crime., The punishments for organised crime, as specified in Section 3 of the Maharashtra Control of Organised Crime Act, 1999, are as follows: (1) Whoever commits an offence of organised crime shall, if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees one lakh; in any other case, be punishable with imprisonment for a term not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lakhs. (2) Whoever conspires, attempts, advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime shall be punishable with imprisonment for a term not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lakhs. (3) Whoever harbours or conceals, or attempts to harbour or conceal, any member of an organised crime syndicate shall be punishable with imprisonment for a term not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lakhs. (4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lakhs. (5) Whoever holds any property derived or obtained from the commission of an organised crime or which has been acquired through organised crime syndicate funds shall be punishable with a term not less than three years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees two lakhs., The approval for investigation and sanction for prosecution are granted in terms of Section 23 of the Maharashtra Control of Organised Crime Act, 1999: (1) Notwithstanding anything contained in the Code, (a) no information about the commission of an offence of organised crime under this Act shall be recorded by a police officer without the prior approval of a police officer not below the rank of Deputy Inspector General of Police; (b) no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of Deputy Superintendent of Police. (2) No Special Court shall take cognisance of any offence under this Act without the previous sanction of a police officer not below the rank of Additional Director General of Police., As noticed, learned counsel for the State has emphatically argued that the appellant has been declared an absconder in terms of Section 82 of the Code of Criminal Procedure and Section 20(3) of the Maharashtra Control of Organised Crime Act, 1999 and hence his case deserves no consideration. The appellant’s answer to this plea is that he had no intention to abscond or to avoid the judicial process and that the illegal and mala fide invocation of the Maharashtra Control of Organised Crime Act, impinging upon his fundamental rights, could not stand validated by the alleged absconsion. While the submissions of the State cannot be ignored altogether, the question remains whether the appellant deserves indulgence under Article 136 of the Constitution of India; nevertheless, having considered the notices issued to the respondents, we first examine the matter on its merits and will address the aspect of absconsion later., A comprehensive look at the objects and reasons for enactment of the Maharashtra Control of Organised Crime Act, its overall purpose signified in its Preamble, and the relevant definitions in Section 2 as well as the punishments provided in Section 3 leaves nothing to doubt that this enactment is for making special provisions for dealing with the menace of organised crime, which poses a serious threat to society. No doubt, the enactment makes stringent provisions with several extraordinary measures, but the peculiar nature of the mischief sought to be tackled—organised crime—has obviously led to such extraordinary measures, particularly when the existing legal framework was found to be rather inadequate to control the menace., A long deal of arguments has been advanced on behalf of the appellant that, looking to the drastic and serious consequences, the provisions have to be strictly construed and the authorities are bound to strictly adhere to the same. The question is what are the connotations of strict construction by the courts and strict adherence by the authorities in the context of an enactment like the Maharashtra Control of Organised Crime Act, 1999. For determination of this question, it is appropriate to refer to the cited decisions and the applicable legal principles., The case of Lalit Somdatta Nagpal (supra) involved questions relating to the application of the Maharashtra Control of Organised Crime Act, 1999 in respect of offences alleged to have been committed under Sections 3 and 7 of the Essential Commodities Act, 1955. Having regard to the Essential Commodities (Special Provisions) Act, 1981, which was to remain in force for fifteen years only and wherein the power to impose punishment was limited to two years, the Supreme Court of India held that even when the power of the court to impose punishment was limited to two years, the offence continued to remain punishable for a maximum period of seven years so as to attract the provisions of the Maharashtra Control of Organised Crime Act, 1999. The Court disapproved the view of the High Court and agreed with the submissions on behalf of the respondents regarding strict interpretation of the provisions and strict observance by the authorities, observing that the provisions of the Maharashtra Control of Organised Crime Act have been enacted to deal with organised criminal activity in relation to offences likely to create terror and to endanger the economy of the country, for which stringent measures have been adopted., In that case the Court found that the sanction had been granted with complete non‑application of mind and therefore disapproved it, stating: the sanction granted by the Special Inspector General of Police, Kolhapur Range, on 31‑08‑2004, under Section 23(1)(a) of the Maharashtra Control of Organised Crime Act, 1999, revealed complete non‑application of mind as it appeared to have been given upon consideration of an enactment which is non est. Even the subsequent approval order of 22‑08‑2005 referred to alleged violations of sales tax and excise laws, which were not intended to be the basis for application of the Maharashtra Control of Organised Crime Act, 1999. The Court held that to apply the provisions of the Act, coercive acts and violence must be spelt out to bring the unlawful activity within the definition of organised crime in Section 2(1)(e). Both sanctions were found to be given mechanically, vitiated and cannot be sustained. The Court emphasized that the authorities must ensure strict adherence to the provisions of the Act, which was not done in the instant case., In the case of Ranjitsing Brahmajeetsing Sharma (supra), during the tenure of the appellant as Commissioner of Police, Pune, fake stamp papers worth rupees 2.91 lakhs were seized, leading to an FIR for offences under Sections 120‑B, 255, 249, 260, 263(a) and (b), 478, 472 and 474 read with Section 34 of the Indian Penal Code. Earlier, Abdul Karim Ladha Telgi was arrested for alleged offences of printing counterfeit stamps and forgery, and the provisions of the Maharashtra Control of Organised Crime Act, 1999 were invoked against him, with the appellant alleged to have rendered help and support to the organised crime syndicate while functioning as Commissioner of Police at different places. The Supreme Court of India was essentially concerned with the operation of Section 24 of the Maharashtra Control of Organised Crime Act, providing for punishment of public servants failing in discharge of their duties. After taking an overall view, the Court formed the prima facie opinion that the High Court might not have been entirely correct in concluding that the appellant committed an offence under Sections 3(2) as well as 24 of the Maharashtra Control of Organised Crime Act, and thus the interim bail granted to the appellant was continued., The Court referred to the objects and reasons for the enactment and the connotations of the expression ‘any unlawful means’, stating that the expression must refer to any act which has a direct nexus with the commission of a crime which the Maharashtra Control of Organised Crime Act seeks to prevent or control. An offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated by the Statement of Objects and Reasons. Only because a person cheats or commits a criminal breach of trust repeatedly does not, by itself, suffice to attract the provisions of the Act; mens rea is a necessary ingredient for commission of a crime under the Maharashtra Control of Organised Crime Act., It is thus not in doubt that the provisions of the Maharashtra Control of Organised Crime Act need to be strictly construed and, for their application, an unlawful activity has to fall within the periphery of organised crime. However, the question remains as to the import of the requirement of strict construction of the stringent provisions. A brief reference to the fundamental legal principles in that regard is apposite., In the Principles of Statutory Interpretation by Justice G.P. Singh, the rule of construction applicable to a penal statute is stated: ‘Penal statutes are not to be enlarged by implication or extended to cases not obviously within their words and purport. But where the words are general and include various classes of persons, no authority would justify the court in restricting them to one class or giving them the narrowest interpretation where the mischief to be redressed by the statute is equally applicable to all of them.’, The meaning and import of the expression ‘strict construction’ have also been explained in Advanced Law Lexicon by P. Ramanatha Aiyar: Strict construction of a statute refuses to expand the law by implications or equitable considerations, but confines its operation to cases clearly within the letter of the statute as well as within its spirit or reason, without defeating the manifest purpose of the legislature. When a provision is ambiguous, the narrow (i.e., strict) sense is not necessarily the literal sense. Statutes exercising the power of taxation or delegating power to political subdivisions are to be strictly construed., As far as the applicability of the rule of strict construction to the Maharashtra Control of Organised Crime Act is concerned, being a special penal statute, no one is to be made subject to this law by implication or presumption, and all doubts concerning its application would ordinarily be resolved in favour of the accused. However, the rule of strict construction cannot be applied in an impracticable manner so as to render the statute nugatory. In other words, the rule is not intended to put all provisions in such a tight iron cast that they become practically unworkable, thereby defeating the purpose of the law., The Supreme Court of India, in Balram Kumawat v. Union of India & Ors. (2003) 7 SCC 628, observed that the purpose of law is not to allow the offender to sneak out of the meshes of law. The Court held that even in relation to a penal statute, a narrow and pedantic, literal and lexical construction may not always be given effect; the law must be interpreted having regard to the subject‑matter of the offence and the object of the law it seeks to achieve., Regarding the application of the Maharashtra Control of Organised Crime Act, it is required to see whether the basic and threshold requirements, as per the combined reading of clauses (d), (e) and (f) of Section 2(1), are fulfilled. If they are not, mere use of the expressions of the statute in the sanction order would be of no effect; conversely, if the requirements are fulfilled, the absence of a particular word in the sanction order would not take away the substance of the matter. Strict adherence by the authorities to the requirements of the Act cannot be stretched beyond common sense and practical requirements in terms of the letter and spirit of the statute., In the case of Kavitha Lankesh (supra), this Court exposited the fundamentals for invocation of similar provisions of the Karnataka Control of Organised Crime Act, 2000, stating that the crucial fact is the recording of an offence of organised crime, not merely a crime against an individual offender. The prior approval under Section 24(1)(a) is valid only if there is discernible information about the commission of an offence of organised crime by known or unknown persons who are members of the organised crime syndicate. The competent authority need not wade through material to ascertain the specific role of each accused; it must focus on whether the information reveals the commission of an organised crime., Having taken note of the relevant principles, we may proceed with their application to the present case. The main plank of the case argued on behalf of the appellant is that the threshold requirement of his involvement in two or more cases involving the object of gaining pecuniary or similar benefits is not existing and, therefore, even if the referred cases are taken at face value, the provisions of the Maharashtra Control of Organised Crime Act are not applicable. While examining this line of argument, we observe that the submissions are premised on an incorrectly framed question, which has led to incorrectly framed contentions., The opening paragraph of the written submissions states: ‘Whether the minimum threshold laid down in Section 2(d) of the Act viz. minimum two charge‑sheeted cases with allegations of violence for pecuniary benefit has been fulfilled in the present matter?’ The appellant further contends that, by virtue of Section 2(d) read with Sections 2(e) and 2(f), two charge‑sheets are required with allegations of (a) violence and (b) the object of gaining pecuniary benefit or other similar benefit. Neither the question nor the suggested ingredients are in conformity with the plain provisions of the statute., A bare look at clause (e) of Section 2(1) makes it clear that organised crime means any unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion or other unlawful means. Limiting the activity only to the use of violence is incorrect, as the provision also contemplates threat, intimidation, coercion and other unlawful means. Actual use of violence is not always a sine qua non for an activity to fall within the mischief of organised crime., The second part of the requirement, namely the objective of the activity, is also not limited to pecuniary benefits; it may also include gaining undue economic or other advantage. The proposition that the object must be pecuniary benefit or similar benefit misses the specific phraseology of the enactment which refers to undue economic or other advantage apart from pecuniary benefit., The Full Bench of the Bombay High Court, in Jagan Gagansingh Nepali @ Jagya (supra), examined the connotations of the expression ‘other advantage’ occurring in Section 2(1)(d). The Court answered that the term ‘other advantage’ cannot be read as ejusdem generis with the words ‘pecuniary benefits’ and ‘undue economic advantage’; it must be given a wider meaning., The High Court, while giving its answer, noted that the existing legal framework—penal and procedural laws and the adjudicatory system—was inadequate to curb or control the menace of organised crime. It observed that organised crime poses a serious threat to society beyond national boundaries, is fuelled by illegal wealth generated through contract killing, extortion, smuggling, narcotics trade, kidnapping for ransom, protection money, and money laundering, and that organised criminal syndicates cooperate with terrorist gangs, fostering narco‑terrorism. The Court further observed that organised criminals make extensive use of wire and oral communications, necessitating a special law with stringent and deterrent provisions, including power to intercept communications., The Preface of the Act notes that criminal activities such as murders of film‑industry tycoons, extortion of businessmen, and abductions show that criminal gangs are active in the State. The legislative intent, as reflected in the Preamble, Statement of Objects and Reasons and Preface, is not limited to the activities mentioned but extends to various other activities of organised crime syndicates, with the aim of controlling unlawful elements spreading terrorism and minimizing fear in society., The Court concluded that the purpose behind enacting the Maharashtra Control of Organised Crime Act was to curb the activities of organised crime syndicates or gangs. The Preamble and Statement of Objects and Reasons do not lead to a narrower meaning that the Act was enacted only for curbing activities involving pecuniary gains or undue economic advantages. The mischief sought to be cured is to curb and control the menace of organised crime; a narrower interpretation would frustrate the object of the Act., The Court also observed that Section 3(4) provides punishment merely by virtue of a person being a member of an organised crime syndicate. If the respondents’ contention were accepted, Section 3(4) would become redundant. Various unlawful continuing activities by a member of an organised crime syndicate may be for advantages other than economic or pecuniary., We have no hesitation in endorsing the views of the Full Bench decision of the Bombay High Court in Jagan Gagansingh Nepali @ Jagya.
id_873	2	Looking to the object and purpose of this enactment, the expression other advantage cannot be read in a restrictive manner and is required to be given its full effect. The High Court of the State has rightly said that there could be advantage to a person committing a crime which may not be directly leading to pecuniary advantage or benefit but could be of getting a strong hold or supremacy in the society or even in the syndicate itself. As noticed above, the purpose of this enactment is to be kept in view while interpreting any expression therein and in the name of strict construction, its spirit and object cannot be whittled down., A chart has been placed before us on behalf of the appellant in relation to the aforesaid seven cases with certain comments. As regards the case at Serial No. 1, it is submitted that no pecuniary benefit or undue economic gain was alleged in the matter where it was alleged that during house search, the police found a sword from the house of Keval Patel and the appellant was staying there as a tenant. As regards the case at Serial No. 2, it is submitted that the allegation against the appellant had been of giving a blow with a knife to the complainant due to previous enmity and quarrel on account of friendship with a girl. Again, it is submitted that none of the members of the alleged crime syndicate are accused persons and no pecuniary benefit or other advantage is alleged. The said case resulted in acquittal with one witness turning hostile and other witnesses not turning up. As regards the case at Serial No. 3, it is contended that this was the first joint offence with the accused Roshan Sheikh and in fact, it had been the matter of cross FIRs; and the same were quashed by the High Court of the State on 13.04.2016. It is submitted that it had been a matter of clash between two groups of people and no elements of pecuniary benefit or undue economic gain or other advantage was alleged. As regards the case at Serial No. 4, it is submitted that the incident took place in a bar because of some argument between the waiter and the customer and no such element of pecuniary benefit or undue economic gain or other advantage is shown. As regards the case at Serial No. 5, it is submitted that this has also been a matter of counter FIRs where first FIR was lodged by Sameer Sharma and the appellant is an eye‑witness therein; and no pecuniary benefit or undue economic gain or other advantage to the accused is shown in this crime. As regards the case at Serial No. 6, it is submitted that the charge‑sheet does not disclose any act committed by any syndicate, or any crime for pecuniary gain; that during investigation, offences under Sections 3 and 25 of the Arms Act were deleted; and taking this case also into account was not correct., The common thread of violence or threat of violence or unlawful means running through all of these cases is not a matter requiring any analysis, for the same being apparent on the face of the record. Significantly, the aforesaid had not been the cases involving the appellant singularly; and more significantly, the alleged team leader Roshan Sheikh is the co‑accused in at least three previous cases. This is apart from the recurrence of other co‑accused persons in one case or the other. It has rightly been pointed out on behalf of the respondent State that in order to attract the Maharashtra Control of Organised Crime Act, every previous case need not be of the object of gaining pecuniary benefit alone. The cases in question, apart from involving offences against the human body and property, also include a variety of other offences including those of rioting while armed with deadly weapons; causing insult to provoke breach of peace; and criminal intimidation. They also include the offence under the Arms Act. In all the referred cases, use of violence has specifically been alleged., The crime chart aforesaid, the nature of activities and the persons involved leave nothing to doubt that the involvement of the appellant in such crimes and unlawful activities which are aimed at gaining pecuniary advantages or of gaining supremacy and thereby, leading to other unwarranted advantages is clearly made out., The criticism of the impugned sanction order dated 05.11.2020, that it had been of mere repetition of the expression of statute, is also difficult to be accepted. The High Court of the State, in the impugned order, has rightly observed that the said order is required to be viewed in its totality, and its substance cannot be ignored by isolated reference to a particular line or expression. We have reproduced the relevant contents of the order dated 05.11.2020 particularly those concerning the present appellant; and we have not an iota of doubt that firstly, the approving authority, and then, the sanctioning authority, were conscious of the requirement of law and indeed examined the matter only with reference to such requirement; and issued the orders in question only after arriving at the requisite satisfaction. It has rightly been pointed out on behalf of the respondent that in such matters, the competent authority has to focus essentially on the factum whether the material in question reveals the commission of crime, which is an organised crime, committed by the organised crime syndicate., In view of the above, reference to the decision of the Supreme Court of India in Jagannath Misra (supra), which essentially related to a matter of preventive detention, hardly makes out any case for interference. The question of arriving at satisfaction has been dealt with by the Supreme Court of India in the following: Now we have pointed out that the order of detention in this case refers to six out of eight possible grounds on which a person can be detained under Section 3(2)(15). Of these eight grounds under Section 3(2)(15) one refers to foreigners that is, of being of hostile origin. Therefore in the present case the order really mentions six out of seven possible grounds which can apply to an Indian whose detention is ordered under Section 3(2)(15). We do not say that it is not possible to detain a citizen on six out of seven possible grounds under Section 3(2)(15); but if that is done it is necessary that the authority detaining a citizen should be satisfied about each one of the grounds that the detention is necessary thereon. But if it appears that though the order of detention mentions a large number of grounds the authority concerned did not apply its mind to all those grounds before passing the order, there can in our opinion be no doubt in such a case that the order was passed without applying the mind of the authority concerned to the real necessity of detention. In the present case as we have already pointed out six grounds out of possible seven grounds on which a citizen can be detained have been mentioned in the order; but in the affidavit of the Minister we find mention of only two of those grounds, namely, safety of India (which may be assumed to be the same as public safety) and the maintenance of public order. In these circumstances there can be little doubt that the authority concerned did not apply its mind properly before the order in question was passed in the present case. Such discrepancy between the grounds mentioned in the order and the grounds stated in the affidavit of the authority concerned can only show an amount of casualness in passing the order of detention against the provisions of Section 44 of the Act. This casualness also shows that the mind of the authority concerned was really not applied to the question of detention of the petitioner in the present case. In this view of the matter we are of opinion that the petitioner is entitled to release as the order by which he was detained is no order under the Rules for it was passed without the application of the mind of the authority concerned. There is another aspect of the order which leads to the same conclusion and unmistakably shows casualness in the making of the order. Where a number of grounds are the basis of a detention order, we would expect the various grounds to be joined by the conjunctive and and the use of the disjunctive or in such a case makes no sense. In the present order however we find that the disjunctive or has been used, showing that the order is more or less a copy of Section 3(2)(15) without any application of the mind of the authority concerned to the grounds which apply in the present case., In the said case, where there was discrepancy in the detention order and the affidavit of the Minister as regard the grounds of detention, this Court found that the authority concerned did not apply its mind properly. In the present case, on the contrary, the meticulously drawn sanction order dated 05.11.2020 leaves nothing to doubt that the sanctioning authority had indeed applied its mind to all the material and relevant aspects. Therefore, this contention on behalf of the appellant must fail., A long deal of arguments on behalf of the appellant before us had also been about the sanctioning authority purportedly taking irrelevant factors into account and for that matter, acquittal in relation to Crime No. 13 of 2012 and of quashing the proceedings in Crime No. 482 of 2015 have been referred. In our view, this line of arguments also remains bereft of substance., The threshold requirement in terms of clause (d) of the Maharashtra Control of Organised Crime Act is that of the activity or activities undertaken by the accused persons either singly or jointly, as a member of an organised crime syndicate, which involves a cognizable offence punishable with imprisonment of three years or more and in respect of which more than one charge‑sheet has been filed before the competent Court within ten years and cognizance had been taken. Crime No. 13 of 2012 was registered on 11.01.2012 and involved two accused persons including the appellant and related to the offence under Section 307 of the Indian Penal Code read with Section 34 of the Indian Penal Code. Thus, the prescribed period and nature of offence with reference to prescribed punishment were met. Cognizance had also been taken in the said case and that is how it went to trial. The prosecution could examine only one person as the alleged eye‑witness but he turned hostile and did not support the case of the prosecution. The prosecution failed to examine the other witnesses including the complainant and the injured and even the non‑bailable warrant issued in their relation were returned unserved with the report that they were not traceable. Thus, the prosecution failed to substantiate the charges. The case answers to all the requirements of clause (d) of Section 2(1) of the Maharashtra Control of Organised Crime Act. As regards the other case, being Crime No. 482 of 2015 dated 20.12.2015, the offences had been of Sections 143, 147, 148, 149, 294, 324, 325 of the Indian Penal Code. The co‑accused person of the previously referred Crime No. 13 of 2012 was the co‑accused person in this case too, apart from the other co‑accused persons, including Roshan Sheikh, said to be the team leader. The said case also answers to all the requirements of clause (d) of Section 2(1) of the Maharashtra Control of Organised Crime Act. In the said case, there had been a cross FIR in Crime No. 481 of 2015 and it appears that there was a settlement for which, the High Court of the State, by its order dated 13.04.2016, considered it appropriate to quash the proceedings. We would refer to the implications of such quashing of proceedings also a little later. Suffice it to notice for the present purpose that the said case too answers to all the requirements of clause (d) of Section 2(1) of the Maharashtra Control of Organised Crime Act. There is no dispute to the fact that at least two more cases, being Crime No. 196 of 2016 and Crime No. 83 of 2017, both of Sitabuldi Police Station, are also pending wherein charge‑sheets have been filed and they include varying offences, including those of Sections 148 and 326 of the Indian Penal Code, clearly meeting all the essential requirements. In both these cases, the appellant is an accused person along with a few common co‑accused persons, including the alleged team leader Roshan Sheikh. It is not the case of the appellant that cognizance had not been taken in those cases. The submissions about taking irrelevant factors into account with reference to the said two cases resulting in acquittal and discharge must fail for the simple reason that for the purpose of clause (d) of Section 2(1) of the Maharashtra Control of Organised Crime Act, the result of a particular matter is not decisive of the question as to whether the activity in question answers to the description of continuing unlawful activity or not. These had not been offences committed single‑handed by the appellant and charge‑sheets were indeed filed therein. The matter of settlement because of cross‑cases or a matter of acquittal because of the witnesses not turning up could hardly be of any relevance so far as clause (d) of Section 2(1) of the Maharashtra Control of Organised Crime Act is concerned. Therefore, it cannot be said that any irrelevant matter has been taken into consideration by the sanctioning authority. The case of Khaja Bilal Ahmed (supra) as relied upon on behalf of the appellant, even otherwise, has no direct application for being related to a preventive detention matter. In any case, there is no quarrel with the proposition therein that for a detaining authority, it is incumbent that its satisfaction must not be based on irrelevant or invalid grounds but, we are clearly of the view that in the present case, the authority cannot be said to have proceeded on any irrelevant consideration. What is significant and pertinent for the purpose of Section 2(1)(d) is the involvement of the person concerned in the referred activity and filing of charge‑sheet and taking of cognizance in the offence as predicated. Acquittal or discharge is of no significance., As regards the use of confessional statement by the sanctioning authority, we are unable to find any fault therein. In the first place, it is noticeable that the confessional statements of the co‑accused persons, including the alleged team leader, have not been used by the sanctioning authority as the only basis of the sanction order. Those have been referred to as part of evidence collected in the present offence, which included various other pieces of evidence, i.e., mobile phones, vehicles, pen drive, weapons etc. In any case, the value attached to the confessional statement, while overriding the provisions of the Criminal Procedure Code and the Evidence Act in terms of Section 18 of the Maharashtra Control of Organised Crime Act, cannot be gainsaid and cannot be ignored. The Supreme Court of India has, in the case of Kamal Ahmed Mohammed Vakil Ansari (supra), observed and held, inter alia, as under: Section 18 of the Maharashtra Control of Organised Crime Act through a non obstante clause overrides the mandate contained in Sections 25 and 26 of the Evidence Act, by rendering a confession as admissible, even if it is made to a police officer (not below the rank of Deputy Commissioner of Police). Therefore, even though Sections 25 and 26 of the Evidence Act render inadmissible confessional statements made to a police officer, or while in police custody, Section 18 of the Maharashtra Control of Organised Crime Act overrides the said provisions and bestows admissibility to such confessional statements, as would fall within the purview of Section 18 of the Maharashtra Control of Organised Crime Act. It is however relevant to mention that Section 18 of the Maharashtra Control of Organised Crime Act makes such confessional statements admissible only for the trial of such person, or co‑accused, abettor or conspirator. Since Section 18 of the Maharashtra Control of Organised Crime Act is an exception to the rule laid down in Sections 25 and 26 of the Evidence Act, the same will have to be interpreted strictly, and for the limited purpose contemplated thereunder. The admissibility of a confessional statement would clearly be taken as overriding Sections 25 and 26 of the Evidence Act for purposes of admissibility, but must mandatorily be limited to the accused confessor himself, and to a co‑accused (abettor or conspirator). The reference in the confessional statements of the two co‑accused persons in relation to the appellant is not a factor entirely irrelevant for the appellant being a co‑accused person with them. The detailed discussion by the sanctioning authority to the substantial pieces of evidence collected in the matter rather fortifies the conclusion that the sanctioning authority has meticulously applied its mind to all the relevant factors and has taken an overall view of the matter before forming the final opinion in favour of granting the sanction. The contention in that regard also fails. The learned counsel for the State has fairly and rightly indicated, with reference to the decision of the Supreme Court of India in the case of Vinod G. Asrani (supra), that the validity of sanction could always be determined by the Trial Court during the course of trial where the sanctioning authority could be examined and the appellant will have sufficient opportunity to contest the same, including that of cross‑examining the sanctioning authority. In fact, the High Court of the State has also taken care in its impugned order to make it clear that the observations were only prima facie and nothing in the order would influence or prejudice the trial or pre‑empt any legitimate defence of the appellant. In Vinod G. Asrani (supra), the Supreme Court of India has observed and held as under: The scheme under Section 23 of the Maharashtra Control of Organised Crime Act is similar and Section 23(1)(a) provides a safeguard that no investigation into an offence under the Maharashtra Control of Organised Crime Act should be commenced without the approval of the authorities concerned. Once such approval is obtained, an investigation is commenced. Those who are subsequently found to be involved in the commission of the organised crime can very well be proceeded against once sanction is obtained against them under Section 23(2) of the Maharashtra Control of Organised Crime Act. As to whether any offence has at all been made out against the petitioner for prosecution under the Maharashtra Control of Organised Crime Act, the High Court of the State has rightly pointed out that the accused will have sufficient opportunity to contest the same before the Special Court. For what has been discussed hereinabove, this appeal must fail on merits., Having said so, we deem it appropriate to revert to the two aspects of the matter which we had partly left for discussion at a later stage: one being of acquittal and discharge in the respective criminal cases; and second being the effect of the fact that the appellant has been declared as an absconder., As noticed, in the case relating to Crime No. 13 of 2012, the appellant and the co‑accused person were acquitted by the Trial Court for the only private witnesses examined in the matter turning hostile and all other witnesses including the complainant and the injured person not turning up at all. The enactment in question, that is, the Maharashtra Control of Organised Crime Act, essentially intends to deal with the criminal activities by an organised crime syndicate or gangs; and protection of witnesses is also one of the avowed objectives of this enactment. It has rightly been contended on behalf of the respondents that the Maharashtra Control of Organised Crime Act seeks to curb such menace, where a criminal case cannot be taken to its logical conclusion because of the witnesses either turning hostile or not turning up at all. The provision for witness protection, as contained in Section 19 of the Maharashtra Control of Organised Crime Act, is one of those steps. Having examined the judgment of the Sessions Court dated 09.05.2017, as placed on record on behalf of the appellant, we could only say that the very reason of acquittal in the said case rather fortifies the requirements of invocation of the Maharashtra Control of Organised Crime Act against the appellant, of course, when other requirements of Sections 2(1)(d), (e) and (f) are fulfilled. They are indeed fulfilled, as noticed above., As regards the implication of proclamation having been issued against the appellant, we have no hesitation in making it clear that any person who is declared as an absconder and remains out of reach of the investigating agency and thereby stands directly at conflict with law ordinarily deserves no concession or indulgence. By way of reference, we may observe that in relation to the indulgence of pre‑arrest bail in terms of Section 438 of the Criminal Procedure Code, this Court has repeatedly said that when an accused is absconding and is declared as proclaimed offender, there is no question of giving him the benefit of Section 438 of the Criminal Procedure Code. The observation applies with more vigour to the extraordinary jurisdiction of this Court under Article 136 of the Constitution of India. The submissions on behalf of the appellant for consideration of his case because of application of stringent provisions impinging his fundamental rights does not take away the impact of the blameworthy conduct of the appellant. Any claim towards fundamental rights also cannot be justifiably made without the person concerned himself adhering to and submitting to the process of law. For example, Prem Shankar Prasad v. State of Bihar and Anr.: (2021) SCC OnLine SC 22. Thus, challenge to the judgment as passed by the High Court of the State on 16.12.2021, and to the sanctioning order dated 05.11.2020, was required to be rejected when the appellant had indeed been declared absconder. However, as observed hereinbefore, we have considered it proper to first examine the matter on merits because notices had been issued to the respondents and it had appeared serving the cause of justice to deal with the matter on merits. As noticed, all the contentions urged on behalf of the appellant remain baseless and the challenge herein ought to fail. Thus, we need not say any more in the present case as regards the effect of absconsion., Accordingly, and in view of the above, this appeal fails and is, therefore, dismissed.
id_874	0	W.P.No.2191 of 2015 Petitioners: V. Shanmugam (Deceased), S. Sharmila, Divya Bharathi. Respondents: Union of India represented by the Secretary, Ministry of Youth Affairs and Sports, Room No.3, C‑Wing, Shastri Bhawan, New Delhi 110001; State of Tamil Nadu represented by the Secretary to Government Higher Education Department, Secretariat, Chennai 600009; the District Collector, Kancheepuram District; the Registrar, Anna University, Chennai 600025; the National Service Scheme Programme Coordinator, Anna University, Chennai 600025; Indian Maritime Foundation (a registered charitable trust), 1/402 Gera Gardens, Koregaon Road, Pune 411001; Chairman, Pallavan Educational Trust, 25, 1st Street, Vedachalam Nagar, Kancheepuram 631501; the Principal, Pallavan College of Engineering, Thimmasamudram, Kancheepuram 631502; Prof. Jayaraman; Prof. Ilayakumar. Petitioners’ counsel: Mister M. Radhakrishnan. Respondent counsel: Mister M. Arun Kumar, Senior Central Government Panel Counsel for the Union of India; Mister P. Kumaresan, Additional Advocate General assisted by Mister T. Arun Kumar, Additional Government Pleader for the State of Tamil Nadu; Mister V. Meenakshi Sundaram for the District Collector; Mister M. Arun Kumar for Indian Maritime Foundation and Associates; Mister G. Saravanan for the Principal; No appearance for Prof. Jayaraman and Prof. Ilayakumar., The writ petition is filed under Article 226 of the Constitution of India for the issuance of a writ of mandamus directing the respondents to pay the petitioner a minimum compensation of Rupees Twenty Five Lakhs with interest at the rate of twelve percent per annum from the date of this writ petition till the date of payment for the death of his son S. Madhanagopal, who was a third‑year B.E. (Electrical and Electronics Engineering) student in Pallavan College of Engineering, Thimmasamudram, Kancheepuram., The first petitioner states that he hails from a poor family and runs a tea stall at Pallikudathan Street, Kancheepuram. He had two children, a daughter and a son. His son, S. Madhanagopal, was studying in the eighth respondent, Pallavan College of Engineering, as a third‑year B.E. (Electrical and Electronics Engineering) student. Unfortunately, the son died on 27 September 2014 while participating in the National Service Scheme programme called International Coastal Clean‑up organised by respondents four, six and eight in the coastal area from Koovathur to Thenpattinam, Kancheepuram District. There were fifty‑four students along with the son of the petitioner. The son left home at six o’clock in the morning on 27 September 2014 to participate in the programme. At about three o’clock in the afternoon on the same day, the family members of the petitioner were informed through a residential phone by the tenth respondent that his son had died at about two o’clock in the afternoon by drowning in the sea. The respondents seven to ten, who were responsible for the safety of the son, had not even lodged a complaint with the police about the death., A police complaint was registered at E5 Koovathur Police Station, Kancheepuram District. A legal notice was issued by the father‑in‑law of the first petitioner on 4 October 2014 to the eighth respondent and other authorities. The eighth respondent replied stating that due care and diligence were taken by the faculty members and that the son of the petitioner himself invited the fatal end and therefore the college is not responsible. During the pendency of the writ petition, the first petitioner died on 20 April 2020. Subsequently, the wife and daughter of the first petitioner were substituted in the writ petition., The learned counsel for the petitioners states that the National Service Scheme falls under the first respondent, Union of India, which is responsible for the administration, policy planning, implementation and evaluation of National Service Scheme programmes. The State of Tamil Nadu has a public duty to explain the policies of the Union of India regarding the National Service Scheme programme to the youth and to implement successfully all National Service Scheme programmes. The Government of India extends financial assistance for establishing the State National Service Scheme Cell., The ninth respondent is the National Service Scheme coordinator in the eighth respondent, the college. The fifth respondent is the National Service Scheme coordinator at the university level and the ninth respondent is the National Service Scheme coordinator at the college level. They have conducted the programme called International Coastal Clean‑up. The National Service Scheme programmes are conducted by utilising public funds. The third respondent, being the District Collector of Kancheepuram District, ought to have taken adequate safety measures with the help of the Coast Guard personnel to oversee the entire coastal clean‑up in the said coastal area. When two students, namely the son of the first petitioner and one Lalith Kumar, were drowning in the sea, a courageous student named Michael Antony jumped into the sea and tried his best to save both of them, but unfortunately only Lalith Kumar could be saved. No personnel from the Coast Guard Department were available to save the lives of the students in the event of danger. No precautionary measures were taken by the authorities to ensure that an adequate number of trained swimmers were deployed for the purpose of taking care of the students who were engaged in the social service of coastal clean‑up., The learned counsel for the petitioners states that the first petitioner’s son lost his life in the prime of life. He had a bright future ahead. He was a third‑year student in B.E., a rank holder, and the only son for the first petitioner. Under those circumstances, the authorities who are liable and responsible are bound to pay compensation., The learned counsel for the petitioner relied on the judgment of the Orissa High Court in the case of Prabir Kumar Das versus State of Odisha and Others (W.P.(C) No.12553 of 2012). The Orissa High Court held that negligence as a tort is defined by Winfield as ‘the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff.’ The existence of a duty‑situation or a duty to take care is essential before a person can be held liable in negligence. In the classical words of Lord Atkin, ‘there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances.’ The liability for negligence, whether styled as such or treated as a species of culpa, is based upon a general public sentiment of moral wrongdoing for which the offender must pay. Acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour, receives a restricted reply. One must take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure one’s neighbour. Persons who are so closely and directly affected by an act that one ought reasonably to have them in contemplation are considered neighbours in law., It is now an obsolete view that ‘the duty to be careful only exists where the wisdom of our ancestors has decreed that it shall exist’. In Donoghue v. Stevenson the House of Lords recognized a new duty situation and held that a manufacturer owed a duty of care not only to the wholesale dealer but also to the ultimate consumer of his product. Lord Macmillan stated that the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed. In Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd. (1964) AC 465 (HL), a new duty‑situation was recognized. The law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care and a negligent, though honest, misrepresentation in breach of this duty may give rise to an action for damages apart from contract or any fiduciary relationship. Lord Pearce said that how wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the courts’ assessment of the demands of society for protection from the carelessness of others. The principles governing the recognition of new duty‑situations were more recently considered in the case of Home Office v. Dorset Yacht Co. Ltd. (1970) All ER 294 (HL). In that case, Borstal trainees escaped due to the negligence of Borstal officers and caused damages to a yacht. The owner sued the Home Office. It was held that the causing of damage to the yacht by the trainees ought to have been foreseen by the officers as likely to occur if they failed to exercise proper control or supervision and therefore the officers prima facie owed a duty of care to the owner. Lord Reid observed that although earlier courts were reluctant to recognise new duties, the law of negligence now depends on principle and recognised principles apply to new points., The Honorable Supreme Court of India in the case of Kaushal Kishor versus State of Uttar Pradesh and Others held that public law proceedings serve a different purpose than private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilise public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. When the court moulds the relief by granting compensation in proceedings under Article 32 or 226 seeking enforcement or protection of fundamental rights, it does so under public law by way of penalising the wrongdoer and fixing liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood as in a civil action for damages under private law but in the broader sense of providing relief by an order of making monetary amends under public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or to prosecute the offender under penal law., The learned counsel for the petitioners further relied on the judgment of the Constitution Bench of the Honorable Supreme Court of India in the case of Basheshar Nath versus Commissioner of Income Tax, New Delhi and Rajasthan and Another (AIR 1959 Supreme Court 149). The Apex Court ruled that the true intent and effect of Article 14 is that a breach of the obligation imposed on the State cannot be waived by any person. The Constitution commands the State to ensure equality of status and opportunity, and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. A breach of a fundamental right cannot be waived by a citizen, and the State must answer for any failure to fulfil its constitutional mandate., The learned counsel also referred to the case of Rajkot Municipal Corporation versus Manjulben Jayantilal Nakum and Others, where the Supreme Court dealt elaborately with the principles governing the grant of compensation., The senior Central Government Panel Counsel appearing on behalf of the first respondent objected to the contention that the respondents are liable, stating that the Coastal Clean‑up Programme is a regular activity in the National Service Scheme. The role of the Government of India in the National Service Scheme is described as follows: (a) The National Service Scheme is a voluntary youth development programme started in 1969, during the birth centenary year of Father of the Nation Mahatma Gandhi. Its main objective is the personality development of students through community service. It has been implemented in all twenty‑nine states and seven union territories of the country. The overall aim is to give an extension dimension to the higher education system and orient student youth for community service while they study in educational institutions. (b) National Service Scheme activities are divided into two major regular activities. Students undertake various programmes in college or school campuses, adopted villages and urban slums during weekends or after college hours, amounting to one hundred and twenty hours in a year. In special camping programmes, students take part in a seven‑day camping programme on community development in an adopted village or urban slum with specific projects, involving a volunteer commitment of two hundred and forty hours of regular activities and one special camping programme of seven days during a two‑year volunteership. Participation is purely voluntary and there is no compulsion to join the National Service Scheme. (c) The National Service Scheme programme is funded by the Government of India and the State Governments in the ratio seven to five. The pro‑rata grant for regular activities is Rs 2,501 per volunteer per annum and for the special camping programme is Rs 4,501 per volunteer for two years. (d) The Ministry of Youth Affairs and Sports, Government of India, is the nodal ministry responsible for implementation of the National Service Scheme at the national level. For administrative convenience, the ministry has set up fifteen National Service Scheme regional directorates in the country for implementation in universities and colleges, and there is a nodal department in each state government overseeing a State National Service Scheme Cell headed by a State Coordinator or State Liaison Officer. Empanelled Training Institutes identified by the ministry provide training to programme officers. (e) The Coastal Clean‑up Programme is not identified by the nodal ministry as a mandatory regular activity for the National Service Scheme. Universities and National Service Scheme units are free to choose viable programmes for community development involving volunteers. (f) The ministry does not have a memorandum of understanding or any undertaking with the Indian Maritime Foundation (registered charitable trust) to organise a coastal clean‑up programme in association with the National Service Scheme. The National Service Scheme cell of Anna University is not responsible for the coastal clean‑up programme jointly organised by the Indian Maritime Foundation, Chennai branch and the National Service Scheme unit of Pallavan College of Engineering. The programme was purely planned and executed by the National Service Scheme unit of the institution and the Indian Maritime Foundation, Chennai branch on 27 September 2014., The Government of India guidelines for National Service Scheme activities state that the programme aims to make volunteers better citizens through personality development via community service. Administration is by the Ministry of Youth Affairs and Sports. The Programme Adviser’s Cell is responsible for planning, implementation and evaluation at the national level. The State Advisory Committee handles state‑level planning and implementation. The University Level Advisory Committee handles university‑level planning and implementation. The College Level Advisory Committee handles college‑level planning and implementation. A student enrolled as a National Service Scheme volunteer must complete one hundred and twenty hours of community work during an academic year for a period of two years, undertaking various programmes in adopted villages, college or school campuses and urban slums during weekends and after college hours., The senior Central Government Panel Counsel appearing on behalf of the first respondent further states that with regard to the averments made in paragraphs five to seven of the petitioner’s affidavit, the first respondent has no comments, since it was not involved in the said activities, and the petitioner is put to strict proof of the same. The first respondent also denied the averments and allegations made in ground (a) of the affidavit as false and put the petitioner to strict proof. According to the guidelines, the programmes and activities to be undertaken during a year are discussed and planned in the university‑level or institutional‑level advisory committee each year. The Government of India formulates only the broad suggestive guidelines., The second respondent filed a counter affidavit stating that the eighth respondent, Pallavan College of Engineering, is a self‑financing engineering college affiliated to Anna University, Chennai. The event of the National Service Scheme programme had not been informed to the fourth and fifth respondents, namely the Registrar of Anna University and the National Service Scheme Programme Coordinator of Anna University. It was only a one‑day event organised and coordinated by the college itself. The fourth and fifth respondents were not aware of the programme. The Director of Technical Education, in his letter No.28756/J2/2007 dated 25 September 2007, issued instructions that all technical institutions must follow due safety measures while conducting functions, programmes or educational tours. Therefore, the second respondent is not responsible for the untoward incident., The fourth respondent, the Registrar of Anna University, also filed a counter affidavit stating that the one‑day programme event was conducted by the eighth respondent, the college, on its own and it was not a National Service Scheme camp organised by other respondents. The university was not informed about such a one‑day programme, it was neither organised nor coordinated by the fourth and fifth respondents, and they were totally unaware of the programme conducted by the eighth respondent. Consequently, they cannot be held responsible., The third respondent, the District Collector, reiterated that the International Coastal Clean‑up programme was conducted without any prior approval of the District Collector. Had the organisers intimated the district administration about the schedules and activities planned, the district administration would definitely have arranged appropriate safety measures, deployed sufficient security personnel and lifeguards at the venue. Therefore, the District Collector cannot be held responsible, since he was unaware of the programme organised by the eighth respondent and no approval was obtained., The eighth respondent, the college, stated that the deceased student S. Madhanagopal was about twenty‑one years old when he was studying B.E. (Electrical and Electronics Engineering) third year during the academic year 2013‑2014 and voluntarily participated in the National Service Scheme programme coordinated by the fifth respondent. Participation was not compulsory. The deceased student participated in the International Coastal Clean‑up programme on 27 September 2014. All participating students were duly and strictly instructed not to venture into the seawater for bathing, playing or swimming and to focus only on cleaning the coastal area, which was the object of the event., In spite of the clear‑cut instructions given by the college authorities not to venture into the sea, the deceased, on his own volition, entered the seawater for bathing along with other fellow students. He was captured between the tidal waves and, despite rescue efforts and first aid, was reported dead by the D.A.E. Hospital at Kalpakkam. The incident was informed to the father of the deceased student, who lodged a criminal complaint (Crime No.289 of 2014) on the file of E5 Koovathur Police Station on the same day., The college states that the student, being twenty‑one years old, had personal knowledge that entering the sea would cause harm or loss, but nevertheless he jumped into the seawater and voluntarily accepted the risk. Hence, the college will not be liable for such an act where the risk was well known to the deceased student., The college reiterates that the deceased student voluntarily entered the seawater of his own free will, without any external or internal compulsion from the college, contrary to the specific instructions not to enter the seawater, and therefore the college cannot be held responsible., Considering the arguments of the parties, the fact remains that the coastal clean‑up programme was conducted by the eighth respondent, Pallavan College of Engineering, and fifty‑four students participated in the one‑day event. The organisers did not obtain any approval from the District Collector or any other competent authority of Anna University. Anna University states that it was not a National Service Scheme programme but an event arranged at the discretion of the college without informing the university, and therefore none of the authorities can be held liable. Participation of any student in a National Service Scheme programme is voluntary in nature and not compulsory., The organisers are bound to take adequate steps to protect the safety and security of the participants. The college authorities state that they informed the students not to venture into the seawater for bathing or swimming. After the programme concluded, two students at their own volition jumped into the sea for bathing, which resulted in the death of the son of the first petitioner.
id_874	1	Thus, the deceased student jumped into the sea after the programme and without informing the Organisers and therefore, the College cannot be held responsible for the death of the student. The deceased student was aged about 21 years and was pursuing a third year Bachelor of Engineering course. He was a major and capable of taking an independent decision for his conduct. The deceased student voluntarily jumped into the seawater for bathing without informing the Organisers; the instructions were not followed by the deceased student and the other student, who was saved. As far as the instructions of the Organisers in Writ Petition No. 2191 of 2015 are concerned, they should be construed as formal, since the students are majors and capable of deciding their conduct. In the present scenario the College Authorities or the Organisers of the event cannot interfere with the rights of the major students, who are capable of taking decisions. The Organisers in advance informed the students not to venture into the seawater for bathing, swimming, etc. It is not the case that many students had jumped into the seawater. Out of 54 students, only two students jumped into the sea and one was saved and the son of the first petitioner alone was dead., That being the fact established, the question arises whether the Central and State Authorities can be held liable for the drowning of the deceased student. The petitioner as well as the eighth respondent, the College Authorities, could not establish that they obtained due approval from the District Collector for providing safety measures including life guards. They have not even informed the National Service Scheme Coordinators of Anna University. Thus, none of the authorities were aware of such coastal clean‑up programme in Writ Petition No. 2191 of 2015 conducted by the eighth respondent, the College, at their discretion. Anna University states that it is not even a National Service Scheme programme; it was a cleaning programme arranged by the College without informing the University. Accordingly, the High Court has no hesitation in forming an opinion that respondents 1 to 6 are not responsible for the event conducted by the eighth respondent or for the death of the student., It is not in dispute that the eighth respondent, Pallavan College of Engineering, organised the coastal clean‑up programme and informed the students for their voluntary participation. No doubt, 54 students voluntarily participated in the coastal clean‑up programme conducted on 27 September 2014. The Organisers were present while conducting the programme and instructed the students not to venture into the seawater for bathing, swimming, etc. If the students, who have attained the age of majority and are 21 years old, voluntarily jumped into the sea for bathing without informing the Organisers after completion of the programme, the Organisers cannot be held responsible., Since it was the voluntary act of two students to jump into the sea, the principle of volenti non fit injuria squarely applies to the facts of this case. Therefore, none can be blamed for the voluntary act of the deceased student. The deceased student at the time of drowning was aged about 21 years and capable of taking an independent decision. He had not followed the instructions given by the Organisers. Out of 54 students, two students alone jumped into the sea without informing the Organisers. While so, the Organisers cannot be held responsible for the voluntary act of the deceased student., Negligence in common parlance means and implies failure to exercise due care expected of a reasonable prudent person. It is a breach of duty and ranges from inadvertence to shameful disregard of the safety of others. In most instances it is caused by heedlessness or inadvertence, whereby the negligent party is unaware of the results which may follow from his act. In the present case, one cannot form an opinion that a 21‑year‑old, third year Bachelor of Engineering student was unaware of the consequences of jumping into the deep sea for bathing. The risk element would have been considered by the student before jumping into the sea, and he accepted the consequences voluntarily. The voluntary acceptance of risk exonerates the Organisers from liability and responsibility., The petitioners have failed to establish that no due care was taken by the Organisers of the programme. The fact remains that the eighth respondent, the College, failed to obtain approval from the District Collector nor informed the Anna University National Service Scheme Coordinators. The Coordinators informed the students not to venture into the sea for bathing, swimming, etc. Thus, the instructions were given, and when the 21‑year‑old student after completion of the programme voluntarily jumped into the sea having understood the risk, the High Court cannot conclude that the College Organisers are responsible and liable for the consequences. Even before the arrival of the Government machinery one student was saved by another student but the son of the first petitioner died. The treatment given to him failed., This being the fact, the High Court is of the considered opinion that the negligence aspect against the Authorities has not been proved by the petitioners. Therefore, the negligence on the part of the eighth respondent, Pallavan College of Engineering, is confined to the extent of not obtaining approval from the District Collector; had such approval been obtained, the District Collector would have arranged safety measures including police security., Though it appears to be an irregularity in organising such programmes, the College Authorities ought to have taken adequate measures so that, in the event of any untoward incident, the Government machinery is present where the programme is being organised. To the extent of not obtaining prior approval from the District Collector and not informing the National Service Scheme Coordinator of Anna University, the eighth respondent, Pallavan College of Engineering, undoubtedly committed lapses, and their lackadaisical approach resulted in loss of life of a student. To that extent, the College is responsible., Every educational institution, while organising programmes, educational tours, events, etc., for students, is expected to take all precautionary measures for the safety and security of the students. Though the student in the present case was aged 21 years at the time of the incident, if life guards and Government machinery had been put in place, his life would have been saved, and to that extent the College Authorities failed in their duty to obtain approval from the District Collector and to inform Anna University., It is not a case of absolute negligence on the part of the Authorities including the College and Organisers, but the College had failed to obtain necessary approval from the Competent Authorities. Hence, to that extent, they have committed an act of negligence, which is to be construed as a milder form of negligence., The High Court is inclined to grant a fixed compensation instead of adopting the multiplier method. Accordingly, the eighth respondent, Pallavan College of Engineering, Thimmasamudram, Kancheepuram, is directed to pay a sum of Rupees Five Lakh Only (Rs. 5,00,000) to the petitioners towards compensation within a period of four weeks from the date of receipt of a copy of this order., With the above direction, the writ petition stands allowed. No costs.
id_875	0	Date of decision: 04 July 2023. Through: Mr Aman Agarwal, Mr Madhav Bhatia, Advocates versus Through: Mr Santosh Kumar Tripathi, Standing Counsel with Mr Arun Panwar, Mr Pradyumn Rao, Ms Mehak Rankawat, Mr Karthik Sharma, Advocates and Assistant Sub‑Inspector Kanwar Singh, Parivahan Officer, Traffic Police Mr T P Singh, Senior Central Government Counsel for R-2/Union of India., The petitioners have filed the instant writ petition stating that the drivers of auto‑rickshaws and taxis are being prosecuted and heavily challaned for not wearing uniforms when there is no clarity on the colour of uniform, specification of fabric, design and the nature of fabric to be used by the drivers. Petitioner No 1, Chaalak Shakti, which claims to be a trade union of drivers, is a society registered under the Societies Registration Act, 1860. The petitioners pray: (a) to strike down Rule 7 of the Delhi Motor Vehicles Rules; (b) to strike down permit conditions as notified by Statutory Order 415(E) dated 8 June 1989 issued under section 88(11)(ii) of the Motor Vehicles Act, 1988; (c) to quash any condition of any permit issued by Respondent No 1 in relation to uniform required to be worn by drivers of transport vehicles; and (d) to direct the respondents to pay legal costs to the petitioners., It is stated by the petitioners that Respondent No 1 has brought out the Delhi Motor Vehicles Rules, 1993 (hereinafter referred to as the Delhi Motor Vehicles Rules) and Rule 7 of those rules prescribes that the driver of a public service vehicle other than a driver of a State Transport Undertaking, while on duty, shall wear a khaki uniform with a name plate in Hindi affixed on it., The permit conditions dated 23 May 2013, specified by the Deputy Commissioner, Auto Rickshaw Unit, which is the Regional Transport Authority, prescribe that the driver shall wear a uniform in grey colour as prescribed by the State Transport Authority, Delhi, and the driver shall wear a Public Service Vehicle badge on the left side of the uniform., It is further stated that by Statutory Order No 415 E dated 08 June 1989, permit conditions were issued under section 88(11)(ii) of the Motor Vehicles Act, wherein it is prescribed that drivers of tourist vehicles shall wear a white uniform in summers and a blue or grey uniform in winters., The petitioners contend that in view of the lack of clarity on the subject, Rule 7 of the Delhi Motor Vehicles Rules, which mandates a khaki uniform with a Hindi name plate, must be struck down, and the permit conditions notified in Statutory Order No 415 E dated 08 June 1989 under section 88(11)(ii) of the Motor Vehicles Act must also be struck down. They argue that no uniform is necessary for the drivers of auto‑rickshaws and taxis and that only badges should be required to disclose their identity., It is contended that the purpose of prescribing a uniform is only for identification. Apart from the lack of clarity on the colour of the uniform—whether khaki, grey or white—there can also be confusion on the shade of grey or khaki, which may lead to drivers being unnecessarily fined by the authorities. The rules and the permit conditions are therefore vague, manifestly arbitrary, and lack a reasonable nexus between the regulation and the object of identification., The petitioners also point out a lack of clarity regarding the type of garment—whether pant‑shirt, safari suit or kurta‑pajama—the fabric to be used, details of trimmings and the requirements of accessories. They argue that forcing drivers of autos and taxis to wear a uniform is an affront to the constitutional freedoms guaranteed under Articles 14, 19 and 21 of the Constitution of India., Counsel for the Respondent/State submits that section 74 of the Motor Vehicles Act gives power to the Regional Transport Authority to grant a contract carriage permit and to lay down conditions for such permits. He draws the attention of this Court to section 88 of the Motor Vehicles Act and contends that the Regional Transport Authority, under section 88(9) read with section 88(11)(2)(i), can grant permits in respect of tourist vehicles valid for the whole of India or in such contiguous states not being less than three in number, including the state in which the permit is issued. He therefore states that Statutory Order No 415 E dated 08 June 1989, issued under section 88(11)(ii), is only for tourist vehicles and is valid. He further states that Rule 7 of the Delhi Motor Vehicles Rules, which applies to state carriage vehicles plying within Delhi, has been passed by the State Legislature in exercise of the powers conferred under section 28(2)(d) of the Motor Vehicles Act and is a valid exercise of power. Accordingly, the two instruments operate in entirely different fields., The learned counsel for the parties were heard and the material on record was perused., The relevant sections of the Motor Vehicles Act necessary for adjudicating the vires of Rule 7 of the Delhi Motor Vehicles Rules and Statutory Order No 415 E dated 08 June 1989 are as follows: (i) Short title, extent and commencement; (ii) Definitions, including ‘tourist vehicle’; (iii) Power of State Government to make rules, specifically clause (d) relating to badges and uniform to be worn by drivers of transport vehicles and the fees payable for badges; (iv) Grant of contract carriage permit under section 74, which authorises the Regional Transport Authority to attach various conditions to a permit; and (v) Validation of permits for use outside the region in which they are granted under section 88, including provisions for countersignature and for permits for tourist vehicles valid throughout India or in contiguous states., Section 28 of the Motor Vehicles Act gives the State Government power to make rules for the purpose of giving effect to Chapter II of the Act, which deals with licensing of drivers. Section 28(2)(d) specifically empowers the State Government to prescribe badges and uniform for drivers of transport vehicles operating within the State. This power cannot extend to other States. Section 88 deals with permits for transport vehicles used within and outside the State and requires countersignature for validity in another region or State. A reading of Sections 28 and 88 shows that they operate in entirely different spheres: Section 28 concerns permits for vehicles plying within the State, whereas Section 88 concerns permits for vehicles plying in more than one State. Accordingly, Rule 7 of the Delhi Motor Vehicles Rules, 1993 need not be struck down as it does not contravene any provision of the Motor Vehicles Act, 1988., In All Kerala Distributors Association, Kottayam Unit v. State of Kerala and Another, 2022 SCC OnLine SC 919, the Apex Court held that repugnancy may arise between two enactments even if obedience to each is possible, when a competent legislature with superior efficacy expressly or impliedly intends to cover the whole field. The Court observed that the 1988 Motor Vehicles Act, enacted by Parliament, deals with matters in the Concurrent List and provides procedures for stage‑carriage permits, duration, renewal and countersignature, but does not cover the manner of levy of vehicle tax, which is left to State legislation. Hence, there is no direct conflict between the central and State provisions., The petitioners’ second submission that the power to prescribe a uniform for drivers of auto‑rickshaws and taxis is per se arbitrary and violative of Articles 14, 19 and 21 cannot be accepted. Specific powers have been given to the State Government and the Central Government to lay down conditions subject to which permits can be issued., The purpose of prescribing a uniform is identification. The existence of different shades of the same colour does not render the rule vague or arbitrary. The colour and description of the uniform for drivers of vehicles running within the State are prescribed under Rule 7 of the Delhi Motor Vehicles Rules, and the colour and uniform specified in Statutory Order No 415 E dated 08 June 1989 are specific. There is no ambiguity., The validity of primary or subordinate legislation is primarily challenged on grounds of legislative competence, ultra vires to the Constitution, or unreasonableness under Article 14. The petitioners have not demonstrated that Rule 7 of the Delhi Motor Vehicles Rules is manifestly arbitrary. Merely stating that several shades of khaki may exist or that the garment type is not specified does not make the provision vague. Rule 7 merely requires a khaki uniform with a name plate, and Statutory Order No 415 E prescribes the colour of uniform for tourist vehicles in summer and winter. Neither is arbitrary nor violative of Articles 14, 19 and 21., The test of manifest arbitrariness, as explained by the Apex Court in Shayara Bano v. Union of India & Ors., 2017 (9) SCC 1, requires that subordinate legislation be so unreasonable that it could not be reasonably expected to emanate from the authority delegated with law‑making power. The Court has held that manifest arbitrariness applies to both plenary and delegated legislation and that a law must be capricious, irrational or without an adequate determining principle to be struck down., Applying this test, the challenge to Rule 7 of the Delhi Motor Vehicles Rules and Statutory Order No 415 E dated 08 June 1989 does not meet the criteria of manifest arbitrariness. The Central Government has power to make rules under section 88 of the Motor Vehicles Act for tourist vehicles, and the State Government has power to make rules under section 28 for uniform of drivers of transport vehicles in Delhi. The petitioners’ contention that there is no requirement of a uniform and that the prescription is vague or arbitrary cannot be accepted., This Court therefore finds no reason to strike down Rule 7 of the Delhi Motor Vehicles Rules or Statutory Order No 415 E dated 08 June 1989. The petition is dismissed, along with pending applications.
id_878	0	Insurance for lawyers has been an aspiration for several years. Though more than two decades have passed since the enactment of the Advocates Welfare Fund Act, 2001, group life insurance and Mediclaim/health insurance for lawyers has merely remained in the statute books. It is under these circumstances that the Chief Minister's Advocates Welfare Scheme (hereinafter, Scheme) for advocates enrolled with the Bar Council of Delhi (hereinafter, Bar Council of Delhi) was approved and launched in 2019 in recognition of the contribution of lawyers and advocates., The stated object of the Scheme is set out in the background note put up before the Cabinet of the Government of National Capital Territory of Delhi, as follows: Lawyers have played a central role since time immemorial in not only drafting the Constitution but in protecting the citizenry's basic rights and upholding the basic concepts of secularism, democracy and egalitarianism and ushering in persistent reforms since Independence. Advocates have been the tallest leaders of our democracy since independence and their work for society at large is ample proof of the hard work and toil of each member of the legal fraternity to lead and reform the nation. The profession and the growth of the legal fraternity in our society promote an environment which is just and strong to stand up against the wrong and nurture an environment conducive for constructive dialogue among citizens, builds a strong democracy encouraging active citizen engagement and participation in nation building and fosters a society which is equitable and conscientious., The Government of National Capital Territory of Delhi, in recognition of the role being played by advocates in society and the legal profession in particular, announced the Chief Minister Advocates Welfare Scheme. An outlay of Rupees 50 crore, an annual fund, has been made under the Scheme for utilization for the welfare of the legal community in the Budget of 2019‑20. Thus, the Scheme was launched by the Government of National Capital Territory of Delhi to recognise the role of advocates, both in society and in the legal profession., Two issues have been raised in these petitions concerning the Scheme: first, a condition that the benefit will only be available to advocates whose names appear in the voters list of Delhi, thereby excluding a large number of advocates enrolled with the Bar Council of Delhi and practising in various District Courts, the Delhi High Court, the Supreme Court of India and other fora who reside outside Delhi, predominantly in the National Capital Region such as Noida, Gurugram, Faridabad, Ghaziabad etc.; second, lawyers who were unable to register for the Scheme within the original deadline are seeking an extension of the deadline for registration., Three of the six petitions—Writ Petition (Civil) 3298/2020, Writ Petition (Civil) 3357/2020 and Writ Petition (Civil) 1840/2021—have been filed by individual advocates who are members of the Bar Council of Delhi but reside outside Delhi, including Noida, Gurugram, Faridabad, Ghaziabad and Ferozepur. In Writ Petition (Civil) 1840/2021 there are fourteen petitioners, all advocates. Petitioners No. 1 to 7 have successfully applied for the Scheme but have not been provided with the insurance policies. Petitioners No. 8 to 11 are members of the Bar Council of Delhi who do not have a Delhi voter ID card and seek extension of the Scheme to them. Petitioners No. 12 to 14 are advocates who registered with the Bar Council of Delhi after the deadline for registering for the Scheme and seek reopening of the registration., The Bar Council of Delhi has filed the remaining three petitions—Writ Petition (Civil) 3362/2020, Writ Petition (Civil) 4303/2020 and Writ Petition (Civil) 4304/2020—broadly seeking the following reliefs: issuance of insurance policies to advocates who are already registered for the Scheme, extension of the Scheme to advocates who are enrolled with the Bar Council of Delhi but residing in the National Capital Region or neighboring areas, and reopening of the registration under the Scheme., The reliefs sought in all these petitions can be summarised as: (i) issuance of insurance policies to all eligible advocates already registered under the Scheme; (ii) quashing of the condition requiring advocates to have a Delhi voter ID card for obtaining the insurance policies under the Scheme, thereby extending the Scheme to lawyers residing outside Delhi in the National Capital Region or neighboring areas, provided they are registered with the Bar Council of Delhi; (iii) reopening of the registration portal to enable advocates who have been unable to register to submit their registrations., The Government of National Capital Territory of Delhi decided to recognise the role of advocates in society and the legal profession and accordingly constituted a Committee on 29 November 2019 to propose schemes for the welfare of advocates. An annual outlay of Rupees 50 crore was created for the year 2019‑20 for this purpose. The Committee comprised twelve members including the President of the Supreme Court Bar Association, the Delhi High Court Bar Association, representatives of the Bar Associations of Patiala House Court, Saket Court, Rohini Court, Dwarka Court, Tis Hazari Court and Shahdara Courts, the then Chairperson of the Bar Council of Delhi, two Standing Counsels for the Government of National Capital Territory of Delhi in the Delhi High Court and two advocates chosen by the Government of National Capital Territory of Delhi., The order appointing the Committee reads: Government of National Capital Territory of Delhi, in recognition of the role being played by advocates in society and the legal profession, announced the Chief Minister's Advocates Welfare Scheme. An outlay of Rupees 50 crore, an annual fund, has been made under the Scheme for utilisation for the welfare of the legal community in the Budget of 2019‑20. It is considered desirable to constitute a committee consisting of advocates which may propose schemes for welfare of advocates so that the budget outlay sanctioned by the Government of National Capital Territory of Delhi is utilised properly for the welfare of all advocates. The Committee may submit its recommendations towards drafting the scheme for the welfare of advocates within ten days of its formation., Prior to giving its recommendations, the Committee considered data relating to the number of advocates registered with the Bar Council of Delhi and also held negotiations with the Life Insurance Corporation of India and other general insurance companies for providing health and life insurance. A total of 40,115 advocates were considered by the Committee to be beneficiaries, which included advocates from the National Capital Region or neighboring areas. Life Insurance Corporation of India agreed to a premium of Rupees 2.478 per advocate per thousand rupees sum assured, inclusive of GST, for advocates up to the age of 60 years and Rupees 2.80 per advocate per thousand rupees sum assured for advocates in the age group of 61 to 75 years. The total premium amount payable to the Life Insurance Corporation of India for 40,115 advocates was approximately Rupees 10 crore., In respect of group mediclaim coverage, after considering quotations from New India Assurance Company Limited and National Insurance Company Limited, and the inability expressed by United India Insurance Company, the Committee recommended accepting the proposal given by New India Assurance Company Limited. New India Assurance offered a family floater policy of Rupees 5,00,000 and other benefits at a premium of Rupees 8,500 plus GST per advocate plus their spouse and two dependent children, or at Rupees 8,000 plus GST per advocate plus their spouse and two dependent children, without maternity cover. The first offer of a premium at the rate of Rupees 8,500 plus GST was accepted by the Committee., In addition, the facility of an e‑library was recommended, whereby each District Court complex would be provided ten computers with all e‑journals along with heavy‑duty printers. A provision for a creche facility was also discussed for six District Courts, which the Life Insurance Corporation of India has agreed to provide as part of its corporate social responsibility. The verified list of eligible beneficiaries in the various bar associations was also considered., The Committee resolved that all practising advocates in Delhi who are on the verified rolls of the Bar Council of Delhi, i.e., 40,115 advocates who are on the electoral rolls of any of the Bar Associations in Delhi—including the Supreme Court Bar Association, the Delhi High Court Bar Association, the Bar Association of the Rohini Court, the Tis Hazari Court, the Dwarka Court, the Karkardooma Court, the Saket Court, Patiala House, National Green Tribunal, NCLT, NCLAT, Income Tax Tribunals, Service Tax Tribunal, Armed Forces Tribunal, Debt Recovery Tribunal, Central Administrative Tribunal, National Consumer Commission, State Consumer Forum—as on 1 December 2019, upon endorsement by the Bar Council of Delhi and cross‑endorsement by the respective Bar Association where they have voting rights, be treated as beneficiaries under this Scheme., The Scheme proposed by the Committee includes: (1) Group term insurance for practising advocates providing life cover of Rupees 10,00,000 per advocate; (2) Group mediclaim coverage for the advocates, their spouse and two dependent children up to the age of 25 years, for a family floater sum insured of Rupees 5,00,000; (3) E‑library with ten computers loaded with e‑journals and web editions of e‑journals, along with printers in all six district courts; (4) Creche facility for advocates and staff employees in each of the six district courts., The declaration form sought the following details from advocates: Bar Association in which advocate has voting rights; Name and date of birth of the second child. Verification by the Bar Council of Delhi certifies that the advocate is in the list of verified advocates of the Bar Council of Delhi. Verification by the Bar Association certifies that the advocate is a voter in the Bar Association as on 1 December 2019. Enclosed documents include attested copies of AADHAAR card, Bar Association ID card, Bar Council of Delhi ID card and voter ID card. A joint reading of the Committee's report and the declaration form shows that all advocates enrolled with the Bar Council of Delhi were to be beneficiaries of the Scheme and the voter ID card was of a Bar Association, in order to ensure that the concerned advocate was a member of one of the Bar Associations in Delhi., The report of the Committee was considered by the Minister (Law), Government of National Capital Territory of Delhi. A note was put up by the Minister (Law) before the Council of Ministers. The background set out in this note, which forms the basis of the Scheme, records that lawyers have played a central role since time immemorial in drafting the Constitution, protecting citizenry's basic rights and upholding secularism, democracy and egalitarianism, and that the Government of National Capital Territory of Delhi announced the Chief Minister's Advocates Welfare Scheme with an outlay of Rupees 50 crore, an annual fund, for utilization for the welfare of the legal community in the Budget of 2019‑20., The note records the Committee's recommendations for group term insurance, group mediclaim coverage, e‑library and creche facilities. In the recommendations for group term insurance and group mediclaim coverage, reference is made to practising advocates registered in Delhi. The Minister (Law) sought approval in the following terms: After deliberations the Committee submitted a report on 12 December 2019 proposing the schemes listed above. The schemes were approved by the Council of Ministers on 18 December 2019, directing the Principal Secretary (Law) to immediately initiate the process of floating a tender whenever necessary and to simultaneously initiate the process of inviting online applications for beneficiaries after development of the software., Pursuant to this decision, a Notice Inviting Tender was called for a total of 40,115 lawyers; however, for various reasons the exercise did not fructify. The Covid‑19 pandemic broke out in March 2020 and the process of obtaining insurance was disrupted, leading to the filing of the present writ petitions., Various issues were canvassed from time to time in these writ petitions. The Government of National Capital Territory of Delhi initially stated that it was not taking an adversarial stand and that the issues raised by the Bar Council of Delhi and the advocates would be resolved. As recorded in an order dated 18 June 2020, a submission was made on behalf of the Government of National Capital Territory of Delhi that a total of 29,098 advocates who are registered with the Bar Council of Delhi and have Delhi voter ID cards were verified. Considering the large number of advocates who would benefit during the pandemic, while keeping the issue relating to advocates from the National Capital Region or neighboring areas pending, this Supreme Court of India directed the Notice Inviting Tender to be issued for finalising the insurance policies., Thereafter, the Supreme Court of India monitored the issuance of the insurance policies. After the issuance of the Notice Inviting Tender and receipt of bids, it was seen that both Life Insurance Corporation of India and New India Assurance Company Limited had nearly doubled the premium they had initially proposed, owing to the pandemic. Finally, the premium which was finalised with both companies is recorded in an order dated 7 October 2020., With the assistance of officials of the Government of National Capital Territory of Delhi, including the Committee constituted for this purpose, senior counsels and representatives of the Bar, including the present and erstwhile Chairman of the Bar Council of Delhi, the companies arrived at the final figures for issuance of the policies. The terms and conditions of the group term life‑insurance policies are provided in Life Insurance Corporation of India’s email dated 14 September 2020, which reads: This refers to the second valuation committee held on 9 September under the chairmanship of Shri Azimul Haque, IAS, Chairman of the Technical Evaluation Committee for the matter. The draft minutes have been received and placed before the Chairman of the Corporation for looking into the matter of granting exclusive and special reduction, as requested by the Government of National Capital Territory of Delhi, so as to enable them to proceed with covering 28,744 advocate members of the Delhi Bar Council as mentioned under the bid document floated for the purpose. The Chairman of the Corporation, exercising his discretionary powers, has, as a very special case, accepted the request as preferred by the Government of National Capital Territory of Delhi through the Chairman of its Evaluation Committee, and thus the revised annual premium for the group of 28,774 advocate members of the Delhi Bar Council shall now be Rupees 10,07,70,894, provided the age distribution of proposed members to be covered meets the specified age distribution. This exclusive and special consideration shall only be applicable in respect of the bid document proposing to cover 28,774 Bar Council members, Delhi, and shall not include any other group/additional members under the same group. The special rate, approved without profit sharing, shall be valid for a period of one year from the date of commencement of policy and shall be reviewed at the next annual renewal date. This special consideration shall not form any precedence for the said Group (Delhi Bar Council) for any additional members/future renewals and/or for any other Bar Council in India, if they so desire to insure their advocate members. All future/further reference shall be reviewed afresh, independently. Hemant Buch, Chief/PGS (Marketing/Govt Business & Compliance), Life Insurance Corporation of India, Central Office, Mumbai., Insofar as the group term life‑insurance policies are concerned, the Life Insurance Corporation of India's final quotation with respect to 28,774 lawyers is Rupees 10,07,70,894 as set out in the above email. In respect of the group mediclaim insurance policies, Mr. Jitendra Mehndiratta, Deputy General Manager at New India Assurance, made a detailed presentation and, instead of Rupees 12,000 as earlier quoted, agreed to a final rate of Rupees 10,500 per family premium payable for a total of 29,077 lawyers. However, the co‑payment term would now be 25 percent instead of 20 percent. The remaining terms contained in the letter dated 14 September 2020 and reiterated on 4 October 2020 shall remain intact. Mr. Mehndiratta agreed to all these terms, subject to all the policies being purchased on or before 30 November 2020. The above rates have also been agreed to be extended to 40,115 lawyers by New India Assurance, if this Supreme Court of India decides that the said lawyers are also entitled to the Scheme of the Delhi Government. Thus, the annual insurance premium payable per advocate that was finalised is as follows: Life Insurance – Rupees 3,502 per advocate for a sum insured of Rupees 10,00,000; Mediclaim Insurance (New India Assurance) – Rupees 10,500 per family for a sum insured of Rupees 5,00,000., By the time of conclusion of the hearings, a total of 28,744 lawyers had been issued life insurance policies by the Life Insurance Corporation of India and 29,077 lawyers had been issued mediclaim policies by New India Assurance. According to the Government of National Capital Territory of Delhi, 5,044 lawyers are not entitled to the insurance policies as they do not have a Delhi voter ID card; therefore, the premium in respect of these advocates ought to be refunded to the Government of National Capital Territory of Delhi. Furthermore, 557 lawyers registered with the Bar Council of Delhi and having Delhi voter ID cards are entitled to the policies but, due to late verification, have not yet been issued the policies. The total amount paid by the Government of National Capital Territory of Delhi to the Life Insurance Corporation of India and New India Assurance is approximately Rupees 40 crore. The policies issued by both companies are for a period of one year., During the course of the hearings, the Supreme Court of India was informed that several advocates who had been issued the insurance policies have, in fact, availed of the same and benefited during the pandemic., Submissions of Mr. G.S. Chaturvedi, petitioner in person, were made in Writ Petition (Civil) 3298/2020.
id_878	1	The challenge in this writ petition is to the criteria prescribed by the Delhi Government for extending the benefit of the Scheme only to Advocates, who are registered voters in Delhi and possess voter ID cards in Delhi. Mister Chaturvedi submits that the eligibility criteria of insisting on a voter ID card is completely violative and discriminatory, as such the purpose of the Scheme is to give recognition and benefit to advocates who are practising in Delhi. The purpose of the Scheme is not merely to give benefit to advocates living and residing in Delhi. He submits that the advocates from the National Capital Region/neighbouring areas, who are practising in Delhi, also contribute to the dispensation of justice in Delhi and they appear in various courts, including the District Courts and the Delhi High Court. He also highlights the unique character of the National Capital Region, which is a recognised area wherein a large number of advocates who are practising in Delhi live and reside and commute to Delhi on a daily basis., Mister Chaturvedi submits that the Bar Council of Delhi as per its enrolment form merely mentions as a pre‑condition for enrolment that advocates should practise within the State of Delhi. The enrolment form is highlighted to show that being a resident of Delhi is not an eligibility criterion to be registered with the Bar Council of Delhi. It is also emphasised that undertakings given by the advocates registered with the Bar Council of Delhi include the following: intent to practise ordinarily and regularly within the jurisdiction of the Bar Council of Delhi. As per the undertakings, advocates are permitted to live within the National Capital Region and if there is any change in their residence, they have to inform the Bar Council of Delhi of the same. He thus submits that the Bar Council of Delhi does not extend its jurisdiction only to advocates who are residents of Delhi but also to advocates who hail from the National Capital Region., It is further urged by the petitioner that such a discriminatory position cannot be adopted when a Welfare Scheme like the present one is being extended to advocates who face the same occupational hazards, irrespective of whether they are residents of Delhi or not., He further submits that advocates from the National Capital Region/neighbouring areas who choose to enrol with the Bar Council of Delhi are not permitted to register with their respective State Bar Councils, for example the Bar Council of Uttar Pradesh or the Bar Council of Punjab & Haryana. Thus, they become ineligible for welfare schemes for advocates that are floated by those Bar Councils for their own advocates. If the said advocates are not extended benefit of the present Scheme as well, they would be adversely affected as they would not be entitled for welfare schemes either in their respective States, nor from Delhi. This would be extremely disadvantageous for advocates from the National Capital Region/neighbouring areas., He submits that the Bar Councils in other states also have various rules, which limit the extent of practice which the advocates from the National Capital Region/neighbouring areas registered with the Bar Council of Delhi can engage in. Reliance is placed upon the judgment of the Supreme Court of India in Jamshed Ansari v. High Court of Judicature at Allahabad & Ors., AIR 2018 SC 3997 to argue that, in effect, there is a bar on lawyers enrolled with one State Bar Council to appear in another High Court without a local lawyer. Thus, interest of advocates from the National Capital Region/neighbouring areas should not be jeopardised by excluding them from benefit of the welfare Scheme launched by the Delhi Government., Thereafter, the petitioner relies upon the decision in Social Jurist, A Civil Rights Group v. Government of NCT of Delhi & Anr. (2018) 253 DLT 466 (Delhi Bar), wherein a similar eligibility criterion of voter ID card for grant of medical care was struck down by the Supreme Court of India. He submits that the restriction that medical treatment would only be extended to persons who have voter ID cards in Delhi having been struck down in Social Jurist (supra), the same criterion cannot be adopted even for extension of Mediclaim or Life Insurance policies, which are akin to grant of medical treatment., It is further argued that the present case is not only a case of discrimination, it also relates to the right to life as the insurance is a form of social security and the same is protected under Article 21 of the Constitution of India. Reliance is placed upon LIC of India & Ors. v. CERC & Ors., AIR 1995 SC 1811, Kirloskar Brothers Ltd. v. ESIC, AIR 1996 SC 3261 and United India Insurance Company Ltd. v. Jay Prakash Tayal, 247 (2018) DLT 379. He seeks to distinguish the judgment in D. P. Joshi v. State of M.B., AIR 1955 SC 334 by arguing that the domicile in that case related to capitation fee and not any health related issue. Moreover, domicile is an issue which is decided on the basis of birth, education and property but not on the basis of voter ID., It is further submitted that since the crèche facility and the library facility, which are also part of the Scheme, cannot now be set up owing to the current situation, the budgetary allocation could also be made flexible. Since these facilities, if established, cannot be discriminatory qua lawyers from the National Capital Region/neighbouring areas, even the insurance facility should not be discriminatory., In conclusion, the petitioner submits that the said criteria and the cabinet decision dated 18th December 2019 and the consequent notification dated 17th March 2020 deserve to be struck down and the Welfare Scheme ought to be extended to include advocates from the National Capital Region/neighbouring areas who are registered with the Bar Council of Delhi as well. So long as they are registered with the Bar Council of Delhi, advocates who may be from the National Capital Region/neighbouring areas should be entitled to the benefit of the Scheme. He further submits that all those advocates whose verification has been conducted by the Bar Council of Delhi, being residents of the National Capital Region/neighbouring areas, should be entitled to the Scheme this year., Mister Chaturvedi lastly submits that if the budget is not available with the Government of National Capital Territory of Delhi, some part of the premium can be contributed by the advocate concerned who is a beneficiary, so as to ensure that the Scheme can be made workable and the budgets are not overstretched., Submissions of Mister A. S. Chandhok, Senior Advocate for the petitioners in Writ Petition (Civil) 3357/2020: In the case of the Bar Council of Delhi, or any other State Bar Council, primacy is given to the place of practice and not to the place of residence. Reliance is placed on the Certificate and Place of Practice (Verification) Rules, 2015, wherein repeated emphasis has been placed on the place of practice and jurisdiction under which the advocate intends to practise., The senior counsel submits that the verification which is conducted by the Bar Council of Delhi also relates to the place of practice. The roll of advocates mentions the place and address and not just the name of advocates. Clause 6.1 of the Rules, which provides for where an advocate is to get himself/herself registered, uses the expression where he ordinarily practices law or intends to practice law. On the strength of Clause 6.2, it is submitted that even when one advocate leaves one Bar Association and moves to another State, he has to inform the said change to the State Bar Council where he is enjoying membership. Chapter 4, Rule 8 of the Rules is also relied upon to argue that the Certificate to practice and place of Practice which is received is also to be verified by the Bar Council of Delhi, prior to enrolling an advocate., The submission is also that there is no importance or relevance of whether the advocate is a voter or not. What is important is the appropriate court or the place where the advocate would practise as much as an undertaking is also given by the advocate that if he shifts his place of practice, his enrolment would also have to be transferred., Reference is also made to the definition of Voter, Electoral Roll and other provisions of the Bar Council of Delhi Rules, 1963 to emphasize that even the Bar Council of Delhi Rules do not give any importance to the place of residence of the advocate. The electoral roll relates to the electoral roll maintained by the Bar Council of Delhi in which every member is permitted to vote. Specific reliance is placed upon Rules 115, 120 and 125., Mister Chandhok, Senior Counsel, refers to the declaration to be given by an advocate who seeks registration. The undertaking requires the advocate to mention that he intends to practise as an advocate within the jurisdiction of the Bar Council of Delhi, which includes the National Capital Region. Reference is also made to the budget speech given at the time when the Scheme was announced to argue that the same was meant to be a welfare measure for advocates practising in Delhi, which is also clear from page 45 of the document compilation. Neither the budget speech nor the Scheme mentions residence as being important in any manner whatsoever., As per the Master Plan, the various zones which are carved out which mention the National Capital Region and National Capital Territory region also show that the Master Plan itself contemplates that the persons who are resident in the National Capital Region are part of the broader Delhi region. Hence, it is submitted that there cannot be a differentiation by the Delhi Government on the basis of voters and non‑voters., Reference is made to the Rules of the Rajasthan High Court, the Allahabad High Court Rules and the Punjab & Haryana High Court Rules to show that those members who are enrolled with the Bar Council of Delhi would not be permitted to practise in these High Courts like locals, even if their residence is in States which are in geographical proximity to Delhi. Once a lawyer is enrolled with the Bar Council of Delhi, he or she would be required to engage a local lawyer to appear in these Courts, which itself proves the fact that the benefit would have to be extended to all advocates enrolled with the Bar Council of Delhi. It is also submitted that if the other State Bar Councils come out with any welfare scheme, it would apply only to the advocates registered on their roll and not advocates who are residing in the said States. Place of residence having no relevance under the entire scheme of the Certificate and Place of Practice (Verification) Rules, 2015 or the Bar Council of Delhi Rules, the said distinction which is now sought to be made is not an enable distinction., Finally, Mister Chandhok, Senior Counsel concludes by submitting that the measure which has been taken by the Delhi Government is a welfare measure for providing security, medical facilities, etc., to lawyers and the same cannot be converted into an election campaign. He submits that the lawyers who are practising in Delhi have made a great contribution in the dispensation of justice in the Delhi Courts., Page 8 of the counter affidavit is relied upon to argue that during the implementation of the Scheme, an e‑mail dated 16th March 2020 was sent to all the lawyers who are enrolled with the Bar Council of Delhi, which included the advocates from the National Capital Region/neighbouring areas. Thus, the Scheme was never meant only for lawyers who are residents of Delhi but to all lawyers who are enrolled with the Bar Council of Delhi whose verification would be done., Mister Chandhok, Senior Counsel also clarifies that this is not a case where the writ of mandamus is sought. This is a case where quashing of the requirement of the voter ID of Delhi is being sought, which is a condition in this Scheme. Thus, it is in the nature of a writ of certiorari., Submission of Mister Rajiv Khosla, Advocate for the petitioners: Mister Rajiv Khosla, Senior Counsel appearing in support of the petitioners submits that it was publicly declared by the Chief Minister of the Government of National Capital Territory of Delhi that the outlay of Rs. 50 crores is not the maximum amount and in fact, public functions have been addressed where it was made clear that even if the amount is increased, advocates should be provided the Mediclaim and the life insurance. Similar submissions were also made by Mister Rakesh Khanna, Senior Counsel and Mister K. C. Mittal, Senior Counsel, as also the ex‑chairperson of the Bar Council of Delhi., The senior counsel submits that during the Covid‑19 pandemic the discrimination is to such a great effect that if there is a death of any advocate and the said advocate is a resident of Delhi, he or she is entitled to Rs. 10,00,000 under the Scheme, whereas if that advocate is not a resident of Delhi, he/she is not being benefitted under the Scheme. He submits that such discrimination ought not to be permitted by the Supreme Court of India., Submissions of Mister Ramesh Gupta, Senior Advocate for the Bar Council of Delhi: Mister Ramesh Gupta, Senior Advocate, who is also the current Chairman of the Bar Council of Delhi, submits that the lawyers practising in Delhi, who could not register and had to go back to their hometown, ought to be given liberty to register for availing the benefit of the Scheme. He further submits that advocates from the National Capital Region/neighbouring areas, who are primarily practising and appearing in Delhi District Courts and Delhi High Court ought to be permitted to avail the benefit under the said Scheme., Submission of Mister Rakesh Khanna, Senior Advocate for the Bar Council of Delhi: It is submitted that the present petitions raise two issues, first is in respect of the opening of a window of opportunity for those advocates who could not register themselves for availing the benefit of the Chief Minister’s Advocates Welfare Scheme and secondly, as to whether the benefits of the Scheme ought to be extended to advocates who are residents of the National Capital Region/neighbouring areas., Insofar as the first issue is concerned, it is urged that the insurance companies have already agreed to make available insurance policies on the basis of pro‑rata arrangement i.e., for the remainder of the period for which insurance has been availed of for the entire set of lawyers to whom policies have already been issued. Accordingly, it is submitted that even if a window of opportunity is opened as on date, the insurance premium that would be payable would be on a pro‑rata basis for the remainder of the period and hence, no prejudice would be caused., Insofar as the second issue is concerned, in respect of the advocates who are residing in the National Capital Region/neighbouring areas, reference is made to the provisions of the Advocates Act, 1961, including the definitions., On the basis of Sections 16 and 18 it is argued that the important fact is the place where the advocate is practising and not the place of residence of the advocate. Under Section 24, the various qualifications which are needed for an advocate to be admitted on a State roll are specified and residence is not one of the criteria. It is thus urged that the concept of residence is completely alien to the Advocates Act, 1961 and to the roll maintained by the Bar Council., Reliance is thereafter placed on the rules of the Bar Council of Delhi, specifically Rule 102, Rule 120 and Rule 140, as also the declaration form and the undertaking which is given by every advocate. It is emphasized that the undertaking is to the effect that every advocate would undertake to practise ordinarily within Delhi and is not required to give an undertaking that he would reside in Delhi., The following judgments are also cited to support the proposition that advocates are governed by the Advocates Act, 1961 and even when pensionary benefits etc. are to be computed in respect of those persons who are either part of the district judiciary or the higher judiciary, the computing of experience is on the basis of the years of practice by being attached to a particular Bar Council and not the place of residence: 1. S. P. Gupta v. President of India & Ors., AIR 1982 SC 149; 2. All India Young Lawyers Association v. GNCTD & Ors., (2006) 128; 3. State (NCT of Delhi) v. All India Young Lawyers Association; 4. P. Ramakrishnan Raju v. Union of India & Ors., (2014) 12 SCC 1; 5. Shanker Raju v. Union of India & Anr., 2019 SCC Online Delhi. On the basis of all these judgments, it is argued by Mister Khanna that advocates are to be considered as one class of persons and there cannot be any demarcation or delineation based upon the residence of the advocate., Insofar as the Scheme is concerned, the Committee’s report is relied upon to argue that the report recommended that the advocate has to be registered with the Bar Council of Delhi. Insofar as the voters list is concerned, the same related to the Bar Association which is located within one of the Court complexes in Delhi. It is not specified that the voter ID has to be showing residence of Delhi. It is, thereafter, argued that there are various schemes floated by the Government of National Capital Territory of Delhi, like the Delhi Government Employees Health Scheme wherein medical facilities are made available to employees working with the Delhi Government. In the FAQ questions 1 and 16, it is made clear that the beneficiaries are those who work with the Delhi Government. Even those beneficiaries who have settled outside Delhi, in the National Capital Region are entitled to the benefits of the scheme. Thus, the National Capital Region has always been contemplated to be within Delhi and in any event, even for such health schemes, the fact that the employee resides outside Delhi does not disen‑title the employee of benefits under the Scheme., Thereafter, other Schemes meant for migrant workers, mid‑day‑meal schemes etc. are relied upon to argue that migrant workers belonging to different States are also entitled to benefits under the scheme. Students may be residing in Gurgaon or Noida but so long as they study in schools in Delhi, they are also entitled to the benefit of the schemes. Similarly, in order to avail of the reservation which is available for 85 % Delhiites, students who study in Delhi in class 11 and 12 are entitled to the benefit of the scheme, irrespective of whether the said students reside within Delhi or not., A distinction is sought to be made insofar as advocates who may be practising in Delhi but not enrolled with the Bar Council of Delhi are concerned. It is submitted that even those advocates who may be residing in Delhi, practising in Delhi but not enrolled may not be entitled to the benefit of the scheme and therefore, what is relevant is the enrolment with the Bar Council of Delhi and not residence in Delhi., It is further urged that under the Rules of the Bar Council of Delhi, so long as the advocates are subject to the code of conduct prescribed by the Bar Council of Delhi, advocates would be entitled to the benefit of the Scheme. Those advocates who are practising in Delhi also render services to the citizens of Delhi, they contribute to the revenue of the Delhi Government by paying court fee and stamp duty etc. Thus, the said advocates hailing from Delhi National Capital Region/neighbouring areas cannot be discriminated against., Finally, it is argued that the distinction sought to be made between advocates who are residents of Delhi and those from the National Capital Region/neighbouring areas is not based upon an intelligible differentia. There is no nexus with the object which is sought to be achieved, the object being to help advocates by providing social security. Enormous discrimination would be caused if advocates who cannot afford residences in Delhi and who belong to a lower financial strata or having financial disabilities are deprived of the benefit of the scheme. A scheme being a social welfare scheme should be meant for those advocates who have financial disabilities rather than simply to those who can afford to buy residences in Delhi. Though the issue is one of policy, since the Right to Health is recognised under Article 21 of the Constitution of India, to which even a foreigner is entitled, advocates from the National Capital Region/neighbouring areas ought not to be deprived of the same., Submissions of Mister Rahul Mehra, Standing Counsel (Criminal), Government of National Capital Territory of Delhi: Mister Rahul Mehra, Senior Advocate along with Mister Satyakam, Senior Advocate, have made submissions on behalf of the Government of National Capital Territory of Delhi. The following broad propositions have been canvassed before the Supreme Court of India: (i) There is no statutory duty which exists upon the Government of National Capital Territory of Delhi and hence, a writ of mandamus cannot be issued. Thus, the writ itself is not maintainable. (ii) The question as to which category of lawyers are eligible for benefits under the Scheme is an issue of policy in which the intervention of the Court would be very limited. The manner in which the Rs. 50 crores is to be utilised would also be a question of policy. The two requirements of enrolment with the Bar Council of Delhi and possessing a voter ID of Delhi is a decision which the Government has taken in order to ensure that the benefits which are being extended do not exceed the amount of the outlay. Both these issues are questions of policy which cannot be interfered with by the Court. (iii) In so far as the domicile issue is concerned, the question of domicile is again a decision which the Government has taken in order to give benefits to local citizens., The submission of Mister Mehra, Senior Counsel, in respect of the first proposition is that there has been no failure to perform a statutory duty by the Government of National Capital Territory of Delhi. The petitioners do not have any legal rights which they can enforce by filing a writ of mandamus. The Scheme, being a welfare scheme akin to schemes which are launched to benefit a section of the public, the same cannot be enforced like a statutory right., The submission is that the Bar Council of Delhi has an obligation to take care of all lawyers and this obligation cannot be transferred upon the Government of National Capital Territory of Delhi in the manner in which it is sought to be done. Reliance is placed on the following three judgments: (i) Oriental Bank of Commerce v. Sunder Lal Jain, (2008) 2; (ii) Union of India v. C. Krishna Reddy, (2003) 12 SCC 627; (iii) Umakant Saran v. State of Bihar, (1973) 1 SCC 485., The next submission on behalf of the Government of National Capital Territory of Delhi is that the present Scheme is completely independent of the duties and obligations of the Bar Council of Delhi under the Advocates Welfare Fund Act, 2001. Reliance is placed on the provisions of this Act to highlight the fact that under Section 24 of this Act, the primary purpose of creation of this fund was to enable availing of life insurance policies and medical insurance policies for members of the fund. However, though this Act was enacted way back in 2001, for almost two decades, no insurance policy has been availed of for lawyers., The Supreme Court of India then queried the Chairperson of the Bar Council of Delhi, as also Mister Sangwan, Senior Counsel, as to whether any life insurance or other policy has been availed of for advocates. However, their response is that due to the lack of adequate funds no policy could be availed of since the enactment of this particular statute., It is submitted that it is only for enforcement of a statutory duty that a writ is maintainable. Unless a statute imposes this legal duty and the writ petitioner shows a legal right, a writ of mandamus cannot be issued., In respect of the argument that the Chief Minister’s Advocates Welfare Scheme is a policy matter, reference is made to the Cabinet decision dated 18th December 2019 which was made public on 19th December 2019. As per the said decision, the proposal that was approved by the Cabinet was contained in paragraphs 6, 7 and 8 of the Cabinet note., While referring to the note which was placed before the Cabinet, the purpose of the Scheme i.e., to benefit lawyers who play a central role in various facets of life, is set out. It is highlighted that the purpose, as is evident from the Cabinet Decision as well as the background note, is to recognise the role of lawyers in the strengthening of democracy and to ensure that the amounts are properly utilised for the welfare of lawyers. However, it is submitted that the term “practising advocate” in Scheme 1 and Scheme 2 has to be read along with paragraphs 6, 7 and 8, where it is specifically mentioned that the scheme would apply to practising advocates who are enrolled with the Bar Council of Delhi and are on the voters list of Delhi. Thus, the word “practising advocate” cannot be read in isolation and the entire scheme has to be read as a whole. The policy decision taken by the Cabinet was to approve paragraphs 6, 7 and 8 of the note placed before it. Paragraph 7 of the note clearly stipulates both these conditions as pre‑conditions for being eligible to avail of the scheme. Thus, it is submitted that reliance on the word “practising advocate”, which is being pressed into service in isolation, would not be a tenable submission., Moreover, it is submitted that a policy decision consists of two separate steps. Firstly, the approval of a sum of Rs. 50 crores as the maximum amount to be spent on the Scheme. Within the said amount, the Government had the discretion to expand it in whatever manner it sought appropriate for the welfare of advocates. After receiving approvals from the insurance companies as to the insurance premium that they would be charging, the following four items were agreed to be introduced for the welfare of advocates: i) Group (Term) Insurance; ii) Group Mediclaim Coverage; iii) E‑library; and iv) Creche Facility., The said four schemes are not the end in itself, however, the final amount is Rs. 50 crores within which these four schemes were fitted in order to benefit lawyers. Thus, it is submitted that the twin policy decisions are; one, Rs. 50 crores being assigned as the maximum amount and secondly, the four schemes which have been mentioned in the decision itself.
id_878	2	It is further submitted that the Government of National Capital Territory of Delhi consulted all the stakeholders in the matter and thereafter a Committee was constituted, consisting of Presidents of various Bar Associations, the Chairman of the Bar Council of Delhi and two other advocates, who would represent the interest of lawyers. A twelve‑member Committee was constituted under the convenorship of Mr. Rakesh Khanna, Senior Advocate, who at that time was the President of the Supreme Court Bar Association. This Committee, after considering the entire matter, clearly concluded that the Scheme would be applicable to 40,115 advocates who are both verified on the Bar Council of Delhi roll and who are on the electoral roll. The mere fact that the list of advocates contained advocates who are from the NCR region or neighbouring areas would not by itself make them eligible if the initial eligibility conditions, as approved by the Committee, were not satisfied., Reliance is placed upon the declaration form for the welfare scheme which asks for the voter ID card. According to Mr. Mehra, this means that only if the advocate is registered as a voter in Delhi, in terms of the policy decision taken, can he or she be entitled to the benefit under the scheme. On the question of policy, Mr. Mehra’s concluding submissions are: (i) the object of the scheme is paramount, i.e., it intends to extend benefits to advocates who are enrolled with the Bar Council of Delhi and who are residents of Delhi; (ii) the amount of Rs 50 crore was a sacrosanct amount, not a temporary allocation but a sum within which the benefits are to be made available; (iii) the manner in which the amount was to be extended is again a question of policy. There is no obligation of any nature on the Government of National Capital Territory of Delhi to extend this policy. The scheme is an ex‑gratia scheme meant for the benefit of a particular class of citizens, recognizing their contribution to society. Accordingly, it is submitted that the arguments of the petitioner that the scheme should be extended to advocates from the NCR region or neighbouring areas are without any basis and the policy ought not to be interfered with in any manner., Heavy reliance is placed upon the judgment of the Supreme Court of India in D.P. Joshi v. State of M.B., AIR 1955 SC 334 in order to canvass the proposition that a State Government can extend schemes on the basis of residence. Thus, any scheme which is floated based on domicile or residence would not violate any law, as the classification based on residence is perfectly valid and legal in the constitutional scheme., It is further submitted, relying upon the judgment in State of A.P. v. Nallamilli Rami Reddi, (2001) 7 SCC 708, that as long as the classification is a permissible classification and is based on intelligible differentia, the same ought to be upheld by the Court., Further, it is submitted that the Committee’s recommendation is at best a recommendation insofar as the Government of National Capital Territory of Delhi is concerned and the same would not be binding. What would be binding is the finally approved scheme, which requires that the name of the advocate appear in the voters list in Delhi., Thereafter, Mr. Mehra, Senior Counsel, highlights the issue raised in the constitutional bench judgment in State of (NCT of Delhi) v. Union of India & Another, (2018) 8 SCC 501, to argue that executive power of the Council of Ministers is co‑extensive with the legislative power and, in view of entry 26, List III of the Seventh Schedule to the Constitution of India, the Government of National Capital Territory of Delhi has complete freedom to exercise its executive jurisdiction within its territorial limits only and not beyond that., It is finally argued that, as per paragraphs 25 and 41 of the written submission, admissions to hospitals and to schools cannot be equated with welfare schemes. Giving admission to non‑residents of Delhi in hospitals would constitute a part of the right to life; however, the same standard cannot be applied by the Court when the question is of extending a welfare scheme to advocates who are non‑residents of Delhi., Finally, it is submitted that the initial proposal which was requested from the Government of National Capital Territory of Delhi was for an outlay of Rs 5 crores, which was thereafter increased to Rs 15 crores and finally to Rs 50 crores. Considering the amount of premium now charged by the insurance companies, it is submitted that the Government of National Capital Territory of Delhi cannot be forced to extend the insurance policies to lawyers or advocates who are residing outside the National Capital Territory of Delhi., Insofar as the extension of the date for registration is concerned, Mr. Mehra, Senior Counsel submits that there were a total of 40,000 lawyers which were part of the pool and approximately 37,145 lawyers had applied. Out of them, 6,476 were duplicate and the remaining were 30,669. Thus, out of the 40,000 pool almost 100 % had already applied and hence there is no reason why the date needs to be extended further., Mr. Apoorv Kurup, Advocate for the Union of India submits that in these writ petitions there are no reliefs sought against the Union of India. Insofar as the Union of India is concerned, there is no budgetary provision for contributing for the benefit of advocates from Delhi or the NCR region or neighbouring areas. Moreover, no discrimination can be made at this stage by the Union of India between advocates and other professionals. Since the scope of the present writ is only related to the Chief Minister’s Advocates Welfare Fund, the Union of India has no role to play., Mr. Vaibhav Kalra, Senior Counsel points out order dated 28 August 2020 wherein it is clearly noted that initially the tender was for 40,115 advocates and the said advocates included advocates from the NCR region or neighbouring areas. It was only when the initial tender could not be carried to its logical conclusion and the re‑tender was done that the number of lawyers was restricted. Mr. P.K. Dixit, Senior Counsel, a new lawyer enrolled in December 2020, submits that he is a resident of Delhi and he has now been enrolled with the Bar Council of Delhi and one opportunity ought to be given to him to register for the Scheme., During the pendency of the petitions, the Scheme has been rolled out and insurance has been provided to a large number of advocates. Considering the reliefs sought, the issues that now remain to be adjudicated in these writ petitions are: (i) whether advocates registered with the Bar Council of Delhi who reside in the NCR region or neighbouring areas are entitled to benefits under the Scheme; and (ii) whether registration ought to be reopened to enable advocates who missed the initial deadline to obtain benefit under the Scheme., The profession of advocates is recognised by the Advocates Act, 1961. Under Section 2(a), an advocate means an advocate entered in any roll under the provisions of the Advocates Act, 1961. As per Section 2(d), bar council means a bar council constituted under the Act. Most States and Union Territories have separate bar councils. The State Bar Council for Delhi under Section 2(m) is the Bar Council of Delhi. The Bar Council of Delhi is provided for under Section 3(f) as follows: ‘There shall be a Bar Council for the Union Territory of Delhi, to be known as the Bar Council of Delhi.’, The procedure for admission and enrolment of advocates is set out in Chapter 3 of the Act. Under Section 17, every State Bar Council is required to prepare and maintain the roll of advocates. The said roll consists of the names and addresses of all the persons who are admitted as advocates on the roll of that State Bar Council. The roll of advocates is maintained on the basis of seniority, which is determined on the basis of the date of enrolment or admission of the advocate. Section 18 permits transfer of the name of the advocate from one State roll to another. Under Section 24, any person can be enrolled by the State Bar Council if the person is a citizen of India, has completed 21 years of age, has obtained a degree in law which is recognised by the Bar Council of India and fulfilled such other conditions as specified in the Rules of the concerned State Bar Council. It is relevant to note that under Section 24, in order to obtain enrolment in the roll of a State Bar Council, the person need not be a resident of that particular State. Advocates are the only class of persons who are entitled to practise law as per Section 81. Under Section 34 of the Advocates Act, 1961, High Courts of the respective States have the power to make rules that lay down the conditions subject to which advocates would be permitted to practise in the High Court and the courts subordinate thereto., Advocates who are on the roll of a State Bar Council are subject to the supervision and disciplinary control of the said State Bar Council. The State Bar Council has the power to entertain and consider complaints against an advocate. Under Section 35 of the Advocates Act, 1961, upon consideration of any complaint, the disciplinary committee of the State Bar Council can dismiss the complaint, reprimand the advocate or even resort to the extreme step of removing the name of the advocate from the roll of advocates. If an advocate’s name is removed from the roll of advocates by any State Bar Council, no other bar council can permit such an advocate to be enrolled in their bar council., Apart from the disciplinary committees of the State Bar Councils, the Bar Council of India also has disciplinary powers over advocates. In addition to the provisions of the Advocates Act, 1961, the Bar Council of India is governed by its own rules, namely the Bar Council of India Rules, 1975, which were last amended in 2020., Insofar as the Bar Council of Delhi is concerned, there are various rules which have been enacted. The Bar Council of Delhi Rules, 1963 are quite extensive and the relevant rules are set out below: Rule 115 – Every advocate shall notify the Council from time to time any change of address and all suspensions or assumptions of practice. Every such intimation shall contain the roll number of the advocate, the date of his enrolment, his address and other necessary particulars. Rule 120 – The Council shall prepare and maintain a Roll of Advocates in which shall be entered the name, address and the date of enrolment of each advocate and any action decided to be taken by the Disciplinary Committee against such an advocate from time to time. Rule 123 – In case of an advocate duly transferred to the Bar Council of another State, his name shall be removed from the roll and an intimation to that effect shall be sent to the Bar Council of the State to which he has been transferred as well as to the Bar Council of India. In case of an advocate whose name has been duly transferred from the Bar Council of another State, an entry to that effect, maintaining his seniority as in the State from which he has been transferred, shall be made in the roll. Rule 125 – Subject to the provisions of Section 21(I) of the Act, any dispute arising in respect of the seniority of any person on the roll of advocates maintained by the Council shall be referred to the Enrolment Committee which shall submit its report to the Council. The decision of the Council thereon shall be final., The declaration form to be filed by every person who intends to get enrolled with the Bar Council of Delhi requires the person to fill in his name, address, date of birth etc. The form requires the advocate to express his intention to practise as an advocate within the jurisdiction of the Bar Council of Delhi. The relevant paragraph of the said form reads: ‘I intend to practise as an Advocate within the jurisdiction of the Bar Council of Delhi and have therefore to request you to enter my name and address on the Roll of the Bar Council.’, In the application form to be filed with the Bar Council of Delhi, the permanent address as well as the temporary/present address is sought. The other declarations which are sought are that the person proposes to practise law within the State of Delhi. An undertaking is given in the following terms: (c) I do hereby declare and undertake that (iv) I intend to practise ordinarily and regularly within the jurisdiction of the Bar Council of Delhi; (v) I shall inform the Bar Council of any change of address of my residence or place of practice for the proper maintenance of the roll and the voters list., Apart from the provisions of the Advocates Act, 1961 and the Bar Council of Delhi Rules, 1963, the Bar Council of India has also enacted the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015 (hereinafter, BCI‑PP Rules). Under Rule 5 of these rules, the Bar Council of India issues a certificate of practice to advocates after they qualify the All India Bar Examination. Under Rule 6, an advocate needs to be a member of the bar association where he or she normally practises law. Under Rule 6.2, if an advocate leaves one bar association and joins another due to change of place of practice or by reason of change of field of law, intimation of this must be given to the State Bar Council. As per these rules, the verification of lawyers is conducted by the bar councils and the certificate of practice is only valid for a period of five years., A conjoint reading of the provisions of the Advocates Act, 1961, the Bar Council of Delhi Rules, 1963 and the BCI‑PP Rules shows that, insofar as advocates are concerned, primacy is given to the place of practice and not to the place of residence of the advocate. An advocate is entitled to register in the State where he or she intends to primarily practise. The reason is that an advocate may have a permanent place of residence in any part of the country but choose to practise in a different geographical area. Financial constraints could also compel advocates to not live in a metropolitan area but still practice in the said metropolitan area. So long as the advocate intends to regularly practise in a particular geographical territory, he or she is entitled to enrol with the Bar Council of that State or Union Territory. Upon enrolling with a particular Bar Council, the advocate is governed and controlled by the rules and regulations of that Bar Council. In none of these statutory provisions or rules is any importance given to the place of residence of the advocate. The address of the advocate is sought only as a means of information and can be changed with intimation to the Bar Council. Thus, the place of residence of the advocate does not affect the status of the advocate or take away the right of the advocate to practise in a particular jurisdiction., The capital city of India, Delhi, enjoys a unique position, especially in respect of the practice of law. The physical location of the Supreme Court of India in Delhi is a major focal point for advocates from across the country. It is the aspiration of most advocates to be able to practise in Delhi. A large number of specialised forums, authorities etc., where advocates can practise, are also located in Delhi. The Delhi High Court and the District Courts of Delhi attract a large quantum of important commercial litigation owing to the economic activity in and around Delhi. The quantum of non‑commercial litigation in the courts is also quite high., Delhi itself is home to a large number of families which have moved here during partition and families which have migrated to Delhi due to professional or employment compulsions. There are also a large number of first‑generation lawyers who have shifted to Delhi in order to achieve their aspirations. Delhi is an extremely cosmopolitan city and the profession of law is no exception. Advocates in Delhi hail from all across the country and have achieved great laurels. The Bar in Delhi is extremely cosmopolitan in nature and has accepted persons from all over India with an open heart., It is common knowledge that many people who are employed in Delhi live in the outskirts of Delhi, which include the states of Uttar Pradesh, Punjab, Rajasthan and Haryana, due to various reasons including economic and financial reasons. However, their entire career is based in Delhi. This character of Delhi is, in fact, recognised while constituting the National Capital Region, which includes the Union Territory of Delhi and areas from Haryana, Uttar Pradesh, Rajasthan etc. The National Capital Region Planning Board Act, 1985 has been amended from time to time to add various territories into the NCR region. Delhi is no longer simply the Union Territory of Delhi but includes the NCR region. The people residing in the NCR region or neighbouring areas contribute immensely to the progress of Delhi. It is estimated that a large percentage of employees working in Delhi, including in the Central and State Government as well as private establishments, do not reside in Delhi but in the NCR region or neighbouring areas., Specifically in the case of advocates, a substantial number of advocates who primarily practise in Delhi live in the NCR region or neighbouring areas, including areas such as Noida, Gurugram, Sonepat, Rohtak, Faridabad, Ghaziabad and some areas of Punjab etc. They commute from these areas to Delhi almost on a daily basis. Such advocates are registered with the Bar Council of Delhi and are also members of the Bar Associations of the court complexes where they practise. They play an important role in serving the citizenry in Delhi and assisting courts in Delhi for the adjudication of disputes. They also contribute to the revenue stream of the Delhi Government by practising in Delhi. They may also have chambers or offices in various court complexes in Delhi., The practice of law in Delhi is pivoted on appearing before various courts and forums in Delhi. The advocate’s place of residence has no bearing on this whatsoever. Moreover, the place of residence of the advocate is also not set in stone. Depending upon the income levels of the advocate, the advocate may move to Delhi. It is a matter of common knowledge that not all advocates can afford housing in Delhi and may, therefore, choose to reside in the NCR region or neighbouring areas. However, the character of their practice, being essentially in Delhi, would not change., The question as to whether the Scheme can be restricted to advocates who have voter ID cards of Delhi has various legal dimensions. The fundamental submission of the Government of National Capital Territory of Delhi is that the Scheme, being a welfare scheme and not emanating as a statutory right, is up to the Government to craft in whatever manner it deems fit. If the Government wishes to restrict the benefits of the Scheme to a subclassification of advocates registered with the Bar Council of Delhi as also residing in Delhi, the Court cannot interfere in this policy decision., On the question whether courts can interfere in policy decisions of the Government, the law is well settled by various judgments of the Supreme Court of India, including Balco Employees' Union (Regd.) v. Union of India, (2002) 2 SCC 333; Sidheshwar Sahakari Sakhar Karkhana Ltd. v. Union of India, (2005) 3 SCC 369; and Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737. In Directorate of Film Festivals (supra), the Supreme Court of India observed: ‘The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.’ From the above it is clear that courts may interfere in a policy decision of the Government if the same violates the fundamental rights of the citizens, is opposed to the provisions of the Constitution, is opposed to any statutory provision or is manifestly arbitrary., This Court is of the opinion that the submission that courts cannot at all interfere in policy matters or fix the contours of such policy decisions would thus not be tenable. Almost all decisions of the Government taken as executive decisions would involve policy matters. Such decisions, as per settled law, would be amenable to judicial review if it is seen that the same is either discriminatory or arbitrary. There cannot be a hard and fast rule that in a welfare scheme, courts cannot interfere, even if they are violative of the rights of a section of the citizens., In the backdrop of this legal position, whether the subclassification of advocates registered with the Bar Council of Delhi would be permissible in law is the question. In order to decide this issue, the Court would have to consider the object sought to be achieved by the Scheme and whether, considering the object, the subclassification which has been carved out is based on an intelligible differentia. If the said subclassification is not based on an intelligible differentia, then the condition would be violative of Article 14 of the Constitution of India and the Scheme would be liable to be extended to lawyers from the NCR region or neighbouring areas., The object of the Scheme which is the subject matter of the present writ petition is contained in the following documents: (a) Order dated 29 November 2019 constituting the Committee; (b) The Report of the Committee; (c) The background note put up by the Minister (Law), Government of National Capital Territory of Delhi; (d) Cabinet Decision No. 2794 dated 18 December 2019 approving the Scheme. A perusal of the above four documents shows that the stated object sought to be achieved by the Scheme is the recognition of the role played by advocates in society and the legal profession in particular. The Scheme is for the welfare of advocates. The note put up by the Minister (Law), Government of National Capital Territory of Delhi before the Council of Ministers again states the object of the Scheme to be to recognise the following roles played by advocates in society: drafting the Constitution of India, protecting the basic rights of the citizenry, upholding the concepts of secularism, democracy and egalitarianism, leading and reforming the nation, fighting against wrongs and nurturing an environment which is just and strong and conducive for constructive dialogue among citizens, building a strong democracy, encouraging active citizen engagement and participation in nation‑building, fostering a society which is equitable and conscientious., In recognition of the above‑stated roles played by advocates, the Chief Minister of Delhi announced the Scheme with an outlay of Rs 50 crores to be utilised for the welfare of the legal community. All other documents placed on record by the Government of National Capital Territory of Delhi, including the minutes of meeting, primarily relate to the implementation of the Scheme as conceived in the above four documents., A perusal of the stated objects for which the Scheme was conceived and promulgated shows that the Scheme has the intention of recognising the positive role played by advocates in society. Nowhere do these documents provide a reason for the Scheme to be restricted to those advocates who have a voter ID card of Delhi. The Scheme has not been announced for advocates who constitute the electorate for the Government of National Capital Territory of Delhi but for recognising the contribution of advocates in bettering the lives of the citizenry of Delhi and the practice of law in Delhi., A perusal of the report of the Committee shows that the Committee never considered voter ID cards of Delhi as being an essential pre‑condition for availing of benefits under the Scheme. The pre‑condition that the names of the advocates should be in the voters list of Delhi is seen for the first time in the background note put up by the Minister (Law), Government of National Capital Territory of Delhi before the Council of Ministers. There is no discussion in the entire background note as to the reason why the Scheme should be restricted to only those advocates whose names are in the voters list of Delhi. Apart from the above mentioned four documents, even contemporaneous documents and events such as the Budget Speech 2019‑20 do not restrict the Scheme’s applicability to residents of Delhi., On the request of the Supreme Court of India, the High Court of Delhi and the District Courts Bar Associations, and realising the struggle and difficulties of young lawyers, our Government is proposing a new scheme in 2019‑20 i.e., Chief Minister Advocates Welfare Scheme, for which an amount of Rs 50 crore is provided in the budget. This fund will be utilised for various social security measures: life insurance, medical facility, scholarship etc., for the needy advocates and their family members.
id_878	3	This is a remarkable initiative for the legal community and shall pave the way for the welfare of legal professionals in the country., The stand of the Government of National Capital Territory of Delhi that the pre‑condition of having a voter ID card of Delhi is to honour advocates who are residents of Delhi and intend to exercise the right of adult suffrage and not only advocates practicing in Delhi, is belied by the fact that the documents referred to above do not mention this being the object anywhere. Further, in its own counter affidavit, the Government of National Capital Territory of Delhi has stated as under: XI. It is submitted that the Voter Identity card is a valid residence proof to ensure that the applicant is a resident of Delhi which is apart from the requirement that the applicant practices in the Courts of Delhi., Thus, as is clear from the Government of National Capital Territory of Delhi's counter affidavit and all the other documents referred to above, the voter ID card of Delhi was to merely act as proof of residence. However, the stand of the Government of National Capital Territory of Delhi has changed during the course of hearing to expand that the Voter ID Card has been added to promote democratic ideals within the legal community residing in Delhi. In effect therefore the argument is that it is only meant for advocates who form the electorate for the Government of National Capital Territory of Delhi. This justification however does not appear in any of the base documents referred to above., Rationale behind the sub‑classification. The condition recognised in Cabinet Decision No. 2794 dated 18th December 2019, which approved point number 7 of the background note put up by the Minister (Law), Government of National Capital Territory of Delhi, i.e., that the names of the advocates should appear in the voters list of Delhi, does not find any linkage or connection with the stated object of the Scheme. Advocates who are registered with the Bar Council of Delhi primarily practise in Delhi and contribute to the administration of justice in Delhi. They also contribute to the revenue of Delhi and service the citizens of Delhi. Merely because they reside outside the geographical boundaries of the Union Territory of Delhi does not mean that they do not play the positive role which the Scheme seeks to recognise. Advocates who may be residing outside Delhi but practise in Delhi are intricately and intrinsically linked with the dispensation of justice in Delhi., It is the admitted position that advocates registered with the Bar Council of Delhi would not be entitled to benefits of any schemes launched by other State Bar Councils. In fact, advocates registered with the Bar Council of Delhi are required to engage local advocates in the States of Uttar Pradesh, Punjab, Haryana etc., if they wish to file any case or appear before the Courts in those States. The focus of advocates registered with the Bar Council of Delhi is to pursue their profession in Delhi before the various courts and fora in Delhi. Advocates registered with the Bar Council of Delhi have given a declaration that they would primarily practise in Delhi. Under such circumstances, the pre‑condition that the advocate would have to be in the voters list of Delhi is clearly not connected with the object of the Scheme and, in fact, contradicts the purpose of the Scheme., The objects of the Scheme, which are enumerated above, all relate to the practice of advocates in Delhi and not to their role as voters in Delhi. The Scheme centres around the professional contribution of advocates, not their role as citizens of Delhi who participate in the election process., In the seminal judgment of the Supreme Court of India in State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, the Supreme Court has laid down the test for determining whether a classification is valid or not. The Supreme Court observed as under: \It is now well established that while Article 14 is designed to prevent a person or class of persons from being singled out from others similarly situated for the purpose of being specially subjected to discriminating and hostile legislation, it does not insist on an abstract symmetry in the sense that every piece of legislation must have universal application. All persons are not, by nature, attainment or circumstances, equal and the varying needs of different classes of persons often require separate treatment and, therefore, the protecting clause has been construed as a guarantee against discrimination among equals only and not as taking away from the State the power to classify persons for the purpose of legislation. This classification may be on different bases. It may be geographical or according to objects or occupations or the like. Mere classification, however, is not enough to get over the inhibition of the Article. 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, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) 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.\, The test laid down in Anwar Ali Sarkar (supra) has been applied in innumerable judgments by the Supreme Court of India and various High Courts. In each case, the question is whether the class of persons who are grouped together have been rightly grouped together or not and what is the rationale behind such grouping in the context of the object sought to be achieved. Recently in Union of India v. N.S. Rathnam, (2015) 10 SCC 681, the Supreme Court explained the test as follows: \It is, thus, beyond any pale of doubt that the justiciability of particular notification can be tested on the touchstone of Article 14 of the Constitution. Article 14, which is treated as basic feature of the Constitution, ensures equality before the law or equal protection of laws. Equal protection means the right to equal treatment in similar circumstances, both in the privileges conferred and in the liabilities imposed. Therefore, if the two persons or two sets of persons are similarly situated/placed, they have to be treated equally. At the same time, the principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position. It would mean that the State has the power to classify persons for legitimate purposes. The legislature is competent to exercise its discretion and make classification. Thus, every classification is in some degree likely to produce some inequality but mere production of inequality is not enough. Article 14 would be treated as violated only when equal protection is denied even when the two persons belong to same class/category. Therefore, the person challenging the act of the State as violative of Article 14 has to show that there is no reasonable basis for the differentiation between the two classes created by the State. Article 14 prohibits class legislation and not reasonable classification.\, What follows from the above is that in order to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differential which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that the differential must have a rational relation to the object sought to be achieved by the statute in question. If the Government fails to support its action of classification on the touchstone of the principle whether the classification is reasonable having an intelligible differentia and a rational basis germane to the purpose, the classification has to be held as arbitrary and discriminatory. In Subramanian Singh v. State of Haryana, the Court highlighted that the Land Acquisition Collector, after considering objections, recommended exclusion of certain properties, but the State Government did not accept such recommendations on the ground that the constructions were of B or C class and could not be easily amalgamated into the developed colony. The Court noted that there was no averment in the pleadings of the respondents stating the basis of classification of structures as A, B and C class, nor how amalgamation of all A class structures was feasible while those of B and C class were not. The Court observed that the classification must have an intelligible differentia and a rational basis germane to the purpose; otherwise it is arbitrary and discriminatory., The Court is conscious of the principle that the difference which will warrant a reasonable classification need not be great. However, it has to be shown that the difference is real and substantial and there must be some just and reasonable relation to the object of legislation or notification. Classification having regard to microscopic differences is not good. To borrow the phrase from the judgment in Roop Chand Adlakha v. DDA: To overdo classification is to undo equality., The crux of the classification test is that if there is no rational nexus between the grouping and the object, and the same is found to be arbitrary, the classification is unreasonable and is liable to be struck down., On behalf of the Government of National Capital Territory of Delhi, reliance has been placed on D.P. Joshi v. State of Madhya Bharat, AIR 1955 SC 334, which recognises domicile as a valid basis for classification. It is, however, noticed that in the said decision, the domicile test has been applied in the context of admission to educational institutions etc., and not in respect of social welfare schemes. Moreover, in the present case, the Scheme is not an ordinary scheme; it is a scheme which is meant to recognise the role of advocates in the practice of law. This role is to be gauged not on the basis of the place of residence of the advocate but on the basis of their place of practice, as the former has no recognition whatsoever in the statutes governing the practice of law. The submission on behalf of the Government of National Capital Territory of Delhi that the conditions to be imposed in the Scheme being one of governmental policy, the Supreme Court of India ought not to interfere in the same, would not be correct if the conditions are found to be discriminatory or arbitrary., Furthermore, the Government of National Capital Territory of Delhi had accepted the recommendation of the Committee for providing life insurance and health insurance policies for advocates and their families. Insurance is inextricably linked with healthcare. Though such a scheme, which is in the nature of a special scheme for advocates, cannot by itself be demanded by advocates as a matter of right, once the Scheme is promulgated and is being implemented as a health related scheme, it takes the colour of a scheme which is intending to protect the right to life under Article 21 of the Constitution of India. It is the settled position in law that right to health and healthcare is a part of Article 21 of the Constitution of India, as held in LIC of India & Ors. v. CERC & Ors., AIR 1995 SCC 1811, Kirloskar Brothers Ltd. v. ESIC, AIR 1996 SC 3261 and United India Insurance Company Ltd. v. Jay Prakash Tayal, 247 (2018) DLT 379., A Division Bench of the Supreme Court of India in Social Jurist, A Civil Rights Group v. Government of NCT of Delhi & Anr. (2018) 253 DLT 466 has, in fact, struck down a similar condition while dealing with hospital services for non‑Delhi residents. The Court observed that the condition imposed by a Government hospital in Delhi that its services would not be available for a patient who does not hold a voter ID card of Delhi is liable to be struck down. The observations of the Court are as follows: \The circular therefore clearly creates two categories of patients with two different procedures and systems for treatment and consequently the medical facilities available in the hospital to these two categories of patients differ. There is nothing to indicate as to what is the difference between these two categories of patients. The only differentiation indicated in the counter affidavit filed by the respondents and what is made out from the circular is that one category of persons have a Voter ID Card issued by a particular authority classifying them to be voters of a particular constituency or area within the territory of Delhi and others do not have such a Voter ID Card. The question is – Is this a reasonable basis for classifying identically situated citizens for the purpose of extending medical facility in a hospital? Providing medical facilities to each and every citizen is a constitutional responsibility, and the State may in the matter of providing medical facilities classify citizens into different categories by adopting a principle of permissible classification which has nexus to the purpose to be achieved. In the present case, the classification is based not on the basis of any scientific or intelligential classification or system but it is based on availability of a Voter ID Card and the purpose to be achieved by this classification is to decongest the hospital and to bring in a system of discipline in the functioning of the hospital and running it in a smooth manner. In our considered view, neither is the classification reasonable, is not based on any justifiable reason nor is the nexus said to be achieved a reasonable one.\, The Court further held that health care facility and its access to a citizen is a right available under the Constitution and Article 21 of the Constitution imposes a duty on the Government to take whatever steps are necessary to ensure that every citizen has free and fair access to health facilities and treatment in a Government hospital. In the case of State of Maharashtra v. Chandrabhan Tale, (1983) 3 SCC 387, AIR 1983 SC 803, the Supreme Court held that the right to life enshrined in Article 21 means something more than mere survival; it includes all aspects of life which make a man's life meaningful, complete and worth living. Numerous judgments reiterate that the right to medical aid is a fundamental right of all citizens guaranteed under Article 21. The Supreme Court in Confederation of Ex‑Servicemen Associations v. Union of India, (2006) 8 SCC 399 evaluated this principle. It is also a well‑settled principle of law that non‑availability of finance infrastructure facilities cannot be a ground for a State to say that medical facilities cannot be made available., In Paschim Banga Khet Mazdoor Samity v. State of West Bengal, denial of emergency medical aid in a Government hospital was classified as violating the mandate of Article 21. The Supreme Court laid down that financial resources cannot be a constraint in providing medical facilities to a citizen. The State cannot avoid or shirk away from this constitutional obligation on account of financial constraint or non‑availability of facilities. The justification offered by the State Government in the present case shows shirking of its constitutional liability. A State is obliged and mandated to provide all such facilities as are required under Article 21 and the reasons given cannot be substantial or reasonable., The Government of National Capital Territory of Delhi cannot impose the condition of residence in Delhi on advocates and not on its own employees. In fact such a condition is not imposed by the Government of National Capital Territory of Delhi on its own employees for whom it launched a Health Scheme. The relevant FAQs relied upon on behalf of the Petitioners are set out below: Q1: What is the Delhi Government Employees Health Scheme? Delhi Government Employees Health Scheme is a welfare scheme of Delhi Government for providing comprehensive medical facilities to its beneficiaries. The scheme is based on Central Government Health Scheme pattern and generally follows CGHS rates and provisions. Q16: Are the scheme benefits available to pensioners residing outside Delhi/NCR also? The beneficiaries who travel/settle outside Delhi/NCR may avail non‑emergent treatment directly from any Government/ Government empanelled private hospital. However, the expenditure incurred on such treatment will be reimbursed by the concerned department, where the beneficiary is working or retired from, as per CGHS approved rates of that city/nearest CGHS covered city centre then rates of that State hospital or CGHS rates of that city, whichever are less are reimbursable. From the FAQs it is clear that employees of the Delhi government are entitled to benefits of various schemes without any distinction carved out on the basis of residence. There is no reason why the same principle ought not to be applied in respect of advocates., From the above discussion it is firstly clear that the scheme of the Advocates Act, 1961 as also the various Bar Council Rules and Regulations give primacy to the place of practice and not residence. Governmental policies are amenable to judicial review and if the allegation is one of discrimination the same would have to be examined on the touchstone of Article 14. The Scheme carves out a distinction within advocates registered with the Bar Council of Delhi, between those advocates who are residents of Delhi and those who are not. The Scheme is extended to the former and not to the latter. The said classification does not have a rational nexus with the object of the Scheme which is to recognise the contribution of advocates to the practice of law in Delhi. The unique nature of the capital city of Delhi and the National Capital Region is that several advocates primarily practising in Delhi's courts and tribunals and are also voters in Bar Associations may reside in and around Delhi. To exclude such advocates would be unreasonable and contrary to the object of the Scheme itself. In view of the above, the Supreme Court of India holds that the condition that advocates enrolled with the Bar Council of Delhi should also be in the voters list of Delhi for being eligible to avail of the benefits of the Scheme would run foul of Article 14 of the Constitution of India. In fact, the understanding of the Government of National Capital Territory of Delhi itself was that all advocates who are members of the Bar Council of Delhi would be entitled to benefits under the Scheme, which is evident from the first NIT where the base number of advocates was considered as 40,115. It is not in dispute that this number included advocates from the NCR region/neighbouring areas. Moreover, in the documents placed before the Supreme Court of India, no reason has been provided for the imposition of the pre‑condition that advocates must be in the voters list of Delhi. Accordingly, the Supreme Court of India holds that the said condition and the resultant classification has no nexus with the object sought to be achieved by the Scheme and is thus discriminatory and arbitrary., The Advocates Welfare Fund Act, 2001 has not been implemented till date. The purpose of enactment of the said Act was to provide social security, especially to junior lawyers, indigent and disabled lawyers. The provisions in the various Bar Council statutes were considered insufficient to provide financial assistance and launch welfare schemes for indigent, disabled or other advocates. The Act contemplates the creation of a Welfare Fund for advocates and the constitution of a trustee committee for the implementation of the fund. Section 24 envisages obtaining of insurance for members of the fund. The provision reads: 24. Group Life Insurance for members of Fund and other benefits. The Trustee Committee may, for the welfare of the members of the Fund, (a) obtain, from the Life Insurance Corporation of India or any other insurer, policies of Group Insurance on the life of the members of the Fund; or, The fund is overseen by the Bar Council of Delhi in Delhi. When queried, the Court was informed by senior counsel for the Bar Council of Delhi that though 20 years have passed since the enactment of this statute, group insurance of any form for advocates registered with the Bar Council of Delhi has not been possible due to the lack of adequate funds. It is stated that the Bar Council now gives out sums of money as compensation in the case of death and some health related emergency, however, the same is not uniform and depends upon the facts and circumstances of the concerned advocate. It is thus clear that the Advocates Welfare Fund Act, 2001 has not been able to achieve insurance for the entire group of advocates enrolled with the Bar Council of Delhi., In this context, the Scheme floated by the Government of National Capital Territory of Delhi deserves to be lauded for recognising the need of advocates who belong to various strata of society for having insurance for themselves and their families. Since the Scheme was announced in December 2019, though there were a few impediments in the implementation, during the pendency of these petitions a substantial number of advocates enrolled with the Bar Council of Delhi with voter ID cards of Delhi have already availed of the Scheme. Thus, the Scheme is already having a practical impact on the lives of advocates practising in Delhi, especially during the pandemic., Vide order dated 4th March 2021, the Bar Council of Delhi was asked to disclose the funds available with it. The status report submitted reads as follows: 1. Post the enactment of the Advocates Welfare Fund Act, 2001, the details of annual amount collected by the Bar Council of Delhi under the said Act, on yearly basis since 2001 is annexed as Annexure‑1. 2. The details of total amount disbursed on an annual basis to advocates who are in need of medical or any other form of benefits, or any ex gratia payment made to any member of the Bar Council of Delhi or to the family of such member is annexed as Annexure‑2. 3. The details of corpus of the Bar Council of Delhi, which exists as on today collected under the Advocates Welfare Fund Act, 2001, for the welfare of the advocates enrolled with the Bar Council of Delhi, is annexed as Annexure‑3., Issue (ii) – Whether registration ought to be reopened to enable advocates who missed the initial deadline to obtain benefit under the Scheme? Insofar as the re‑opening of registration for new advocates is concerned, a proper scheme would have to be evolved. Re‑opening of the registration for the current year would not be possible considering that this is the first year of the implementation of the Scheme and the number of advocates who were considered by the Committee in late 2019 and early 2020 was already frozen. For the future, however, registration would have to be re‑opened., Upon extension of the Scheme to advocates from the NCR region/neighbouring areas, newly enrolled advocates and advocates who may register afresh for the Scheme having been enrolled post the deadline of 2019, the number of advocates who may become eligible may increase considerably. At the moment, the stand of the Government of National Capital Territory of Delhi is that only Rs.50 crore has been fixed as the outlay for the purpose of this Scheme. With the increase in the number of advocates that is expected every year and taking into consideration the pandemic, as also the inflationary trends, it is hoped and expected that the Government of National Capital Territory of Delhi would be able to increase the outlay of the Scheme from year to year.
id_878	4	However, considering that the total outlay at the moment is only Rupees 50 crores, the Scheme having been extended to all advocates who are enrolled with the Bar Council of Delhi, while availing the insurance for such advocates, there could be some deficit of funds. From the data filed by the Bar Council of Delhi, it is clear that the Bar Council of Delhi has funds to contribute to the Scheme, though the same may not be fully sufficient to fund the entire Scheme. The Advocates Welfare Fund Act, 2001 having been enacted for the purpose of welfare of advocates, the Supreme Court of India is of the opinion that to the extent possible, the said Fund ought to be utilised to support the Scheme for insurance. In the past, in W.P.(C) 6705/2014 titled KR Chitraw v. Advocates Welfare Trustee Committee & Ors., concerns have been expressed by the Supreme Court of India on the manner of utilization of funds collected by the Bar Council of Delhi under the Advocates Welfare Fund Act, 2001. In order to ensure that the utilization of funds is streamlined and the purpose for which the fund was created is at least partially satisfied, the Bar Council of Delhi would be liable to share some part of the responsibility for insurance of advocates. Some of the petitioners and their counsels have also expressed willingness to contribute some part of the premium. In a group insurance scheme of such a big scale, insurance companies are likely to provide substantial benefits of lower premiums, as is evident from the insurance already availed by advocates from the Life Insurance Corporation and National Insurance Company Limited. The annual premium amount for each advocate for both life insurance and Mediclaim for four members of the family i.e., advocate, spouse and two dependent children up to the age of 25 years, is in the range of Rupees 14,000. Thus, the burden on each advocate, even if some contribution is made by them, is not likely to be very high. Thus, the Bar Council of Delhi either by itself or by receiving contributions from the advocates themselves ought to willingly share the burden., In view of the above discussion, the following are the conclusions and directions: a. The Chief Minister's Advocates Welfare Scheme (the “Scheme”) announced by the Government of National Capital Territory of Delhi is a Scheme that has a laudable objective of recognising the role of lawyers in protecting the rights of citizens and their constructive role in society. It is also in recognition of the role played by advocates and their contribution to the legal profession. The Scheme has, with this objective, already enabled insurances for thousands of advocates in Delhi and has provided relief and succour to them especially during the pandemic. However, the condition in the Scheme that it would be applicable only to residents in Delhi with Voter IDs is held to be discriminatory and arbitrary as the subclassification among the advocates enrolled with the Bar Council of Delhi has no rational nexus with the object to be achieved. Accordingly, the Scheme shall be extended to all advocates registered with the Bar Council of Delhi, whose names and credentials are verified, without insistence of Voter ID showing residence in Delhi., For the current year's policies, all advocates who had registered themselves and are eligible for the benefits under the Scheme shall be extended the benefits. The Government of National Capital Territory of Delhi has already spent approximately Rupees 40 crores to enable advocates to avail of the insurance policies. Out of the total number of advocates for whom policies have already been procured, there are 5,044 advocates from the NCR region/neighbouring areas within the verified list of advocates for whom premium has already been paid. They shall enjoy the benefits of the Scheme. All such further eligible advocates, who had registered within the deadlines prescribed, as per this judgment, who have been left out shall now be included and the policies/coverage, on the same terms, for the remainder period of the current year, shall be procured from the Life Insurance Corporation and National Insurance Company Limited by 31st July 2021. Only the pro‑rata premium would be liable to be paid by the Government of National Capital Territory of Delhi to the insurance companies, which the insurance companies had agreed to, during the course of hearing., Insofar as the future years are concerned, since the pool of advocates has been increased, the total premium for life and Mediclaim insurance may be more than the budget outlay of Rupees 50 crores. The Government of National Capital Territory of Delhi cannot be made to solely bear the burden of providing the insurance premium, though it is urged that the outlay may be increased depending upon the requirements, taking inflationary trends etc., into consideration. The Bar Council of Delhi, which has been unable to provide group insurance for advocates, ought to complement the efforts of the Government of National Capital Territory of Delhi which has clearly taken the position that the issue is not being treated in an adversarial manner. Thus, the deficit on a year‑to‑year basis, beyond the budgeted amount of the Government of National Capital Territory of Delhi, shall be funded by the Bar Council of Delhi., For the said purpose, the Bar Council of Delhi may source the funds in the following manner. It is free to utilize its own funds, including the funds collected under the Advocates Welfare Act, 2001. It is free to seek any voluntary contribution from senior advocates and other financially well‑off advocates, who may be willing to contribute for the betterment of the legal community. The Bar Council of Delhi may, if the need so arises, collect some part of the premium from the advocates who are beneficiaries of the Scheme., Irrespective of the manner in which the funds would be raised by the Bar Council of Delhi, the deficit on an annual basis shall be contributed by the Bar Council of Delhi to the Government of National Capital Territory of Delhi to enable it to provide insurance under the Scheme to advocates., The Law Secretary of the Government of National Capital Territory of Delhi and the Chairman of the Bar Council of Delhi shall be responsible for working out the modalities of the Scheme. Both the Government of National Capital Territory of Delhi and the Bar Council of Delhi shall appoint Nodal Officers to coordinate with each other so as to streamline the implementation of the Scheme. The Government of National Capital Territory of Delhi, after consulting the Bar Council of Delhi, would be free to decide on the nature of the Scheme to be availed of from the insurance companies, either on an annual basis or on a periodic basis such as three years or five years, so that the annual premia can be duly scaled down. The new scheme in terms of the present judgment shall accordingly be announced by 30th September 2021, after consultation with the Bar Council of Delhi and insurance companies. Upon announcement of the new scheme, fresh registrations for advocates shall be opened., The writ petitions, and all pending applications are disposed of in the above terms. Parties are permitted to approach the Supreme Court of India for clarification or further directions, if the need so arises., The Supreme Court of India records its appreciation for the assistance rendered by all the senior counsels, advocates and parties who appeared in these petitions.
id_88	0	Criminal Bail Application No. 13/2022 (Nitesh Narayan Rane Vs. State of Maharashtra) The applicant has filed this application for regular bail under Section 439 of the Code of Criminal Procedure in Criminal Report No. 387/2021, registered at Kankavali Police Station, for offence under Section 307 and Section 120-B read with Section 34 of the Indian Penal Code., Read application and the reply filed by learned Special Public Prosecutor at Exhibit 12 and the reply filed by the Investigating Officer at Exhibit 13. The informant has also appeared and filed written notes of argument Exhibit 08., Heard learned counsel Shri Satish Mane‑Shinde and Shri S. D. Desai for the applicant and learned Special Public Prosecutor Shri Pradeep Gharat for the prosecution and the learned counsel Shri Vikas Patil‑Shirgaonkar for the informant on video conferencing. Perused the police papers., The applicant is a sitting MLA from Kankavali Constituency elected in 2014 and re‑elected in 2019 on the ticket of the Bharatiya Janata Party. On the basis of a report lodged by Santosh Manohar Parab, resident of Kankavali, Criminal Report No. 387/2021 was registered for offences under Section 307 and Section 120‑B read with Section 34 of the Indian Penal Code. The informant, a contractor and member of the ruling Shiv Sena Party, was returning home on 18‑12‑2021 at about 11.00 a.m. on his Hero Shine motorcycle (registration No. MH‑07/AF‑3098) from Kankavali‑Nardave Naka to Kanedi. He was hit from behind by a silver coloured Innova car without a number plate near Sheetal Chinese Centre, Kanedi Road, Kankavali. The impact caused the motorcycle to fall on him and he was dragged for about 15 feet, sustaining injury to his right hand. An unknown person alighted from the car, asked the informant whether he was working for Mr Satish Sawant, and assaulted him with a knife (paper cutter) on the right side of his chest, causing injury. The assailant said the incident should be reported to Gotya Sawant and Nitesh Rane, then made a call and fled in the car. The informant gave a description of the assailant and his clothing. He was taken to the Sub‑District Hospital, where the Investigating Officer recorded his statement. The crime was then registered against unknown accused., In the course of investigation, four accused (Chetan Pawar, Karan Balasaheb Kamble, Anil Shankar Nakka and Karan Dattu Kamble), all residents of Pune, were found fleeing in the Innova car matching the description near Phonda Check Post and were arrested on 18‑12‑2021. The Innova car (registration No. MH‑14/BX‑8326) was seized. On 20‑12‑2021 accused No.5 Deepak Namdev Waghode was arrested. Accused Dnyaneshwar alias Mauli Digambar Devnur and Dheeraj Jadhao, residents of Kharadi, Taluka Haveli, were shown to be wanted in the crime. A Maruti Swift Desire and mobiles of the accused were seized. Weapons used in the offence were recovered as per the disclosure statement of accused No.2 Karan Kamble. According to the Investigating Officer, the crime was committed on the direction of the wanted accused Dnyaneshwar alias Mauli and Dheeraj Jadhav for consideration of Rs 1 to 1.5 lakh, and they were paid Rs 20,000. Dnyaneshwar alias Mauli had sent the photograph of the informant to accused No.2 Karan Kamble on WhatsApp. At the time of the incident Dnyaneshwar alias Mauli, Dheeraj Jadhav and accused No.5 Deepak Waghode came by a Swift car (registration No. MH‑12/NB‑2591). They met together. Dheeraj Jadhav pointed out the informant’s house for keeping watch. Accused No.2 Karan Kamble called Dnyaneshwar alias Mauli and informed him of the informant’s presence, after which the crime was executed. After execution, Dnyaneshwar alias Mauli was informed by phone that “the work has been done”. Dheeraj Jadhao informed accused No.6 Sachin Satpute that “the work has been done” and to confirm the man. Mobile conversations between accused No.3 and No.4 occurred before and after the crime. Calls on the day of the incident from Dheeraj Jadhao to accused No.6 Sachin Satpute led to the arrest of accused No.6 Sachin Satpute in Delhi on 26‑12‑2021., It was further disclosed that a conspiracy was hatched with accused No.6 Sachin Satpute and the applicant on 28‑08‑2021 at Oros Phata in a vanity van. At that time the applicant informed accused No.6 that the informant was spreading misunderstandings among his followers about the Rane family and should be taught a lesson. Accused No.6, with the help of accused Dheeraj Jadhao and Dnyaneshwar alias Mauli, gave effect to the conspiracy by hiring the other accused. The applicant had given a photo of the informant to accused No.6 Sachin Satpute. The place where the conspiracy was hatched has been disclosed as per Section 27 of the Indian Evidence Act. According to the prosecution, the offence was committed as per the directions of the applicant and accused Gotya Sawant with the help of other accused., Learned counsel for the applicant Shri Satish Mane‑Shinde submitted that the Hon'ble Supreme Court has permitted the applicant to make surrender before the concerned trial court and apply for regular bail. The Hon'ble Supreme Court also granted interim protection against arrest to the applicant for ten days from 27‑01‑2022. The applicant appeared before the Special Court and filed the bail application, submitting that because of the interim protection he cannot be taken into custody and his physical appearance amounts to surrender. The Special Court being an appropriate court, the applicant is entitled to file the bail application. In support of his contention, he placed reliance on the decision in Sundeep Kumar Bafna Vs. State of Maharashtra, 2014 LawSuit (SC) 207, wherein it was observed that the appellant declined anticipatory bail, the Apex Court granted four weeks time to apply for regular bail, the High Court declined to accept the surrender and held that surrender could only be possible before a magistrate empowered under Section 167 of the Code of Criminal Procedure to remand the accused. The Court held that the Code of Criminal Procedure does not prohibit surrender before a Session Court or High Court and that where the offence is punishable with death or life imprisonment, the powers of a magistrate under Section 437 are excluded., In this judgment the Hon'ble Supreme Court relied on the decision in Niranjan Singh and another Vs. Prabhakar Rajaram Kharote, 1980 SCR (3) 15, wherein it was observed that a person is in judicial custody not only when arrested and produced before a magistrate, but also when he surrenders before the court and submits to its directions., Learned counsel for the applicant relied on the decision in Balkrishna Dhondu Raul Vs. Manik Motiram Jagtap, 2005 LawSuit (Bombay) 373, where the Bombay High Court observed that after the Court granted liberty to the respondent to surrender before the appropriate court and apply for regular bail, the respondent became liable to surrender before the court before his bail could be considered. The Court held that surrender before the Judicial Magistrate First Class would not be appropriate where the offence is punishable with life imprisonment; the Sessions Court was the appropriate forum., Learned counsel for the applicant further submitted that the alleged weapon used was a paper cutter and the injury to the informant was simple, not amounting to grievous hurt and not on a vital part of the body. The informant was discharged the next day from the hospital, having sustained only a scratch injury. Therefore, the offence under Section 307 of the Indian Penal Code is not attracted. The alleged weapon and other articles have already been seized. The applicant was a campaigner in the District Bank elections in Sindhudurg and has been falsely implicated due to political rivalry. Only two persons were in the Innova car, however the investigating agency arrested four persons without any link. The statement of Satpute suggesting a meeting in a vanity van is involuntary. The vanity van was hired for Janashirvad Yatra by a party member from Mumbai. The applicant replied to the notice under Section 91 of the Code of Criminal Procedure and gave information about the owner of the vanity van. The applicant is an MLA and not a conspirator. There is no necessity of custodial interrogation. The applicant offered to produce his mobile on 24‑01‑2022 and has cooperated with the investigating agency. The calls of the applicant’s personal assistant and Satpute cannot be connected with the applicant. There is no necessity of seizure of the vanity van. The material is not sufficient to prove the charge. Therefore, he prayed for grant of regular bail on necessary conditions., Learned counsel Shri S. D. Desai for the applicant submitted that the applicant visited the police station as per the notice under Section 91 of the Code of Criminal Procedure. His statement was recorded on 24‑12‑2021 and he also visited on 24, 25 and 26‑01‑2022 giving information. In the notice three mobile numbers were noted; the first mobile has not been in use for seven years, the second for one year, and the applicant offered a third handset to the Investigating Officer, which was not seized. The applicant handed over his passport and a xerox copy was taken and the passport was returned. The applicant is not connected with the absconding accused and there is no evidence of any contact with them. Three cases are registered against the applicant in respect of public agitation. The District Bank elections were declared on 31‑11‑2021; at the time of the alleged conspiracy the elections were not declared. Therefore, the record shows that the applicant has been falsely implicated due to rivalry. The counsel prayed for grant of regular bail., Learned counsel for the applicant relied on the decision in Rajkumar S/o Jagannath Malviya and another Vs. State of Maharashtra, Criminal Appeal No. 522 of 2021, decided on 22‑12‑2021, wherein doctors classified the injuries as simple injuries to the wrist, forearm and elbow, and prima facie it could not be said that there was intention to kill to attract Section 307 of the Indian Penal Code., The counsel also relied on the decision in Wasi Ahmed Shaikh Vs. State of Maharashtra, Anticipatory Bail Application No. 3201 of 2021, decided on 06‑01‑2022, wherein it was observed that the injuries are simple in nature, the incident is old, and custodial interrogation of the applicant is not necessary., The counsel further relied on the decision in Miss Harsh Sawhney Vs. Union Territory (Chandigarh Administration), Criminal Appeal No. 110 of 1978, decided on 20‑02‑1978, wherein it was observed that the appellant’s presence is not necessary for a search and recovery of documents, and that the appellant may appear for interrogation whenever reasonably required, subject to her right under Article 20(3) of the Constitution., Learned Special Public Prosecutor Shri Gharat submitted that before filing the bail application no notice was served to the prosecution. The Special Court cannot take cognizance unless the case is committed for trial. Before making an application for bail under Section 439 of the Code of Criminal Procedure the applicant should have been in custody. The applicant was not in any type of custody when the bail application was moved. By filing the application, the applicant sought benefit under Section 438 of the Code of Criminal Procedure and bail in the event of his arrest. The anticipatory bail application filed by the applicant was rejected by this Court on 30‑12‑2021. The anticipatory bail application before the Hon'ble High Court (ABA No. 02/2022) was rejected on 17‑01‑2022. The applicant then filed Special Leave to Appeal (CRI) No. 530/2022 before the Hon'ble Supreme Court, which rejected his prayer of anticipatory bail by order dated 27‑01‑2022. Thus, the petitioner has already exhausted the remedy under Section 438 of the Code of Criminal Procedure. Making a bail application while not in custody amounts to an anticipatory bail, which is not available. Therefore, the bail application is not maintainable. Since the anticipatory bail application has been rejected up to the Hon'ble Supreme Court, custody of the applicant is required for proper investigation., He further submitted that the Hon'ble Supreme Court has permitted the applicant to surrender before the concerned trial court and apply for regular bail. Therefore, making surrender before the trial court is a condition precedent. For applying for regular bail he should first surrender before the court. If the condition is not complied, the bail application cannot be entertained. The interim protection of ten days was for preparing surrender. Once he filed the bail application, the ten‑day protection ended. Therefore, the applicant must be taken into custody and forwarded to the concerned magistrate under Section 167., He further submitted that the facts in Sundeep Kumar Bafna are altogether different; in that case summons and warrants were issued and custody had started. The decision in Balkrishna Dhondu Raul is also not applicable to the present facts., He relied on observations of the Hon'ble High Court in ABA No. 02/2022, paragraphs 24, 25, 31 and 32, stating that the High Court rejected the anticipatory bail and the Supreme Court refused to interfere. The custodial interrogation of the accused is necessary for proper investigation, and the applicant has not submitted to the directions of this Court. Therefore, the application is not maintainable., On merits, the Special Public Prosecutor submitted that the informant was dashed from behind by the Innova car, fell, and his motorcycle fell on him. He was then assaulted with a knife on the chest, a vital part of the body, causing five injuries. All accused who executed the crime are from Pune. There was no enmity between the informant and the accused; they acted on directions of someone. Investigation disclosed that the accused were hired for consideration of Rs 1.5 lakh and Rs 20,000 was paid. The applicant is the main accused. Prima facie, the involvement of the applicant has been shown; he is not falsely implicated. Custodial interrogation of the applicant is necessary for proper and effective investigation. The conspiracy was hatched to teach a lesson to the informant. CCTV footage captured the Innova and Swift cars, and electronic evidence shows the connection between the applicant and the other accused. Therefore, the Special Public Prosecutor prayed for rejection of the bail application., Learned counsel for the informant submitted that the anticipatory bail application of the applicant has been rejected up to the Hon'ble High Court. The applicant has not filed an application for surrender. The present application is in the nature of an application under Section 438 of the Code of Criminal Procedure and is premature. Before entertaining an application under Section 439, the applicant should have been in custody; mere presence is not sufficient. The applicant has not acted as per the directions of the Hon'ble Supreme Court. Therefore, he prayed for rejection of the application., In the light of the rival submissions, I have gone through the record and police papers. It is pertinent to note that the applicant has not filed any specific written application for voluntarily making surrender before this Court preceding the bail application. The bail application is a simple application for regular bail under Section 439 and is silent about voluntary surrender. According to counsel, there is no necessity to take the applicant in custody since the Hon'ble Supreme Court granted interim protection from arrest for ten days from 27‑01‑2022. However, without a written application for voluntary surrender, the applicant cannot be taken into judicial custody. This Court is not empowered to deal with the accused under Section 167; the accused must be forwarded to the concerned Judicial Magistrate First Class for compliance with Section 167, after which the regular bail application can be entertained. The applicant appears to be seeking release on regular bail without undergoing custody or arrest, which is not maintainable., The learned counsel for the applicant relied on Sundeep Kumar Bafna, noting that the accused can surrender before the Court of Sessions. In that case the accused pleaded in writing for permission to surrender to the High Court, and the matter was committed to the Court of Sessions. The present case is at the investigation stage, so the facts are different., The learned counsel also relied on Balkrishna Dhondu Raul, where the accused surrendered before the Sessions Court, which then granted provisional bail, and the accused later appeared before the Judicial Magistrate First Class. The present facts are different., It is pertinent to note that the applicant filed Anticipatory Bail Application No. 209/2021 before this Court, which was rejected on 30‑12‑2021 on the ground that custodial investigation is required to recover the vanity van, mobiles and for confrontation of the applicant with the arrested accused., Subsequently, the applicant preferred Anticipatory Bail Application No. 02/2022 before the Hon'ble High Court, which was rejected on 17‑01‑2022. The High Court observed that the incident occurred on 18‑12‑2021, and the applicants were called for interrogation on 24‑12‑2021, after which they were allowed to go. The Special Public Prosecutor suggested that the applicants were implicated due to the catcall incident and the bank election, and could have been arrested on 24‑12‑2021. The investigation indicated that the complicity emerged after the arrest of Sachin Satpute on 26‑12‑2021. The counsel objected to reliance on Satpute’s statement, citing inadmissibility under Section 25 of the Evidence Act. The applicant, an MLA, used seven mobile phones, and calls were made from his personal assistant’s phone. There were 65 calls between Sachin Satpute and the applicant’s personal assistant, Rakesh Parab, and certain calls between Rakesh Parab and Applicant No.2., The prosecution relies on the following circumstances to show complicity of Applicants No.1 and 2: (i) meeting between Applicant No.1 and Sachin Satpute on 28‑08‑2021 in a vanity van at Kankavali; (ii) statement by the injured that assailant Karan Balasaheb Kamble after the assault mentioned the names of Applicants Nitesh Rane and Gotya Sawant; (iii) identification of Karan Kamble by the injured in a TI parade; (iv) exchange of photographs of the injured among Applicant No.1, Sachin Satpute, Dheeraj Jadhao and Dnyaneshwar alias Mauli; (v) interrogation of Sachin Satpute after his arrest on 26‑12‑2021; (vi) call data records showing repeated contact between the accused and the applicant’s personal assistant. Prima facie, these circumstances indicate the need for custodial interrogation., It is necessary to note that the arrested accused Nos.1 to 6 and accused Dheeraj Jadhao and Dnyaneshwar alias Mauli are all from Pune, and interrogation of the applicants is necessary to investigate the conspiracy, including the exchange of money. Custody is sought not only for recovery of articles but also for interrogation, which is essential. The Supreme Court in the case of Anil Sharma, cited in the Constitution Bench decision in Sushila Aggarwal’s case, held that custodial interrogation is qualitatively more elicitation‑oriented than questioning a suspect who is protected by Section 438., The court must balance personal liberty with the need for proper investigation in the larger societal interest. At this stage, proper investigation is the paramount consideration, and the applicants in ABA No.02/2022 are not entitled to pre‑arrest bail., The Hon'ble High Court observed that custody is sought not only for recovery of articles but also for interrogation, and proper investigation is the paramount consideration., It is pertinent to note that the applicant filed Special Leave to Appeal (CRI) No. 530/2022 before the Hon'ble Supreme Court. The Supreme Court, by order dated 27‑01‑2022, observed: “We see no reason to interfere with the impugned order passed by the High Court rejecting the anticipatory bail application. However, taking into consideration the facts and circumstances of the instant case, the petitioner is permitted to surrender before the concerned trial court and apply for regular bail. If the petitioner surrenders before the concerned trial court and applies for regular bail, the same shall be considered and disposed of on its own merits and in accordance with law, expeditiously. For a period of ten days from today, interim protection against arrest is granted to the petitioner. We make it clear that we have not expressed any opinion on the merits of the case and the same shall be decided by the concerned trial court.”, Thus, the anticipatory bail application has been rejected up to the Hon'ble Supreme Court, which means custodial interrogation of the applicant is necessary for proper and effective investigation. There has been no substantial change in circumstances since the rejection.
id_88	1	Perusal of the injury certificate of the informant shows that the informant had sustained five injuries including an incised wound of 35 cm long by 0.8 cm deep on the right side of the chest and an incised wound of size 18 cm by 0.3 cm on the right side of the chest. According to the informant, first he was dashed by an Innova car. When he fell down with his motorcycle on his person, the assailant assaulted him with a knife on his chest., According to the Investigating Officer, there was a conspiracy between the applicant and accused number six in order to teach a lesson to the informant and the other accused were hired to execute the object of the conspiracy. The applicant gave a photograph of the injured person to accused number six and thereafter the other accused were hired and there was constant contact amongst them on mobile phone., The Investigating Officer states that the mobile phones of the applicant and the Vanity van are required to be seized and that the custodial interrogation of the applicant is necessary to confront the other accused. Two accused are still absconding. There is a possibility of economic dealing or exchange of money. Therefore, for effective investigation of the offence, the custodial interrogation of the applicant is necessary., Furthermore, eleven criminal cases are shown to be registered against the applicant, including offences against public servants. Considering the facts and circumstances of the case and the incomplete investigation, the custodial interrogation of the applicant is necessary. If the applicant is granted bail, the investigation will be hampered., The applicant has filed this application simply for regular bail under section 439 of the Criminal Procedure Code without filing a written application for making surrender before the court. The application is premature; hence, the application is not maintainable. Therefore, in the facts and circumstances of the case, the applicant is not entitled to the grant of regular bail. Hence, the application deserves to be rejected.
id_885	0	Petitioner: Smt. Rashmi (Corpus). Respondent: State of Uttar Pradesh and four others. Counsel for Petitioner: Hari Nath Chaubey. Counsel for Respondent: G. A. Additional Government Advocate, Hon'ble Dr. Kaushal Jayendra Thaker, J.; Hon'ble Gautam Chowdhary, J., By way of this petition, the petitioner, through her husband, has sought a direction in the nature of a habeas corpus directing Respondent No. 4, Superintendent, Nari Niketan, Kanpur Dehat, to produce the corpus, namely Smt. Rashmi, wife of Shivam Yadav, before the Supreme Court of India on the date fixed by this Court, or to release the corpus in favour of the petitioner., The corpus is brought before us from Nari Niketan, Kanpur Dehat. She is a major and wishes to reside with her legally wedded husband. Shivam Yadav, husband of the petitioner, is also present before the Supreme Court of India and undertakes that he will keep his wife with all goodness, and it is at his behest that this petition was filed. The mother of the husband also accepts the girl., In that view of the matter, Smt. Rashmi, petitioner herein, shall be released immediately from Nari Niketan, Kanpur Dehat. The police officials who have brought the girl from Nari Niketan, Kanpur Dehat will immediately get her released after lodging her back to Nari Niketan, Kanpur Dehat. A copy of this order will be made available to the Additional Government Advocate, who will transmit the same to the authority concerned, and the authority concerned shall file compliance before the Supreme Court of India on 4 July 2022., We request the Hon'ble Chief Justice to constitute this Bench as we have heard this matter at length. The matter is listed on 4 July 2022 for filing the compliance.
id_886	0	Ashok Bhushan, Judge (for himself and S. Abdul Nazeer, Judge), L. Nageswara Rao, Judge, Hemant Gupta, Judge and S. Ravindra Bhat, Judge have also concurred on Questions Nos. 1, 2 and 3. This Constitution Bench of the Supreme Court of India has been constituted to consider questions of seminal importance relating to the contours and extent of special provisions for the advancement of socially and educationally backward class (SEBC) of citizens as contemplated under Article 15(4) and the contours and extent of provisions of reservation in favour of the backward class citizens under Article 16(4) of the Constitution of India. The challenge and interpretation of the Constitution (One Hundred and Second Amendment) Act, 2018 is also up for consideration., All the above appeals have been filed challenging the common judgment of the High Court of Bombay dated 27 June 2019, by which judgment several batches of writ petitions were decided. Different writ petitions were filed before the High Court of Bombay between the years 2014 and 2019. The matters under challenge are: the Ordinance No. XIII of 2014 dated 9 July 2014 providing 16 % reservation to Maratha; the Ordinance No. XIV of 2014 dated 9 July 2014 providing 5 % reservation to 52 Muslim communities; the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointment to posts in public services under the State) for Educationally and Socially Backward Category (ESBC) Act, 2014; and the Maharashtra State Socially and Educationally Backward Class (SEBC) (Admission in Educational Institutions in the State and for posts for appointments in public service and posts) Reservation Act, 2018 (hereinafter referred to as the Act, 2018)., The High Court of Bombay, by the impugned judgment, upheld the Act, 2018, except to the extent of the quantum of reservation provided under Section 4(1)(a) and 4(1)(b) over and above 12 % and 13 % respectively as recommended by the Maharashtra State Backward Class Commission. The writ petitions challenging the Ordinance XIII and XIV of 2014 as well as the Act, 2014 were dismissed as having become infructuous. A few writ petitions were allowed, a few were detached and other writ petitions have been disposed of., A writ petition under Article 32 of the Constitution of India, namely Writ Petition (Civil) No. 938 of 2020 (Shiv Sangram & Anr. v. Union of India & Anr.) has been filed questioning the Constitution (One Hundred and Second Amendment) Act, 2018., While issuing notice on 12 July 2019, a three‑Judge Bench of the Supreme Court of India directed that the action taken pursuant to the impugned judgment of the High Court of Bombay shall be subject to the result of the Special Leave Petition. It was made clear that the judgment of the High Court and the reservation in question shall not have any retrospective effect. The three‑Judge Bench, after hearing the parties, on 9 September 2020, while granting leave, passed the following order: (A) As the interpretation of the provisions inserted by the Constitution (One Hundred and Second Amendment) Act, 2018 is a substantial question of law as to the interpretation of the Constitution of India, these appeals are referred to a larger Bench. These matters shall be placed before Hon'ble the Chief Justice of India for suitable orders. (B) Admissions to educational institutions for the academic year 2020‑21 shall be made without reference to the reservations provided in the Act. It is made clear that admissions made to post‑graduate medical courses shall not be altered. (C) Appointments to public services and posts under the Government shall be made without implementing the reservation as provided in the Act., A three‑Judge Bench referring the matter to a Constitution Bench referred all the appeals and the order contemplated that the matter shall be placed before the Chief Justice of India for suitable orders. Although the order mentioned that the interpretation of the Constitution (One Hundred and Second Amendment) Act, 2018 is a substantial question of law, the reference was not confined to that question alone. The learned counsel for the parties made elaborate submissions in all the appeals as well as the writ petitions filed under Article 32. The submissions addressed the impugned judgment of the High Court of Bombay. The Court proceeded to hear the parties and decide all the appeals and writ petitions finally., After the appeals were referred to a larger Bench by the order dated 9 September 2020, Hon'ble the Chief Justice of India constituted this Constitution Bench of the Supreme Court of India before whom these appeals and writ petitions are listed. This Constitution Bench, after hearing learned counsel for the parties, passed an order on 8 March 2021 issuing notice to all the States. The Bench further directed the States to file brief notes of their submissions., The hearing commenced on 15 March 2021 and concluded on 26 March 2021. At this stage, the following heads of subjects have been used to comprehensively understand the issues, submissions, consideration, conclusion and operative part of the judgment: (1) Questions Framed, (2) Background Facts, (3) Points for Consideration before the High Court, (4) Submissions of the Parties, (5) The ten grounds urged for referring the Indra Sawhney judgment to a larger Bench, (6) The status of reservation at the time of enactment of the Act, 2018, (7) Consideration of the ten grounds urged for revisiting and referring the judgment of Indra Sawhney to a larger Bench, (8) Principle of Stare Decisis, (9) Whether the Gaikwad Commission Report has made out a case of extraordinary situation for grant of separate reservation to the Maratha community exceeding the 50 % limit, (10) Whether the Act, 2018 as amended in 2019 granting separate reservation for the Maratha community by exceeding the ceiling limit of 50 % makes out exceptional circumstances as per the judgment of Indra Sawhney, (11) Gaikwad Commission Report – a scrutiny, (12) Whether the data of Marathas in public employment as found out by the Gaikwad Commission makes out cases for grant of reservation under Article 16(4) of the Constitution of India to the Maratha community, (13) Social and Educational Backwardness of the Maratha Community, (14) The Constitution (One Hundred and Second Amendment) Act, 2018, (15) Conclusions, (16) Order., On 8 March 2021 the six questions proposed to be considered were enumerated as follows: 1. Whether the judgment in Indra Sawhney v. Union of India [1992 Supp. (3) SCC 217] needs to be referred to a larger bench or re‑looked by a larger bench in the light of subsequent constitutional amendments, judgments and changed social dynamics of society? 2. Whether the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12 % and 13 % reservation for the Maratha community in addition to 50 % social reservation is covered by exceptional circumstances as contemplated by the Constitution Bench in Indra Sawhney’s case? 3. Whether the State Government, on the strength of the Maharashtra State Backward Commission Report chaired by M. C. Gaikwad, has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney? 4. Whether the Constitution (One Hundred and Second Amendment) deprives the State Legislature of its power to enact legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power? 5. Whether the State’s power to legislate in relation to any backward class under Articles 15(4) and 16(4) is abridged by Article 342(A) read with Article 366(26C) of the Constitution of India? 6. Whether Article 342A of the Constitution abrogates the State’s power to legislate or classify any backward class of citizens and thereby affects the federal structure of the Constitution of India?, We need to first notice certain background facts relevant for the present case and details of various writ petitions filed in the High Court of Bombay. The Maratha is a Hindu community which mainly resides in the State of Maharashtra. After the enforcement of the Constitution of India, the President of India, in exercise of power under Article 240, appointed a commission to investigate the conditions of all socially and educationally backward classes, known as the Kaka Kalelkar Commission, the first National Commission for Backward Classes. The Kaka Kalelkar Commission submitted its report on 30 March 1955 where it observed that in Maharashtra, besides the Brahmin, it was the Maratha who claimed to be the ruling community in the villages, and the Prabhu that dominated all other communities. Thus, the first Backward Classes Commission did not find the Maratha as a backward class community in the State of Bombay., On 1 November 1956, a bilingual State of Bombay under the State Re‑organisation Act was formed with the addition of eight districts of Vidarbha (Madhya Bharat) and five districts of Marathwada (Hyderabad State). On 14 August 1961, the Ministry of Home Affairs, while declining to act on the Kaka Kalelkar Commission Report, informed all the State Governments that they had discretion to choose their own criteria in defining backward classes and that it would be open for State Governments to draw their own list of Other Backward Classes. On 14 November 1961, acting on the directives of the Government of India, the Government of Maharashtra appointed the B. D. Deshmukh Committee for defining OBCs and for taking steps for their development. The B. D. Deshmukh Committee submitted its report on OBCs to the Government of Maharashtra on 11 January 1964. It did not find the Maratha as a backward class. On 13 August 1967, the State of Maharashtra issued a unified list of OBCs consisting of 180 castes for the entire State which did not include the Maratha; at serial No. 87, Kunbi was shown. The President of India on 31 December 1979 appointed the second National Backward Classes Commission, popularly known as the Mandal Commission. In the report of the Mandal Commission with regard to the State of Maharashtra, while distributing percentage of Indian population by castes and religious groups, it estimated Other Backward Classes as 43.70 % and placed the Marathas in the forward Hindu castes category with 2.21 % of the total population. Thus, the Maratha was included in the forward Hindu caste by the second National Backward Classes Commission., A request was received by the National Commission for Backward Classes for inclusion of the Maratha in the Central List of Backward Classes for Maharashtra along with Kunbi as a backward class of Maharashtra. The National Commission for Backward Classes conducted a public hearing at Mumbai and, after hearing government officials, the Chairman of the Maharashtra State Backward Classes Commission submitted a detailed report dated 25 February 1980 holding that the Maratha is not a socially and educationally backward class community but a socially advanced and prestigious community. The report concluded that the request for inclusion of the Maratha in the Central List of Backward Classes for Maharashtra, either jointly with Kunbi or as a separate entry, should be rejected., On 16 November 1992 a nine‑Judge Constitution Bench of the Supreme Court of India delivered a judgment in Indra Sawhney v. Union of India [1992 Supp. (3) SCC 217] (hereinafter referred to as Indra Sawhney’s case). Apart from laying down law pertaining to the principle of reservation under the Constitution, this Court also issued directions to the Government of India and each of the State Governments to constitute a permanent body for entertaining, examining and recommending upon requests for inclusion and complaints of over‑inclusion of Other Backward Classes of citizens., The Maharashtra State OBC Commission headed by Justice R. M. Bapat submitted a report on 25 July 2008 conclusively recording that the Maratha could not be included in the OBC list because it is a forward caste. The report noted that the resolution stating that it would not be appropriate from a social justice perspective to include the Maratha community in the ‘Other Backward Class’ category was passed with majority in the commission’s meeting convened in Pune on 25 July 2008. The opposite opinion was recorded separately., The Maharashtra State OBC Commission on 3 June 2013 rejected the request of the State Government to review the findings recorded by the State OBC Commission in its report dated 25 July 2008, holding the Maratha caste as a forward community. Despite the existence of the statutory State OBC Commission, the Government of Maharashtra appointed a special Committee headed by a sitting Minister, Shri Narayan Rane, to submit a report on the Maratha caste. On 26 February 2014 the Rane Committee submitted its report to the State and recommended that special reservation for the Maratha under Articles 15(4) and 16(4) of the Constitution of India be provided. On 9 July 2014 Maharashtra Ordinance No. XIII of 2014 was promulgated providing for 16 % reservation in favour of the Maratha caste. Writ Petition No. 2053 of 2014 (Sanjeet Shukla v. State of Maharashtra) and other writ petitions were filed challenging the two Ordinances promulgated on 9 July 2014 providing for reservation for seats for admissions in aided and non‑aided institutions of the State and appointment to posts in public service. The Government resolution dated 15 July 2014 specifying the Maratha community as socially and economically backward entitled to 16 % reservation was also challenged., The Division Bench of the High Court of Bombay, by an elaborate order considering the relevant materials including the reports of the National Backward Classes Commission and the State Backward Classes Commission, stayed the operation of Maharashtra Ordinance No. XIII of 2014 and the resolution dated 15 July 2014. However, it directed that any admission already granted in an educational institution on the basis of Ordinance No. XIII of 2014 shall not be disturbed and the students shall be allowed to complete their respective courses., Special Leave Petition (Civil) Nos. 34335 and 34336 were filed in this Court challenging the interim order dated 14 November 2014; these Special Leave Petitions were not entertained by this Court with a request to decide the writ petitions at an early date. The Maharashtra Legislature passed the Act, 2014 on 23 December 2014, which received the assent of the Governor on 9 January 2015 and was deemed to have come into force with effect from 9 July 2014. In Writ Petition (Civil) No. 3151 of 2014 and other connected matters, the Division Bench of the Bombay High Court passed an order on 7 April 2015 staying the implementation of the provisions of Act 1 of 2015 providing 16 % reservation to the Maratha. The interim order directed that appointments to the 16 % reservation for the Maratha under Act 1 of 2015 in advertisements already issued shall be made from open‑merit candidates till final disposal of the writ petition and that appointments shall be made subject to the outcome of the writ petition., On 30 June 2017 the State Government made a reference to the State Backward Classes Commission to submit a report on the facts and observations regarding the Maratha. On 2 November 2017 Justice M. G. Gaikwad was appointed as Chairman of the State Backward Classes Commission. On 14 August 2018 the National Commission for Backward Classes (Repeal) Act was passed repealing the National Commission for Backward Classes Act, 1993. On 15 August 2018 the Constitution (One Hundred and Second Amendment) Act, 2018 was brought into force adding Articles 338B, 342A and 366(26C) and amending Article 338(10). On 15 November 2018 the State Backward Classes Commission submitted its report on the social, educational and economic status of the Maratha. The Commission recommended declaring the Maratha caste as socially and economically backward with inadequate representation in services and opined that, looking at the exceptional circumstances, the Government may decide within constitutional provisions. The Government, after receipt of the report, enacted the Act, 2018 which was published on 30 November 2018 and came into force from that day. Public Interest Litigation No. 175 of 2018 (Dr. Jaishri Laxmanrao Patil v. The Chief Minister and Others) and other writ petitions were filed challenging the Act, 2018. The High Court, in the impugned judgment, noticed the pleadings in three writ petitions: PIL No. 175 of 2018 giving rise to Civil Appeal No. 3123 of 2020, Writ Petition (Legal Disability) No. 4100 of 2018 (Sanjeet Shukla v. State of Maharashtra) giving rise to Civil Appeal No. 3124 of 2020, and PIL No. 4128 of 2018 (Dr. Uday Govindraj Dhople & Others v. State of Maharashtra & Others) giving rise to Civil Appeal No. 3125 of 2020., Civil Appeal No. 3123 of 2020 (Dr. Jaishri Laxmanrao Patil v. The Chief Minister and Others) was filed against the judgment of the High Court in PIL No. 175 of 2018, questioning the 16 % separate reservation given to the Maratha under the Act, 2018. The petitioner pleaded that providing reservation to the Maratha community to the extent of 16 % amounts to a breach of Articles 14, 16 and 21 of the Constitution of India and bypasses the ceiling of reservation of 50 %. Referring to the judgment of this Court in Indra Sawhney’s case and the law laid down in Nagraj and Others v. Union of India & Others (2006) 8 SCC 212, it was pleaded that reservation beyond 50 % is not permissible. Various grounds were taken in the writ petition questioning the 16 % reservation for the Maratha. During the pendency of the writ petition, several applications for intervention and impleadment were filed seeking to justify the Act, 2018. The High Court allowed the applications for intervention and they were directed to be added as party respondents., Civil Appeal No. 3124 of 2020 (Sanjeet Shukla v. State of Maharashtra) arises out of the judgment in Writ Petition (Civil) No. 4100 of 2018. In that writ petition an extensive challenge was made to the Backward Classes Commission report which was the basis for the Act, 2018. The same petitioner had earlier filed Writ Petition (Civil) No. 3151 of 2014 challenging the Ordinance promulgated by the Government of Maharashtra in 2014. The petitioner also pleaded that the Act, 2014 was stayed by the High Court on 7 April 2015. It was pleaded that the Maratha community is a powerful community in the State of Maharashtra with proven dominance in government service, co‑operatives and sugar cooperatives, and that earlier National and State Backward Class Commission reports had rejected the inclusion of the Maratha in the OBC category. The petitioner also argued that the Act, 2018 was passed without complying with the requirements of the Constitution (One Hundred and Second Amendment) Act, 2018. The writ petition sought, inter alia, a writ of certiorari quashing the SEBC Act, 2018 and directions that no appointments, vacancies, advertisements, admissions or caste certificates should be made under the Act during the pendency of the petition., Civil Appeal No. 3125 of 2020 (Dr. Uday Govindraj Dhople & Others v. State of Maharashtra & Others) arises out of Writ Petition (Legal Disability) No. 4128 of 2018 filed by Dr. Udai Govindraj Dhople on behalf of similarly situated medical students adversely affected by the Act, 2018. The petitioners seek quashing of the Act, 2018 and, in the alternative, setting aside Sections 2(j), 3(2), 3(4), 4, 5, 9(2), 10 and 12 of the Act. They plead that the reservation system has become a tool of convenience for the Government and politicians for their vote bank, that the Maratha was never treated as a backward class community and earlier their claim was rejected, and that the enactment prejudices the chances of open candidates in education and service. They further contend that the Gaikwad Commission’s report is not based on fiscal data, that a community not found backward for the last 50 years is now declared backward without any change of circumstances, and that the enactment violates the basic structure and fundamental values of the Constitution embodied in Articles 14, 16 and 19., Civil Appeals Nos. 3133, 3134 and 3131 of 2020 have been filed by appellants who were not parties in PIL No. 175 of 2018, against the High Court judgment praying for permission to file Special Leave Petitions, which have already been granted. Civil Appeal No. 3129 arises out of Public Interest Litigation (Special Tribunal) No. 1949 of 2019 whereby the 16 % reservation to the Maratha under the Act, 2018 has been challenged. Writ Petition (Civil) No. 915 of 2020 has been filed under Article 32 of the Constitution of India praying that all admissions to post‑graduate medical and dental courses in the State of Maharashtra for the academic year 2020‑21 shall be made subject to the outcome of Special Leave Petition (Civil) No. 15735 of 2019 and connected petitions. Writ Petition (Civil) No. 504 of 2020, filed under Article 32, seeks a mandamus direction that the provisions of the Act, 2018 should not be made applicable to admissions to post‑graduate medical and dental courses for the academic year 2020‑21. Writ Petition (Civil) No. 914 of 2020, filed under Article 32, prays for a writ in the nature of certiorari holding the SEBC Act, 2018 unconstitutional and violative of Articles 14, 16 and 19 of the Constitution of India and that the Act should not be made available to the medical admission process for post‑graduate students for the academic year 2020‑21. Civil Appeal No. 3127 of 2020 arises out of Writ Petition (Civil) No. 4128 of 2018, the prayer of which has already been noticed by Civil Appeal No. 3125. Civil Appeal No. 3126 of 2020 has been filed against the impugned judgment of the High Court in Writ Petition (Civil) No. 3846 of 2019 (Mohammad Sayeed Noori Shafi Ahmed & Others v. State of Maharashtra & Others). The writ petitioners were challenging the Act, 2018 as well as the Maharashtra State Backward Class Commission Report on the social, educational and economic status of the Marathas and allied aspects, 2018. The question was also raised about the inaction of the State of Maharashtra in not acting upon the report of the Maharashtra State Minority Commission (2011) recommending special reservation to certain Muslim communities and the failure to introduce a bill providing for 5 % reservation to 52 Muslim communities in Maharashtra., Civil Appeal No. 3128 of 2020 arises out of Writ Petition (Civil) No. 4269 of 2018 (Vishnuji P. Mishra v. State of Maharashtra) wherein similar reliefs have been claimed as in PIL No. 175 of 2018. Writ Petition (Civil) No. 938 of 2018 has been filed under Article 32 of the Constitution of India challenging the validity of the Constitution (One Hundred and Second Amendment) Act, 2018. The writ petition notes that the issue regarding the Constitution (One Hundred and Second Amendment) Act, 2018 is pending in Special Leave Petition (Civil) No. 15737 of 2019 (Civil Appeal No. 3123 of 2020). The petitioner also claimed to have filed Inter‑Application No. 66438 of 2020 for impleadment in Special Leave Petition (Civil) No. 15737 of 2019. The petitioner submits that if the effect of the Constitution (One Hundred and Second Amendment) Act, 2019 is to take away the power of the State Legislature with respect to identification of OBC/SEBC, it is obvious that the Constitution (One Hundred and Second Amendment) Act, 2018 has taken away the legislative powers of the State Legislature with respect to certain areas of law‑making power. The petitioner further submits that the procedure prescribed by the proviso to clause (2) of Article 368 of the Constitution of India has not been followed since no ratification by the legislatures of not less than one‑half of the States by resolution was obtained. The writ petition seeks: (a) a declaration that the 102nd Amendment of the Constitution of India published in the Gazette of India on 11 August 2018 is unconstitutional for violating the proviso to clause (2) of Article 368 and for violating the rights guaranteed under Articles 14 and 21; (b) a writ of mandamus directing that the 102nd Amendment shall not be enforced as it is violative of Article 368, the basic structure of the Constitution, and Articles 14 and 21., In the writ petitions before the High Court of Bombay, the State of Maharashtra filed an affidavit in reply dated 16 January 2018 in Writ Petition No. 4100 of 2018 supporting the Act, 2018, which was extensively relied upon by the High Court in the impugned judgment. Affidavits were also filed by intervenors and were filed in support of Chamber Summons. After perusing the writ petitions, affidavits, applications filed by interveners, Chamber Summons and other materials, and after hearing counsel for the respective parties, the High Court broadly capitulated the following points for consideration: (a) Whether the impugned Act of 2018 is constitutionally invalid on account of lack of legislative competence, specifically: (i) The subsisting interim order passed by the Bombay High Court in Sanjeet Shukla v. State of Maharashtra (WP 3151/2014) granting a stay to a similar enactment and ordinance of the State, which is pending for adjudication before this Court; (ii) The 102nd Constitution Amendment, 2018 depriving the State Legislature of its power to enact legislation determining the socially and educationally backward class and conferring benefits on that class in exercise of its enabling power under Articles 15(4) and 16(4) of the Constitution; (iii) The limitation of 50 % set out by the Constitution Bench in Indra Sawhney, which does not permit reservation in excess of 50 %.
id_886	1	Whether the State has been able to establish the social and educational backwardness and inadequacy of representation of the Maratha community in public employment on the basis of the report of Maharashtra State Backward Classes Commission under the Chairmanship of Justice Gaikwad on the basis of quantifiable and contemporaneous data? Whether the State has established the scope of judicial review for interference in the findings, conclusions and recommendation of the Maharashtra State Backward Classes Commission? Whether the reservation carved out for the Maratha community by the State Government in the form of the impugned legislation satisfies the parameters of reasonable classification under Article 14 of the Constitution of India? Whether the ceiling of 50 percent laid down by the Hon'ble Apex Court in the case of Indra Sawhney versus Union of India is to be taken as a constitutional principle and deviation thereof violates the basic tenet of equality enshrined in the Constitution? Whether the State is able to justify the existence of exceptional circumstances or extraordinary situation to exceed the permissible limit of 50 percent within the scope of guiding principles laid down in Indra Sawhney? Whether, in the backdrop of the findings, conclusions and recommendations of the Maharashtra State Backward Classes Commission report, the State Government has justified the exercise of its enabling power under Article 15(4) and Article 16(4) of the Constitution of India., The Bombay High Court in paragraph 177 of the judgment has summarised its conclusion to the following effect: In the light of the discussion above, we summarize our conclusions to the points which we have formulated in the proemial of the judgment and deliberated in the judgment. We summarize our conclusions in the same sequence., We hold and declare that the State possesses the legislative competence to enact the Maharashtra State Reservation for Seats for Admission in Educational Institutions in the State and for appointments in the public services and posts under the State (for Socially and Educationally Backward Classes) SEBC Act, 2018 and the State's legislative competence is not in any way affected by the Constitution (One Hundred and Second Amendment) Act 2018 and the interim order passed by the Supreme Court of India in Writ Petition No. 3151 of 2014. Accordingly, we uphold the impugned enactment except to the extent of the quantum of reservation as set out in point no. 6. We conclude that the report of the Maharashtra State Backward Classes Commission under the Chairmanship of Justice Gaikwad is based on quantifiable and contemporaneous data and it has conclusively established the social, economic and educational backwardness of the Maratha community and it has also established the inadequacy of representation of the Maratha community in public employment and posts under the State. Accordingly, we uphold the Maharashtra State Backward Classes Commission report. We hold and declare that the classification of the Maratha class into Socially and Educationally Backward Class complies with the twin test of reasonable classification permissible under Article 14 of the Constitution of India, namely, intelligible differentia and rational nexus to the object sought to be achieved. We hold and declare that the limit of reservation should not exceed 50 percent; however, in exceptional circumstances and extraordinary situations, this limit can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, inadequacy of representation and without affecting the efficiency in administration. We hold and declare that the report of the Gaikwad Commission has set out the exceptional circumstances and extraordinary situations justifying crossing of the limit of 50 percent reservation as set out in Indra Sawhney's case. We hold and declare that the State Government, in exercise of its enabling power under Articles 15(4) and 16(4) of the Constitution of India, is justified, in the backdrop of the report of the Maharashtra State Backward Classes Commission, in making provision for separate reservation to the Maratha community. However, we hold that the quantum of reservation set out by the Maharashtra State Reservation for Seats for Admission in Educational Institutions in the State and for appointments in the public services and posts under the State (for Socially and Educationally Backward Classes) SEBC Act, 2018, in section 4(1)(a) and 4(1)(b) as 16 percent is not justifiable and, consequently, we quash and set aside the quantum of reservation under the said provisions over and above 12 percent and 13 percent respectively as recommended by the Commission., In view of the conclusions, the Bombay High Court passed the following order in the batch of writ petitions:, Section A: In the light of the summary of conclusions above, we dispose of the following writ petitions and Public Interest Litigations by upholding the impugned Act of 2018 except to the extent of the quantum of reservation prescribed by section 4(1)(a) and 4(1)(b) of the said Act: Public Interest Litigation No. 175 of 2018; Writ Petition (stamp No.) 2126 of 2019; Writ Petition (stamp No.) 2668 of 2019; Writ Petition (stamp No.) 3846 of 2019; Public Interest Litigation No. 140 of 2014; Writ Petition (lodgment No.) 4100 of 2018; Writ Petition (lodgment No.) 4128 of 2018; Writ Petition (lodgment No.) 4269 of 2018; Public Interest Litigation No. 6 of 2019; Writ Petition (lodgment No.) 969 of 2019., Section B: The following writ petitions and Public Interest Litigations seeking implementation of the impugned Act of 2018 are also disposed of in view of the impugned Act being upheld except to the extent of the quantum of reservation prescribed by section 4(1)(a) and 4(1)(b): Public Interest Litigation No. 19 of 2019 – the petition is allowed in terms of the prayer clause; Public Interest Litigation No. 181 of 2018 – the petition is allowed in terms of prayer clause (a). As far as prayer clause (b) is concerned, we grant liberty to the petitioner to file a fresh petition in case the cause of action survives., Section C: The following writ petitions are rendered infructuous on account of the passing of the SEBC Act of 2018 which has repealed the earlier ESBC Act of 2015: Writ Petition (stamp No.) 10755 of; Public Interest Litigation No. 105 of 2015; Public Interest Litigation No. 126 of 2019; Public Interest Litigation No. 149 of 2014; Public Interest Litigation No. 185 of 2014; Public Interest Litigation No. 201 of 2014; Writ Petition No. 3151 of 2014., Section D: The following writ petitions are detached from the present group of petitions as they claim reservation for the Muslim communities: Writ Petition No. 937 of 2017; Writ Petition No. 1208 of 2019; Public Interest Litigation No. 209 of 2014; Public Interest Litigation (stamp No.) 1914 of 2019., Section E: Writ Petition No. 11368 of 2016 – the petition is dismissed as far as prayer clause (A) is concerned. As far as prayer clause (B) is concerned, the petitioner is at liberty to file an appropriate writ petition seeking the relief., Section F: Public Interest Litigation (stamp No.) 36115 of 2018 – the petition is disposed of since the recommendations of the commission are implemented in the form of the impugned SEBC Act, 2018., Section G: In the light of disposal of the above writ petitions and Public Interest Litigations, all pending civil applications, notices of motions, and Chamber Summons taken out in these writ petitions and Public Interest Litigations do not survive and are accordingly disposed of., Aggrieved with the impugned judgment of the Bombay High Court dated 27 June 2019, the appellants have filed the Civil Appeals noted above in this Court., We have heard Shri Arvind P. Datar, learned senior counsel; Shri Shyam Divan, learned senior counsel; Shri Gopal Sankaranarayanan, learned senior counsel; Shri Pradeep Sancheti, learned senior counsel; Dr. Rajiv Dhawan, learned senior counsel; Shri Sidharth Bhatnagar, learned senior counsel; Shri B. H. Marlapalle, learned senior counsel; Shri R. K. Deshpande, learned counsel; Dr. Gunratan Sadavarte, learned senior counsel; Shri Amit Anand Tiwari, learned counsel; and Shri S. B. Talekar, learned counsel for the appellants. Shri Amol B. Karande, learned counsel, has been heard in support of Writ Petition No. 938 of 2020., We have heard Shri K. K. Venugopal, Attorney General for India; Shri Tushar Mehta, Solicitor General; Shri Mukul Rohatgi, learned senior counsel, who has appeared for the States of Maharashtra and Chhattisgarh; Shri Shekhar Naphade, learned senior counsel, and Shri P. S. Patwalia, learned senior counsel, have also appeared for the State of Maharashtra; Shri Kapil Sibal, learned senior counsel, has appeared for the State of Jharkhand; Dr. Abhishek Manu Singhvi, learned senior counsel, has also appeared for Respondent No. 3 in Civil Appeal No. 3123 of 2020., We have also heard several learned counsel appearing for different States: Shri Manish Kumar, learned counsel, for the State of Bihar; Shri Karan Bharihok, for the State of Punjab; Dr. Manish Singhvi, learned senior counsel, for the State of Rajasthan; Shri C. U. Singh, learned senior counsel, for the respondents; Shri Sudhanshu S. Choudhari, learned counsel, for some of the respondents; Shri V. Shekhar, learned senior counsel, for the State of Maharashtra; Shri S. Niranjan Reddy, learned senior counsel, for the State of Andhra Pradesh; Shri Shekhar Nephade, learned senior counsel, and Shri Jayanth Muth Raj, learned senior counsel, for the State of Tamil Nadu; Shri Jaideep Gupta, learned senior counsel, for the State of Karnataka; Shri Vinay Arora, learned counsel, for the State of Uttarakhand; Shri Arun Bhardwaj, learned counsel, for the State of Haryana; Shri Amit Kumar, learned counsel, for the State of Meghalaya; Shri Pradeep Misra, learned counsel, for the State of Uttar Pradesh; and Shri Tapesh Kumar Singh, learned counsel, for the Madhya Pradesh Public Service Commission. Ms. Diksha Rai, learned counsel, has appeared for the State of Assam., We have also heard Mrs. Mahalakshmi Pavani, learned senior counsel; Shri A. P. Singh, learned counsel; Mr. Shriram Pingle, learned counsel; Shri V. K. Biju, learned counsel; Shri Hrishikesh S. Chitaley, learned counsel; Shri Kaleeswaram Raj, learned counsel; and Shri Ashok Arora for intervenors. Mr. Akash Avinash Kakade has also appeared for the interveners., Learned counsel for the parties have made elaborate submissions on the six questions as noted above. They have also made their respective submissions on the points for consideration as formulated by the Bombay High Court in the impugned judgment. The elaborate submissions have also been made by the petitioners challenging the various provisions of the Act, 2018. Learned counsel appearing for the petitioners have made a scratching attack on the Gaikwad Commission's report; various data and details have been referred to by the petitioners to support their submissions that the Maratha community is not a socially and educationally backward class., We shall now proceed to notice the submission advanced by learned counsel including submissions of the Attorney General for India in seriatim., Shri Arvind Datar, learned senior counsel, led the arguments on behalf of the appellant. Shri Datar submits that there is no need to refer the judgment of the Constitution Bench of this Court in Indra Sawhney to an eleven‑Judge Bench. Reference to a larger Bench can be made only for compelling reasons. No judgment of this Court has doubted the correctness of the nine‑Judge Constitution Bench judgment in Indra Sawhney's case. On the other hand, the 50 percent limit for reservation has been reiterated at least by four Constitution Bench judgments of this Court rendered after the judgment in Indra Sawhney's case. All the High Courts have uniformly accepted the limit of 50 percent reservation. In some States where, for political reasons, the 50 percent limit had been breached, it was struck down repeatedly. The limit of 50 percent reservation laid down by the Constitution Bench of this Court in Indra Sawhney is now an integral part of the trinity of Articles 14, 15 and 16 of the Constitution of India. Any legislative or executive legislation against it is void and must be struck down. Shri Datar has specifically referred to the Constitution Bench judgment of this Court in M. Nagaraj versus Union of India, (2006) 8 Supreme Court Cases 212, in which the Constitution Bench laid down that the State cannot obliterate the constitutional requirement of the ceiling limit of 50 percent. It was held that if the ceiling limit of 50 percent is breached, the structure of equality in Article 16 would collapse., It was further held that even if the State has a compelling reason, the State must ensure that its reservation provision does not lead to excessiveness so as to breach the limit of 50 percent. The request to refer the judgment of Nagaraj has been refused by the subsequent Constitution Bench judgment of this Court in Jarnail Singh and others versus Lachhmi Narain Gupta and others, 2018 (10) Supreme Court Cases 396. The parameters, when this Court revisits its judgments, have been clearly laid down, and the present case does not fall within them. The judgment delivered by the nine‑Judge Bench needs to be followed under the principle of stare decisis. Moreover, for more than 28 years no judgment of this Court has expressed any doubt about the law laid down in Indra Sawhney's case. A very high threshold is required when reference is to be made to an eleven‑Judge Bench. In law, certainty, consistency and continuity are highly desirable. The Parliament has not touched the 50 percent limit laid down under Articles 15(4) and 16(4) of the Constitution for the last several decades., The impugned judgment of the Bombay High Court is liable to be set aside as it is contrary to the clear principle laid down in Indra Sawhney's case. The High Court has not given any reason as to how extraordinary situations as mentioned in paragraph 810 of Indra Sawhney's case are made out in the context of reservation for the Maratha caste/community in Maharashtra. Exception and certain extraordinary situations to the 50 percent principle carved out in Indra Sawhney do not cover the case of Maratha since such rule is confined to far‑flung and remote areas, where they are out of the mainstream of national life. Indra Sawhney has also mandated extreme caution for going beyond 50 percent. The reservation limit of 50 percent has also been applied in decisions rendered in the context of Articles 243D and 243T of the Constitution of India relating to Panchayats and Municipalities. The earlier reports of the National Commission for Backward Classes have rejected the claim of the Maratha community to be included in the backward class. The opinion of the National Commission for Backward Classes cannot be disregarded by the State, and in the event it had any grievance, a remedy of review was provided., The Maratha community has been found to be a socially advanced and prestigious caste. It is submitted that the limit of 50 percent is an essential right on the part of equality which is part of the basic structure. Even members of Scheduled Tribes and Other Backward Classes who qualify on merit can continue to enjoy the benefit of the merit quota. The limit of 50 percent as laid down in Indra Sawhney can be altered only by a Parliamentary amendment. Whenever Parliament wanted to exceed the 50 percent ceiling limit laid down by Indra Sawhney, constitutional amendments were brought, namely, the Constitution (Seventy‑seventh Amendment) and the Constitution (Eighty‑first Amendment)., Shri Datar has referred to various paragraphs of the judgment of this Court in Indra Sawhney. In support of his submission that the majority has laid down an upper ceiling of 50 percent for providing reservation under Articles 15(4) and 16(4), Shri Datar submits that the judgment of Indra Sawhney cannot be confined only to Article 16(4) but the law was laid down taking into consideration Article 15(4) and Article 16(4)., Shri Shyam Divan, learned senior counsel for the appellant, submits that the social and financial status of the Maratha community has been examined by successive commissions or committees up to June 2013 and each of the commissions and committees did not recognise members of the Maratha community as deserving reservation as a backward class. Shri Divan has referred to the Kalelkar Commission Report (1955), the Mandal Commission Report (1980) and the National Backward Class Commission Report (2000). He has also referred to the Deshmukh Committee report, which did not include the Maratha community in the list of backward communities. Reference has also been made to the Khatri Commission (1995) and the Bapat Commission (2008)., It is submitted that when the Maharashtra State Commission for Backward Classes declined to reconsider the matter of reservation for Marathas, the State Government appointed the Narayan Rane Committee, whose report in 2014 stated that although the Maratha community may not be socially backward, it recommended a new Socially and Economically Backward Class. Shri Divan has submitted that the Gaikwad Commission, which submitted its report on 15 November 2018 concluding that the Maratha community in Maharashtra are socially, educationally and economically backward and are eligible to be included in the backward class category, is completely flawed. It was not open for the Gaikwad Commission to ignore the determination by the National Commission and State Committees/Commissions up to June 2013 holding that Marathas are a forward class in the State of Maharashtra. The report failed to recognize the consequences of the Maratha community being politically organised and being the dominant political class in Maharashtra for several decades. Politically organised classes that dominate government are not backward in any constitutional sense., Coming to the Constitution (One Hundred and Second Amendment), 2018, Shri Divan submits that the One Hundred and Second Constitution Amendment now contemplates identification by the National Commission of Backward Classes. The constitutional scheme delineated by Articles 341 and 342 has also been borrowed in Article 342A. The identification of backward classes is now centralized. Shri Divan has also highlighted the adverse impact of the impugned Act on medical admission in the State of Maharashtra., The law laid down by the Constitution Bench in Indra Sawhney's case that reservation under Articles 15(4) and 16(4) should not exceed the upper limit of 50 percent has been followed and reiterated by several judgments of this Court, including Constitution Bench judgments. The Gaikwad Commission report and the reasons given by the report do not make out any case for exception regarding the Maratha community to fall in extraordinary circumstances as contemplated in paragraph 810 of the judgment in Indra Sawhney's case., Shri Gopal Sankaranarayanan, learned senior counsel, has made a submission on the Constitution (One Hundred and Second Amendment), 2018. He submits that after the Constitution (One Hundred and Second Amendment), 2018, the State legislature could not have passed the 2018 Act. Article 338B and Article 342A introduced by the amendment mark a change in the entire regime regarding identification of backward classes. The power of the National Commission of Backward Classes under Article 338B, sub‑clause (5), includes the power to make reports and recommendations on measures that should be taken by the Union or any State. The National Commission for Backward Classes is also required to be consulted both by the Union and the State. Article 366(26) states that the phrase 'Socially, Educationally and Backward Classes' means such backward classes as are deemed under Article 342A, for the purposes of this Constitution, which provision does not permit the phrase to have any other meaning. The purposes of this Constitution, as occurring in Article 366(26C), shall also apply to Article 16(4). After the Constitution (One Hundred and Second Amendment), the States have no power to identify socially, educationally and backward classes. The State Governments are still free to decide the nature or extent of provision that may be made in favour of socially and educationally backward classes identified in accordance with Article 342A. When the power to determine Scheduled Castes and Scheduled Tribes has always been centralized, it is absurd to suggest that allowing the same procedure for identification of socially, educationally and backward classes shall violate federalism., Shri Gopal Sankaranarayanan further submitted that reliance on the Select Committee Report of the Rajya Sabha is unwarranted. In the Select Committee Report submitted in July 2018, there were several dissents, since many members of the Select Committee understood that the Constitution (One Hundred and Second Amendment) would take away the power of the State to prepare its own list of socially, educationally and backward classes. Article 342A has been introduced in the Constitution to achieve uniformity and certainty and not due to any political reasons. There is no ambiguity in Article 342A that requires any external aid for interpretation., Shri Sidharth Bhatnagar, learned counsel appearing for the appellant, also adopts the submissions of Shri Datar and Shri Sankaranarayanan and submits that the judgment of this Court in M. R. Balaji versus State of Mysore, AIR 1963 Supreme Court 649, laid down that reservation under Article 15(4) shall be less than 50 percent, a principle that finds its approval in Indira Sawhney's case. In Indira Sawhney's case, eight out of nine judges took the view that reservation cannot exceed 50 percent. He submits that the judgment of Indira Sawhney need not be referred to a larger Bench., Mr. Pradeep Sancheti, learned senior advocate, has confined his submissions to the Gaikwad Commission report. He submits that a difference of opinion with the Commission does not mean that the opinion formed is beyond judicial scrutiny. He submits that backwardness must be based on objective factors where inadequacy must factually exist. The Court, while exercising the power of judicial review, has to consider the substance of the matter and not its form, appearance or veil; the executive action must be carefully scrutinised and, if it appears that constitutional power has been transgressed, the impugned action has to be struck down., Shri Sancheti submitted that three National Backward Class Commissions and three State Backward Class Commissions did not include the Maratha community as a backward community, findings that could not have been ignored by the Gaikwad Commission constituted in 2017. The Gaikwad Commission's survey, data results and analysis suffer from various inherent flaws. The sample survey conducted by the Commission is skewed, unscientific and cannot be taken as a representative sample. The sample size is very small: out of 43,629 persons surveyed, only 950 persons were from the urban area. Mumbai was excluded from the survey. The sample size of the total population was well below 0.02 percent. The Commission assumes that the Marathas form 30 percent of the State's population. Without any quantifiable data, the Commission selected certain parameters while conveniently leaving out many parameters where the Maratha community is better off. The Commission has not provided a comparable State average for at least 28 of the parameters used in the study. When the State average is not on record, treating those parameters as indicators of backwardness is wholly unfounded. The Bombay High Court in the impugned judgment has also not addressed the submissions regarding the serious flaws committed by the Commission., The marking system adopted by the Commission was not rational; the composition of the Commission and experts was loaded in favour of the Maratha community since the majority of the members of the Commission were Marathas. It is submitted that Marathas are the most dominant community not only in politics but also in other fields such as educational institutions, sugar factories, agriculture, etc., which are relevant criteria for identifying backwardness of a community. The sample size was so small that no quantifiable data could have been found., Referring to Chapter 10 of the Commission's report, Shri Sancheti submits that no extraordinary situation as contemplated in paragraph 810 of the judgment in Indira Sawhney's case could be made out, even if all the findings given by the Commission are accepted as true. The Commission relied on outdated data for holding that Marathas were Shudras. When an unscientific survey is done, an unrealistic result is bound to occur. There has been adequate representation of the Maratha community in the public services. The Commission erred in holding that the representation is not proportionate and recommended reservation under Article 16(4). The Commission has not even addressed the requirement regarding efficiency as contemplated under Article 335 of the Constitution of India., Shri Sancheti submits that more than 40 percent of Members of Parliament and 50 percent of Members of the Legislative Assembly are Marathas. He submits that the Commission's report is only paperwork which cannot be accepted by the Court, while the Act, 2018, purports to create reservation for socially and economically backward classes but in effect the enactment is reservation for only Marathas, which is not sustainable., Shri Sancheti further submits that the data regarding representation in jobs of the Maratha community itself make it clear that the Maratha community is adequately represented in public services and there is no constitutional requirement for providing reservation under Article 16(4). He submits that the Commission gave undue importance to the suicide of Maratha farmers. He submits that, from the data given in the report, the proportion of suicide of Marathas comes to 23.56 percent, which is even less than the claimed 30 percent. The Bombay High Court, by wrong appreciation of facts, concluded that 80.28 percent of those who committed suicide were Marathas. There is no basis to attribute farmer suicide to Maratha backwardness. Shri Sancheti submits that undue weightage has been given to the percentage of Marathas in the Dubbeywala class, which cannot be a relevant consideration., Dr. Rajeev Dhavan, appearing on behalf of the appellant, submits that no case has been made out to review or refer the judgment of this Court in Indira Sawhney's case, which is based on principles of equality and reasonableness. Dr. Dhavan submits that, in fact, Indira Sawhney should be strengthened to make the 50 percent limit strict, subject to dire restrictions and stronger judicial review. He argues that Indira Sawhney should be treated as a comprehensive decision on various aspects of reservation as a whole and that the attempt of the respondents to distinguish Indira Sawhney on the basis that it was a decision only on Article 16(4) is spurious., Dr. Dhavan, however, submits that in the judgment of Indira Sawhney, a weak test for judicial scrutiny in matters within the subjective satisfaction of the scrutiny was laid down, i.e., the test laid down by this Court in Barium Chemicals Ltd. and Another versus The Company Law Board and Others, AIR 1967 Supreme Court 295. Dr. Dhavan submits that there ought to be a strict scrutiny test and this Court may tweak this aspect of Indira Sawhney so that the strict scrutiny test applies. The 50 percent test, as articulated in Indira Sawhney, is based on the principle of giving everyone a fair chance. The 50 percent ceiling is based on the principle of equality to prevent reverse discrimination, which is as much a principle that the Constitution records to equality as anything else. The direction of Indira Sawhney that the list of Other Backward Classes be reviewed periodically is not being followed. Dr. Dhavan, however, submits that the entire power of reservation has not been taken away from the State., Elaborating his submissions on the Constitution (One Hundred and Second Amendment) Act, 2018, Dr. Dhavan submits that the essence of the One Hundred and Second Amendment, as exemplified in Article 342A, results in the monopoly of identification even though implementation is left to the State. He submits that this is contrary to the basic structure of federalism of the Constitution, as it deprives the States of the crucial power of identification, which was an important power of the State under Articles 15, 16 and 46. The obligations of the State under Articles 15, 16 and 46 continue to be comprehensive., Alternate submissions advanced by Dr. Dhavan are that Article 342A can be read down to describe the power of the Centre in relation to the Central Services while leaving the identification and implementation power of the States intact. Dr. Dhavan, however, submits that the Maharashtra legislature had the competence to enact the 2018 Act, even though the Constitution (One Hundred and Second Amendment) had come by that time. He further submits that any legislation which is enacted will still be subject to Indira Sawhney and Nagaraj principles., Dr. Dhavan submits that various reports of Maharashtra in fact found that it is not necessary to include the Maratha community despite their persistent efforts. He submits that the test to be applied is what has happened since the last report negating inclusion of the Maratha that now requires a change to include them. He submits that the logic of the principle is that if the Marathas were not backward for over seventy years, how have they suddenly become backward now. Dr. Dhavan reiterates his submission that there is no judgment which has questioned Indira Sawhney's case. He submits that reservation under political pressure or social pressure need not be taken. A political obligation to the electorate is not a constitutional obligation. He further submits that the object of Article 16(4) is empowerment, i.e., sharing of State power. He submits that Marathas are not deprived of sharing power; hence, no case is made out for granting reservation under Article 16(4)., Shri B. H. Marlapalle, learned senior counsel, has also submitted that the doctrine of extraordinary circumstances cannot be applied to a dominant class of society. He submits that the representation of Marathas in the Legislative Assembly of the State is more than 50 percent and in the Cabinet of the State they are more than 50 percent. After the Constitution, Marathas were never regarded as an Other Backward Community. Three Central Commissions and three State Commissions have rejected the claim of the Marathas to be backward., Shri S. B. Talekar, appearing in Civil Appeal No. 3126 of 2020, has submitted that Writ Petition No. 3846 of 2019 was filed by Mohd. Saeed Noori and others, claiming reservation for Muslims. The Bombay High Court, although noting the submissions, made no consideration. Learned counsel contended that the State has no legislative competence to enact the 2018 Act. He submits that the power to legislate on the subject has been taken away by virtue of the One Hundred and Second Constitutional Amendment by adding Article 342A to the Constitution of India. He also questioned the composition of the Gaikwad Commission.
id_886	2	Shri R.K. Deshpande, appearing for the appellant, has also contended that by Article 342A, a separate mechanism has been introduced for the purpose of identification of backward class. He submits that there cannot be any State list of Socially and Educationally Backward Class after the 102nd Constitutional Amendment. He submits that identification of the caste was never the exclusive domain of the States., Shri Amit Anand Tiwari, appearing in Writ Petition No. 504 of 2020, referring to the Order dated 09 September 2020, contends that the three‑judge bench having refused the prayer to refer the Indra Sawhney judgment to a larger bench, the said prayer needs no further consideration. Shri Tiwari submits that the present case is not covered by any exceptional circumstances as mentioned in the Indra Sawhney judgment. Historically, Marathas have been treated as a forward class who are socially, economically and politically well‑off. Prior to the report of the Gaikwad Commission, as many as six commissions have held that Marathas are not entitled to be treated as a backward class. There has been no change in the circumstances to include the Maratha community in the list of backward classes. With respect to the 102nd Constitutional Amendment, Shri Tiwari submits that now States are not empowered to notify a class of persons as socially and educationally backward for the purposes of the Constitution. However, the State's power to confer benefits on an already identified class of persons as Socially and Educationally Backward Class, as identified under Article 342A, remains intact. The Bombay High Court committed an error in holding that States still have power to identify a class as SEBC. The Bombay High Court erred in not appreciating the import of Article 366(26C)., We may also notice the submission of the writ petitioner in Writ Petition (Civil) No. 938 of 2020, challenging the 102nd Constitutional Amendment Act., Shri Amol B. Karande, learned counsel for the petitioner, submits that if Article 342A read with Article 366(26C) of the Constitution of India takes away the power of the State to identify a backward class, the said constitutional amendment shall be violative of the basic feature of the Constitution, namely federalism., He further submits that by the constitutional amendment, the power of the State to legislate under various entries in List II and List III has been taken away; hence, it was obligatory to follow the procedure prescribed in the proviso to Article 368(2) of the Constitution of India, which having not been done, the constitutional amendment is not valid., Learned counsel submits that Article 366(26C) requires certain clarification since there is no clarity regarding the Central List and the State List. He submits that States shall still have power to legislate on the identification of the backward class., Learned Attorney General Shri K. K. Venugopal has made submissions on the 102nd Constitutional Amendment. Shri Venugopal confines his arguments to the 102nd Constitutional Amendment only. Referring to Article 12 of the Constitution, the learned Attorney General submits that the definition of the State includes the Government and Parliament of India and the Government and Legislature of each State. Under Articles 15(4) and 16(4), the State has power to identify the socially and educationally backward class and take affirmative action in favour of such classes, a power that has been regularly exercised by the State., Learned Attorney General submits that the Constitution Bench in Indra Sawhney held that there ought to be a permanent body, in the nature of a commission or a tribunal, to which inclusion and non‑inclusion of groups, classes and sections in the list of Other Backward Classes can be made. The Constitution Bench directed both the Union Government and the State Government to constitute such a permanent mechanism in the nature of a commission., Learned Attorney General submits that it is inconceivable that no State shall have power to identify a backward class, the direction issued by the nine‑judge bench still continuing. He refers to the judgment delivered by Justice Jeevan Reddy for himself and three other judges and the judgment delivered by Justice Thommen and submits that the above directions were the directions of the majority. Learned Attorney General submits that no such amendment has been made by which the effect of Articles 15(4) and 16(4) have been impacted. He submits that the National Backward Class Commission Act, 1993 was passed in obedience of the direction of this Court in the Indra Sawhney case. He submits that Section 2(C) of the 1993 Act refers to a Central list. The Attorney General also refers to Maharashtra Act No. 34 of 2006, especially Sections 2(C), 2(E) and 9(1), which refer to the State List. He submits that Article 342A was to cover the Central list alone, the 1993 Act having been repealed on 14 August 2018. The Attorney General also refers to the Select Committee Report dated 17 July 2017, paragraphs 12, 18, 19 and 55, and submits that the Select Committee Report indicates that the intention of the constitutional amendment was not to take away the State’s power to identify the backward class, and that the Select Committee Report clearly indicates that the State’s commission shall continue to perform its duties., Learned Attorney General submits that the Central List as contemplated under Article 342A(2) relates to employment under the Union Government, public sector corporations and central institutions in States where the Central List was to be utilized. He submits that State Government identification of backward class/socially and educationally backward classes is not touched by Article 342A., Referring to Scheduled Castes and Scheduled Tribes, the learned Attorney General submits that the power was given to the President under the constitutional scheme and States had no concern at all with Scheduled Castes/Scheduled Tribes. He submits that Article 342A deals with the Central List for its own purpose whereas in every State there is a separate State list of Other Backward Classes. There was no attempt to modify Articles 15(4) and 16(4) by Parliament. Unless Articles 15(4) and 16(4) are amended, the State’s power cannot be touched., The Attorney General also referred to an affidavit filed on behalf of the Government of India in Writ Petition (Civil) No. 12 of 2021, Dinesh B. versus Union of India and others, in which the Union of India, with respect to the Constitution (One Hundred and Second Amendment) Act, 2018, pleaded that the power to identify and specify the socially and educationally backward class list lies with Parliament, only with reference to the Central List of socially and educationally backward class. It is further pleaded that the State Government may have its separate State list for socially and educationally backward class for the purposes of providing reservation to recruitment to State Government services or admission to State Government educational institutions. The learned Attorney General reiterates the above stand in respect of the Constitution (One Hundred and Second Amendment) Act, 2018., Referring to the Other Backward Class list with regard to the State of Punjab, the learned Attorney General submits that in the Central list there are 68 castes whereas in the State list there are 71 castes. He submits that the question of validity of the Constitution (One Hundred and Second Amendment) shall arise only when the State’s power is taken away. Replying to the submissions made by the learned counsel for the writ petitioner in Writ Petition No. 938 of 2020, the learned Attorney General submits that in the Constitution (One Hundred and Second Amendment) there was no applicability of the proviso to Article 368(2). He submits that insofar as legislation under List III is concerned, since Parliament by legislation can override the States, the constitutional amendment can very well take away that power., Referring to Entry number 41 of List II, the learned Attorney General submits that Entry 41 has no concern with identification of backward class. The Constitution (One Hundred and Second Amendment) does not amend the lists under Schedule VII; hence, there is no requirement of ratification by the States., Shri Mukul Rohtagi, learned senior counsel appearing for the State of Maharashtra, has led the arguments. Shri Rohtagi states that his submission shall be principally confined to Question No. 1., Shri Rohtagi submits that there are several reasons which require that the Constitution Bench judgment in Indra Sawhney be revisited, necessitating reference to the larger bench of eleven judges. During the course of his submission he handed over a chart giving the history of judgments on reservation. The chart makes reference to the relevant paragraphs of judgments of this Court in M. R. Balaji versus State of Mysore (Supra), T. Devadasan versus Union of India and another, AIR (1964) Supreme Court 179, State of Punjab versus Hiralal and others (1970) 3 Supreme Court 567; State of Kerala and others versus N. M. Thomas and others (1976) 2 Supreme Court 310; Akhil Bharatiya Soshit Karamchari Sangh (Railway) versus Union of India and others (1981) 1 Supreme Court 246; K. C. Vasant Kumar and another versus State of Karnataka (1985) Supplement (1) Supreme Court 714; T. M. A. Pai Foundation and others versus State of Karnataka and others (2002) 8 Supreme Court 481; M. Nagaraj and others versus Union of India and others (2006) 8 Supreme Court 212; S. V. Joshi versus State of Karnataka (2012) 7 Supreme Court 41; Union of India and others versus Rakesh Kumar and others (2010) 4 Supreme Court 50; K. Krishnamurthy and others versus Union of India and another (2010) 7 Supreme Court 202; Chebrolu Leela Prasad Rao versus State of Andhra Pradesh (2020) Supreme Court Online 383; Vikas Kishanrao Gawali versus State of Maharashtra (2021) Supreme Court Online 170 and the Constitution Bench judgment of this Court in Indra Sawhney. The chart also indicates the reasons why the Indra Sawhney judgment requires a review. The chart, in a comprehensive manner, discloses the law on reservation prior to Indra Sawhney and subsequent thereto., We may now notice the grounds which have been emphasized by Shri Mukul Rohtagi for referring the judgment of Indra Sawhney to a larger bench. The ten grounds urged are: (i) In the judgment of Indra Sawhney there is no unanimity, in view of different reasoning adopted in six separate judgments delivered in the case. The judgments fall into three groups: one containing the judgment of Justice Jeevan Reddy, which is for himself and three other judges, holding that while 50 percent is the rule, in certain extraordinary situations it can be breached; Justice Pandian and Justice Sawant have held that 50 percent can be breached, hence the majority opinion is that 50 percent can be breached; only Justice Thommen, Justice Kuldip Singh and Justice R. M. Sahai have held that 50 percent cannot be breached. He submits that the majority opinion in Indra Sawhney is being wrongly read as holding that 50 percent is the ceiling limit for reservation. (ii) Different judges from 1963 till date have spoken in different voices with regard to reservation under Articles 15(4) and 16(4), which is a good ground to refer the judgment to a larger bench. (iii) The Balaji case held that Article 15(4) is an exception to Article 15(1), a theory not accepted by this Court in N. M. Thomas as well as Indra Sawhney; the very basis of fixing the ceiling of 50 percent has gone. (iv) Neither Article 16(4) nor Article 15(4) contains any percentage. The Court cannot read a percentage of 50 percent for effecting reservation under Articles 15(4) and 16(4); providing a ceiling by number cuts down the constitutional provisions of Part III and Part IV. Indra Sawhney has restricted the sweep of Articles 15 and 16 of the Constitution. The constitutional provisions cannot be read down, a principle applicable only to statutes. (v) The judgment of Indra Sawhney is a judgment on Article 16(4) and not on Article 15(4); hence the ratio of the judgment cannot be applied with regard to Article 15(4). He submits that Indra Sawhney itself states that Articles 15(4) and 16(4) are distinct and different provisions. (vi) The judgment of Indra Sawhney does not consider the impact of Directive Principles of State Policy such as Article 39(b)(c) and Article 46 while interpreting Articles 14, 16(1) and 16(4). (vii) The 50 percent ceiling limit was followed by the Constitution Bench of this Court in St. Stephen’s College versus University of Delhi (1992) 1 Supreme Court 558, by upholding the procedure for admission of students in aided minority educational institutions; this ceiling limit was set aside by the eleven‑judge bench judgment in T. M. A. Pai Foundation (Supra). The eleven‑judge bench judgment indicates that the ceiling of 50 percent is no longer available to be relied on even for purposes of Articles 15 and 16. (viii) The Constitution 77th and 81st Amendment Acts inserting Articles 16(4)(A) and 16(4)(B) have the effect of undoing in part the judgment of Indra Sawhney and thus mandating a re‑look. (ix) The 103rd Constitutional Amendment, by which 10 percent reservation has been provided for Economically Weaker Sections in addition to reservation given under Articles 15(4) and 16(4), is a clear pointer of overruling the 50 percent ceiling for reservation under 15(4) and 16(4). (x) The extraordinary circumstances indicated in paragraph 810 of Indra Sawhney’s case are not exhaustive; far‑flung and remote areas mentioned therein are only illustrative. There may be other exceptions where states are entitled to exceed the 50 percent ceiling limit., Shri P. S. Patwalia, appearing for the State of Maharashtra, has advanced the submissions on the remaining questions. Shri Patwalia supports the report of the Gaikwad Commission. He submits that the Gaikwad Commission was appointed under the 2005 Act at the time when the challenge to the 2014 Act was pending in the Bombay High Court. He submits that there was no challenge to the constitution of the Gaikwad Commission before the High Court at any stage. He submits that if 30 percent Maratha are to be fit in 27 percent OBC reservation, we will be giving them a complete mirage. Shri Patwalia has taken us to the different chapters of the report and submits that the commission has mentioned procedure, investigations and evidence collected. He submits that quantifiable data was collected by the commission through experts and three agencies appointed by the commission. Experts were also engaged to marshal the data and submit their opinion. Chapter 10 of the report dealt with the exceptional circumstances regarding Marathas justifying exceeding the 50 percent ceiling limit for reservation. He submits that the commission has assessed the Maratha population as 30 percent., Shri Patwalia submits that the scope of judicial review of a commission’s report is very limited. This Supreme Court shall not enter into assessment of evidence to come to a different conclusion. He submits that the Gaikwad Commission report is a unanimous report. After the receipt of the report, the 2018 Act was passed unanimously by the Legislative Assembly. The subjective satisfaction of the State Government to declare a community as socially and educationally backward is not to be easily interfered with by the courts in exercise of judicial review jurisdiction., On the basis of the commission’s report, the State Government arrived at the satisfaction that Marathas are a socially and educationally backward class, a satisfaction that need not be tested in judicial review jurisdiction. Formation of the opinion by the State is purely a subjective process. This Supreme Court has laid down in several judgments that the commission’s report needs to be treated with deference. The Bombay High Court in the impugned judgment has elaborately considered the Gaikwad Commission’s report and the other material including the reservation which was granted to Other Backward Community in the year 1902 by Sahuji Maharaj. He submits that the High Court had considered the effect of reports given by earlier commissions in the impugned judgment and gave reasons why earlier reports cannot operate to the detriment of the Marathas., It is submitted that the method and manner of survey is to be decided by the commission. No contrary data of any expert or technical body has been placed before this Court by the appellants to conclude that the data considered by the commission was not relevant. The choice of parameters is essentially to be decided by the expert body appointed to determine backwardness. The statistics of population of the Maratha community are credible and rightly accepted by the commission., The commission had given a common questionnaire to maintain uniformity for social, economic and educational backwardness. The commission gave relevant parameters, considered the number of representations received and collected, and also considered the objection for inclusion of Maratha as a backward class in the Other Backward Classes category., Shri Patwalia, with respect to the 102nd Constitutional Amendment, states that he adopts the submissions of the learned Attorney General completely. He submits that Article 342A and the mechanism brought into force relate only to the Central list, which is for the purposes of appointment in posts under the Central Government or educational institutions under the control of the Central Government. Shri Patwalia further submits that the Select Committee report relied upon by the High Court is fully admissible for deciphering the history of legislation and the intention of Parliament. He further submits that today there is no Central list; hence there is no question of affecting the State list. He submits that it is premature to set aside the said action., Shri Shekhar Naphade, learned senior counsel appearing for the State of Maharashtra, has elaborately dealt with the judgment of this Court in M. R. Balaji (Supra). He submits that all subsequent judgments providing a ceiling of 50 percent are based on Balaji’s case and, being several flaws in the said judgment, the case needs to be referred to a larger bench. He submits that the 50 percent ceiling on reservation for Scheduled Caste, Scheduled Tribe and Other Backward Class is a judicial legislation which is impermissible. He further submits that reservation cannot exceed 50 percent is not the ratio of the judgment of Balaji. It is submitted that Balaji has not considered the effect of the non‑obstante clause contained in Article 15(4). Shri Naphade has also dealt with the judgments of this Court in T. Devadasan (Supra), N. M. Thomas (Supra) and Indra Sawhney., Shri Naphade, elaborating his submissions on Article 342A, submits that the State has legislative competence to prescribe reservation to backward class. He refers to Entry 25 of List III and Entry 41 of List II. He submits that a careful perusal of Article 342A indicates that the scheme of this article is substantially different from Articles 341 and 342. The difference in the language of clause (2) of Article 342A as compared to clause (2) of Articles 341 and 342 makes all the difference. The view canvassed by petitioners that the 102nd Constitutional Amendment takes away the legislative competence and legislative power of the States runs counter to the basic structure of the Constitution and the scheme of distribution of power between the State and Centre. It is a settled principle of interpretation that by construing any provision of an Act of Parliament or the Constitution, the legislative history of the relevant subject is necessary to be seen., Shri Kapil Sibal, senior advocate appearing for the State of Jharkhand, has advanced submissions on all aspects of the matters under consideration in the present batch of cases. He submits that how balance for Articles 14, 15 and 16 shall be maintained is a matter within the domain of the executive or State legislature. No court should fix the percentage for Articles 15 and 16. In Indra Sawhney’s case there was no data for imposing a ceiling of 50 percent. Justice Jeevan Reddy did not rely on the Mandal Commission’s report. Mr. Sibal submits that 50 percent was not an issue in Indra Sawhney. He submits that parameters for Article 15(4) and Article 16(4) are entirely different, where Article 15 is eligibility and Article 16 is ability to get a job. Apart from Balaji, all other judgments are on Article 16. He submits that Question VI framed in Indra Sawhney’s case could not have been answered without looking into the statistics. The concept of equality will differ from State to State. There cannot be a strait‑jacket formula. Why stop reservation at only 50 percent when the matter relates to affirmative action by the State which is felt required by the concerned State? Limiting access to education to 50 percent will cause more problems than it solves. It is the State which has to look at the relevant percentage to be followed in a particular case. In Indra Sawhney’s case the Court was dealing with an office memorandum issued by the Government of India where reservation was less than 50 percent. The observation regarding 50 percent is only obiter. By the judgment of this Court in N. M. Thomas, the basis of Balaji case that Article 15(4) is an exception to Article 15(1) has gone. The whole judgment could not be relied on as a precedent anymore. Whether a particular quota of reservation is violative of Article 15(1) depends on the facts of each case. The State ought to be given a free hand to pick the percentage as per need and requirement of each State. There is no judicial power to pick a percentage., Shri Sibal, giving an illustration of Kendriya Vidyalaya, submitted that general students cannot come and those institutions cater only to the employees of Government, Army; and the general can only come when the seats are vacant. He submits that the balance has to be done by the executive and not by the Court. These are the issues which need to be decided by a larger bench. These issues having never been addressed before this Court in Indra Sawhney’s case, the matter needs to be referred to a larger bench., The Constitution of India is a living, transformative document. The Court cannot shackle the legislature. Shri Sibal submits that the 50 percent limit for reservation prescribed in Indra Sawhney is no longer good law after the 103rd Constitutional Amendment, which inserted Articles 15(6) and 16(6) into the Constitution. Several States have already provided for reservation beyond 50 percent to Scheduled Caste, Scheduled Tribe and socially and educationally backward class. In the above circumstances, it is necessary that these matters may be referred to a larger bench for fresh adjudication., Shri Sibal on Article 342A submits that under Articles 15(4) and 16(4) the Union and the States have co‑equal powers to advance the interest of socially and educationally backward classes. Any exercise of power by the Union cannot encroach upon the power of the State to identify and empower the socially and educationally backward classes and determine the extent of reservation required. The expression ‘for the purposes of this Constitution’ can therefore only be construed within the contours of power that the Union is entitled to exercise with respect to entities, institutions, authorities and public sector enterprises under the aegis and control of the Union., The expression ‘Central List’ in Article 342A(2) relates to the notification under Article 342A(1), wherein the Central List will include identification of socially and educationally backward classes for the purposes of entities, institutions, authorities and public sector enterprises in a State, but under the aegis or control of the Union. Any other interpretation would allow an executive act to whittle down the legislative power of the States to provide for the advancement of the socially and educationally backward classes, under Articles 15(4), 15(5) as well as Article 16(4), which are an integral part of the chapter on fundamental rights., Article 342A and Articles 342A(1) and 342A(2) must be interpreted in the historical context and developments both pre‑ and post‑Indra Sawhney, where the identification of the socially and educationally backward classes in the State lists was the basis for determining the extent of reservations. In this regard, the use of the words ‘Central List’ is of significance, as opposed to Articles 341 and 342, which only use the expression ‘list’ in the context of identification of Scheduled Castes and Scheduled Tribes. Historically, Scheduled Castes and Tribes were identified by the Government of India and accepted by the States., Learned Solicitor General Shri Tushar Mehta submits that he adopts the submissions made by the learned Attorney General. He submits that the 102nd Constitutional Amendment shall not dilute the power of the State. Article 342A(1) is only an enabling provision. The 2018 Act does not violate the 102nd Constitutional Amendment., Dr. Abhishek Manu Singhvi, appearing for the respondent, submits that the State’s power was never intended to be taken away. He submits that material including discussion in reports of the Parliamentary Committee are fully admissible and have to be relied upon for finding the intent and purpose of a constitutional provision. Dr. Singhvi has elaborately taken us to the proceedings of the Select Committee and its report. He has cited the Constitution Bench judgment of this Court in Kalpana Mehta and others versus Union of India and others (2018) 7 Supreme Court 1. He has also referred to the statements of objects of the 123rd Bill which notice that there were State lists prior to Indra Sawhney. The Central list was confined to central institutions and central government posts. Shri Singhvi has also referred to the 1993 Act and submits that Section 2(C) of that Act referred to a list which was only a Central list. Article 342A(2) uses the same Central list and interpretation of Article 342A(2) has to be made taking the same meaning of Central list as was known and understood under the regime prior to the 102nd Constitutional Amendment Act. This Supreme Court shall not annotate the State’s power under some interpretive exercise. Dr. Singhvi further submits that today there is no Central list under Article 342A, there being no occupied field; it is premature and academic., Shri C. U. Singh, learned senior advocate appearing for respondents, has referred to the Gaikwad Commission’s report in detail. He has referred to data collected and reflected in the report and submits that the commission, on the basis of quantifiable data, has determined Maratha as a socially and educationally backward community. He has also referred to Chapter 10 of the report which carves out exceptional circumstances for exceeding the 50 percent limit. Shri C. U. Singh has taken the Court to various tables and charts regarding representation of the Maratha community in public services, universities and higher institutions. He submits that the representation in public services is not in accordance with the proportion of the Maratha population. He submits that backwardness has to come from living standard, job. The commission has found that Marathas are more in agriculture and agricultural labour. He submits that we need to take into consideration the overall situation., Learned counsel for the States of Bihar, Punjab, Rajasthan, Andhra Pradesh, Tamil Nadu, Kerala, Assam, Uttar Pradesh, Haryana have also advanced similar submissions as advanced by the State of Maharashtra that the 102nd Constitutional Amendment shall not take away the legislative or executive power of the State to identify OBC and to take measures for implementation of reservation. All State counsel submitted that there has always been two lists, i.e., Central List and State List. It is submitted that any other interpretation shall violate the federal structure as envisaged in the Constitution of India., Shri Amit Kumar, learned Advocate General, Meghalaya, submits that in the State of Meghalaya there is about 85.9 percent tribal population. He submits that reservation allowed in Meghalaya is in accord with paragraph 810 of the Indra Sawhney judgment., Shri Vinay Arora, learned counsel appearing for the State of Uttarakhand, submits that the State has two lists, one drawn by the State and another Central list. He adopts the arguments of the learned Attorney General. Shri Vinay Arora submits that the judgment of Indra Sawhney need not be referred to a larger bench. He submits that affirmative action under Articles 16(4) and 15(4) are facets of Article 14., We have also heard various counsel appearing for interveners. Most of the interveners have adopted the submissions of the State of Maharashtra. However, learned counsel Shri A. P. Singh and Shri B. B. Biju, appearing for different interveners, submit that the judgment of Indra Sawhney need not be referred to a larger bench. They submit that after seventy years there has been upliftment. The reservation is affecting merit as well as society., We have heard learned counsel for the parties and perused the records., All the relevant materials which were before the Bombay High Court have been compiled in different volumes and filed for convenience. Learned counsel for the parties during submissions have referred to various materials including necessary relevant enactments and reports. From various volumes a master index containing all details of volumes has also been prepared and submitted. Before we enter into submissions of the learned counsel for the parties on the six questions framed by us and the impugned judgment of the Bombay High Court, including points for consideration noted in the judgment of the High Court, we need to first look into the statutory provisions pertaining to reservation in force at the time when the 2018 Act was enacted., The State of Maharashtra issued a unified list of OBC consisting of 118 castes on 13 August 1967. On 10 September 1993, after the judgment of this Court in Indra Sawhney, the Central List of OBC was issued by the Ministry of Welfare, Government of India, notifying the Central List of OBC consisting of more than 200 castes. The Central List of OBC as on date contains about 252 OBC.
id_886	3	The Government of Maharashtra decision dated 07.12.1994 created a special backward category containing several castes and communities. The Maharashtra State Public Services Reservation for Scheduled Castes, Scheduled Tribes, De‑notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes Act, 2001 was enacted and published in the Maharashtra Government Gazette on 22.01.2004. Section 2(b) defines De‑notified Tribes, Section 2(f) defines Nomadic Tribes, Section 2(g) defines Other Backward Classes, Section 2(k) defines reservation and Section 2(m) defines Special Backward Category. The definitions are as follows: “De‑notified Tribes (Vimukta Jatis) means the tribes declared as such by the Government from time to time”; “Nomadic Tribes means the tribes wandering from place to place in search of their livelihood as declared by the Government from time to time”; “Other Backward Classes means any socially and educationally backward classes of citizens as declared by the Government and includes Other Backward Classes declared by the Government of India in relation to the State of Maharashtra”; “reservation means the reservation of posts in the services for the members of Scheduled Castes, Scheduled Tribes, De‑notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes”; “Special Backward Category means socially and educationally backward classes of citizens declared as a Special Backward Category by the Government”., Section 4 provides for reservation and percentage. Subject to other provisions of this Act, there shall be posts reserved for persons belonging to Scheduled Castes, Scheduled Tribes, De‑notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes at the stage of direct recruitment in public services and posts specified under clause (j) of section 2, as follows: Scheduled Castes – 13 per cent; Scheduled Tribes – 7 per cent; De‑notified Tribes (A) – 3 per cent; Nomadic Tribes (B) – 2.5 per cent; Nomadic Tribes (C) – 3.5 per cent; Nomadic Tribes (D) – 2 per cent; Special Backward Category – 2 per cent; Other Backward Classes – 19 per cent. The total reservation is 52 per cent., The Maharashtra State Commission for Backward Classes Act, 2005 was enacted by the State Legislature providing for the constitution of a State level Commission for Backward Classes other than Scheduled Castes and Scheduled Tribes and to provide for matters connected therewith or incidental thereto. Section 2(e) defines “Lists” as the lists prepared by the State Government from time to time for the purpose of making provision for reservation of appointments or posts in favour of backward classes of citizens who, in the opinion of the State Government, are not adequately represented in the services under the State Government and any local or other authority within the State or under the control of the State Government. Section 9 outlines the functions of the Commission, including entertaining and examining requests for inclusion of any class of citizens as a backward class in the Lists, hearing complaints of over‑inclusion or under‑inclusion, taking periodic review and making recommendations on criteria and methodology, conducting studies in collaboration with academic and research bodies, regularly reviewing socioeconomic progress, and performing such other functions as may be prescribed. The advice or recommendations of the Commission shall ordinarily be binding on the State Government, which must record reasons in writing if it totally or partially rejects or modifies the advice., The Maharashtra Private Professional Educational Institutions (Reservation of seats for admission for Scheduled Castes, Scheduled Tribes, De‑notified Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward Classes) Act, 2006 was enacted and published in the Maharashtra Gazette on 01.08.2006. Section 4 provides that in every aided private professional educational institution, seats equal to fifty per cent of the sanctioned intake of each professional course shall be reserved for candidates belonging to the Reserved Category. The reserved seats shall be filled by admitting candidates belonging to Scheduled Castes, Scheduled Tribes, De‑notified Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward Classes in the proportion specified: Scheduled Castes – 13 per cent; Scheduled Tribes – 7 per cent; De‑notified Tribes (A) – 3 per cent; Nomadic Tribes (B) – 2.5 per cent; Nomadic Tribes (C) – 3.5 per cent; Nomadic Tribes (D) – 2 per cent; Other Backward Classes – 19 per cent. The total reservation is fifty per cent., By Government Resolution dated 26.09.2008, the State of Maharashtra extended the list of Other Backward Classes to include 346 castes. The Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments or posts in the public services under the State) for Educationally and Socially Backward Category Act, 2014 was enacted by the State Legislature and received the assent of the Governor on 09.01.2015. In that Act the Maratha community was declared as Educationally and Socially Backward Category. The implementation of the Act was stayed by the High Court of Maharashtra by its order dated 07.04.2015 in Writ Petition No. 3151 of 2014, which remained in operation until the writ petition was dismissed as infructuous by the impugned judgment. From the Acts of 2001 and 2006 it is clear that the percentage of reservation in the State of Maharashtra in public services was fifty‑two per cent, whereas the percentage of reservation of seats for admission for Scheduled Castes, Scheduled Tribes, De‑notified Tribes and Nomadic Tribes and Other Backward Classes in private professional educational institutions was fifty per cent at the time of enactment of the Act of 2018., The Maharashtra State Reservation for Socially and Educationally Backward Classes of Citizens (SEBC) Act, 2018 (Act LXII of 2018) provides for reservation of seats for admission in educational institutions in the State and for reservation of posts for appointments in public services and posts under the State to Socially and Educationally Backward Classes of Citizens in the State of Maharashtra for their advancement and for matters connected therewith or incidental thereto. Section 2(1)(j) includes the Maratha community as a Socially and Educationally Backward Class. Section 3 states that the Act shall apply to all direct recruitments, appointments made in public services and posts in the State except super‑specialized posts in medical, technical and educational fields, posts filled by transfer or deputation, temporary appointments of less than forty‑five days, and posts that are single in any cadre or grade. The Act also applies to admission in educational institutions, including private institutions, whether aided or unaided by the State, other than minority educational institutions referred to in clause (1) of article 30 of the Constitution of India. The State Government shall incorporate a condition for compliance with the provisions of this Act in any agreement with an educational institution or establishment for the grant of aid. The Act expressly provides that nothing in it shall affect the reservation provided to Other Backward Classes under the Maharashtra State Public Services Reservation Act, 2001 and the Maharashtra Private Professional Educational Institutions Act, 2006., Section 4 provides that, notwithstanding any judgment, decree or order of any court or other authority, and subject to other provisions of this Act, sixteen per cent of the total seats in educational institutions, including private institutions other than minority institutions, and sixteen per cent of the total appointments in direct recruitment in public services and posts under the State shall be separately reserved for Socially and Educationally Backward Classes including the Maratha community. This reservation shall not apply to posts reserved for Scheduled Tribes candidates in the Scheduled Areas of the State under the Fifth Schedule as per the notification issued on 9 June 2014. The principle of Creamy Layer shall be applicable for the purposes of reservation to Socially and Educationally Backward Classes, and reservation shall be available only to persons who are below the Creamy Layer as declared by the Government in the Social Justice and Special Assistance Department., Several writ petitions filed before the High Court of Maharashtra challenged the 2018 Act as invalid and violative of the Constitution of India. Counsel Shri Mukul Rohtagi and Shri Kapil Sibal submitted that the judgment of Indra Sawhney should be revisited and referred to a larger bench of eleven judges. The first ground raised by Shri Rohtagi is that only three judges—Justice T. K. Thommen, Justice Kuldip Singh and Justice R. M. Sahai—held that the fifty per cent reservation ceiling cannot be breached, whereas six other judges held that the ceiling can be breached; therefore, the majority opinion in Indra Sawhney does not establish a fifty per cent limit. The method of extracting the majority opinion from a multi‑judge judgment was noted in the Constitution Bench decision of Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 569., In the judgment of Justice B. P. Jeevan Reddy, paragraphs 809 and 810 state that reservations contemplated under Article 16(4) should not exceed fifty per cent, but in extraordinary circumstances a relaxation of this rule may be imperative, provided extreme caution is exercised and a special case is made out. Justice S. Ratnavel Pandian, in paragraph 243(9), expressed disagreement with fixing a fifty per cent maximum ceiling, stating that no maximum ceiling can be fixed under Article 16(4) and that decisions fixing the percentage up to fifty per cent are unsustainable. Justice Thommen, Justice Kuldip Singh and Justice R. M. Sahai held that reservation in all cases must remain well below fifty per cent of the total posts or seats. Justice Kuldip Singh, in paragraph 384(i), reiterated that reservations under Article 16(4) must remain below fifty per cent and any reservation beyond that is constitutionally invalid. Justice R. M. Sahai, in paragraph 619(i), also held that reservation should in no case exceed fifty per cent., Justice P. B. Sawant delivered a concurring opinion. In paragraph 518 he observed that there is no legal infirmity in keeping reservations under clause (4) alone or together with clause (1) of Article 16 exceeding fifty per cent, but the validity of such excess would depend on the facts and circumstances of each case. He referred to Dr. B. R. Ambedkar’s speech of 30 November 1948, which stated that reservation under Article 16(4) shall be confined to a minority of seats. In paragraph 552, Justice Sawant answered that ordinarily reservations under Article 16(1) and 16(4) together should not exceed fifty per cent of appointments in a grade, cadre or service in any particular year, and only extraordinary reasons may justify exceeding that percentage, with each excess required to be justified on valid grounds., Applying the principle laid down in Rajnarain Singh, the greatest common measure of agreement among the six judgments in Indra Sawhney is that reservation under Article 16(4) should not exceed fifty per cent, and that exceeding this limit is permissible only in extraordinary circumstances as indicated in paragraph 810 of Justice Jeevan Reddy’s judgment. Consequently, the submission that the majority opinion allows breach of the fifty per cent ceiling cannot be accepted., The second ground raised by Shri Rohtagi is that different judges from 1993 to date have expressed varying views on reservation under Article 15(4) and Article 16(4), which, according to him, warrants referral of Indra Sawhney to a larger bench. The Constitution Bench in M. R. Balaji v. State of Mysore, AIR 1963 SC 649, held that a special provision under Article 15(4) should ordinarily be less than fifty per cent, with the exact figure depending on prevailing circumstances. Justice P. B. Gajendra Gadkar explained that reservation must be within reasonable limits and that reserving practically all seats would subvert the object of Article 15(4). The same principle was reiterated in General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36, where it was observed that excessive reservation under Article 16(4) would be a fraud on the Constitution., Subsequent Constitution Bench judgments, including T. Devadasan v. Union of India, AIR 1964 SC 179, examined the carry‑forward rule and affirmed that reservation should not exceed fifty per cent, although the ceiling is a rule of caution rather than an absolute limit. Justice Fazal Ali, in paragraph 191, noted that while the fifty per cent ceiling is a cautionary rule, it does not exhaust all categories and that the suitability of reservation must be assessed on facts and circumstances. Justice Krishna Iyer, in paragraph 143, agreed that the arithmetical limit of fifty per cent in any one year cannot be pressed too far and that overall representation depends on total cadre strength., In summary, the majority opinion in Indra Sawhney, as derived from the greatest common measure of agreement, is that reservation should normally not exceed fifty per cent, and any excess is permissible only in extraordinary circumstances with strict caution. Accordingly, there is no sufficient ground to revisit Indra Sawhney or to refer the matter to a larger bench on the grounds raised.
id_886	4	[(1962) 2 SCR 586] is a case in which reservation of vacancies to be filled by promotion was upheld by the Supreme Court of India. Justice Gajendragadkar, who delivered the majority judgment, observed: It is also true that the reservation which can be made under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers under Article 16(4) the problem of adequate representation of the backward class of citizens must be fairly and objectively considered and an attempt must always be made to strike a reasonable balance between the claims of backward classes and the claims of other employees as well as the important consideration of the efficiency of administration. It is clear from both these decisions that the problem of giving adequate representation to members of backward classes enjoined by Article 16(4) of the Constitution is not to be tackled by framing a general rule without bearing in mind its repercussions from year to year. What precise method should be adopted for this purpose is a matter for the Government to consider. It is enough for us to say that while any method can be evolved by the Government it must strike a reasonable balance between the claims of the backward classes and claims of other employees as pointed out in Balaji case [All India Reporter 1963 Supreme Court 649]., Justice Subba Rao expressed a dissenting opinion. He observed that what was held in M.R. Balaji cannot be applied in the case of reservation of appointment in the matter of recruitment. In the instant case, the State made a provision adopting the principle of carry forward. Instead of fixing a higher percentage in the second and third selections based upon the earlier results, it directed that the vacancies reserved in one selection for the said Castes and Tribes but not filled up by them but filled up by other candidates should be added to the quota fixed for the said Castes and Tribes in the next selection and likewise in the succeeding selection. As the posts reserved in the first year for the said Castes and Tribes were filled up by non-Scheduled Caste and non-Scheduled Tribe applicants, the result was that in the next selection the posts available to the latter were proportionately reduced. This provision certainly caused hardship to the individuals who applied for the second or the third selection, though the non-Scheduled Castes and non-Scheduled Tribes, taken as one unit, were benefited in the earlier selection(s). This injustice to individuals, which is inherent in any scheme of reservation, cannot, in my view, make the provision for reservation nonetheless a provision for reservation., In Akhil Bharatiya Sochit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association versus Union of India and others, (1981) 1 Supreme Court 246, Justice O. Chinnappa Reddy observed that there is no fixed ceiling to reservation or preferential treatment to the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of fifty per cent. He further stated: There is no rigidity about the fifty per cent rule which is only a convenient guideline laid down by judges., In K.C. Vasanth Kumar and another versus State of Karnataka, 1985 (Supplement) Supreme Court 714, Justice O. Chinnappa Reddy, after noticing the Balaji case, observed that the percentage of reservations is not a matter upon which a court may pronounce with no material at hand. He said: The Balaji case considered the question of the extent of the special provision which the State would be competent to make under Article 16. We should think that that is a matter for experts in management and administration. There might be posts or technical courses for which only the best can be admitted and others might be posts and technical courses for which a minimum qualification would also serve. For a court to say that reservations should not exceed forty per cent, fifty per cent or sixty per cent would be arbitrary and the Constitution does not permit us to be arbitrary. Though the Balaji case thought that generally and in a broad way a special provision should be less than fifty per cent, how much less would depend upon the prevailing circumstances in each case. The Court confessed that a reservation of sixty‑eight per cent was inconsistent with Article 15(4) of the Constitution. We are not prepared to read Balaji as arbitrarily laying down fifty per cent as the outer limit of reservation., In the same judgment, Justice E.S. Venkataramiah expressed a contrary opinion to that of Justice O. Chinnappa Reddy. He held that the fifty per cent rule has not been unsettled by the majority in N.M. Thomas. He stated: After carefully going through all the seven opinions in the above case, it is difficult to hold that the settled view of this Court that the reservation under Article 15(4) or Article 16(4) could not be more than fifty per cent has been unsettled by a majority on the Bench which decided this case., The reference of judges who spoke in different voices are the judgments as noted above. It is relevant to notice that neither in N.M. Thomas nor in K.C. Basant case was the decision of the Court to disapprove the fifty per cent ceiling as fixed by M.R. Balaji. It is true that Justice Fazal Ali, Justice O. Chinnappa Reddy and Justice Krishna Iyer have expressed doubt about the advisability of the fifty per cent rule. Another judgment referred to is the judgment of this Court in State of Punjab and Hira Lal and others, 1970 (3) Supreme Court 567, where Justice K.S. Hegde, speaking for a three‑Judge Bench, observed that the question of reservation to be made is primarily a matter for the State to decide. However, no observation was made by Justice Hegde regarding the Balaji case., The judgment of this Court in N.M. Thomas, Akhil Bharatiya Karamchari Sangh and State of Punjab and even the dissenting judgment of Justice Krishna Iyer in Devadasan and Akhil Bharatiya Karamchari Sangh have been referred to and considered by the nine‑Judge Constitution Bench of this Court in Indira Sawhney. In Indira Sawhney, Justice B.P. Jeevan Reddy, while considering question No.6, noted M.R. Balaji, Devadasan, N.M. Thomas and concluded that reservation contemplated in clause (4) of Article 16 should not exceed fifty per cent., One more judgment delivered after Indira Sawhney has been relied upon by Shri Rohtagi: S.V. Joshi and others versus State of Karnataka and others, (2012) 7 Supreme Court 41. Shri Rohtagi submits that this Court in S.V. Joshi, in paragraph 4 referring to M. Nagaraj versus Union of India, (2006) 8 Supreme Court 212, held that if a State wants to exceed fifty per cent reservation, then it is required to base its decision on quantifiable data. The paragraph states: Subsequent to the filing of the above writ petitions, Articles 15 and 16 of the Constitution have been amended vide the Constitution (Ninety‑third Amendment) Act, 2005, and the Constitution (Eighty‑first Amendment) Act, 2000, respectively, which Amendment Acts have been the subject‑matter of subsequent decisions of this Court in M. Nagaraj v. Union of India (2006) 8 Supreme Court 212, and Ashoka Kumar Thakur v. Union of India [(2008) 6 Supreme Court 1] in which, inter alia, it has been laid down that if a State wants to exceed fifty per cent reservation, then it is required to base its decision on quantifiable data. In the present case, this exercise has not been done., The observation was made that the Constitution Bench in M. Nagaraj has not laid down any proposition that a State wanting to exceed fifty per cent reservation must base its decision on quantifiable data. The Constitution Bench reiterated the numerical benchmark of a fifty per cent ceiling in Indira Sawhney. Paragraph 120 of Indira Sawhney states: In addition to the above requirements this Court has evolved numerical benchmarks like a ceiling limit of fifty per cent based on post‑specific roster coupled with the concept of replacement to provide immunity against the charge of discrimination. Paragraph 122 adds: We reiterate that the ceiling limit of fifty per cent, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse., The Constitution Bench judgment of this Court in Ashoka Kumar Thakur has also not laid down any proposition which has been referred to in paragraph 4 of S.V. Joshi. This Court's three‑Judge Bench judgment in S.V. Joshi does not support the contention of Shri Rohtagi., In view of the foregoing discussion, we do not find any substance in the second ground of Shri Rohtagi that the judgment of Indira Sawhney should be referred to a larger Bench., The judgment of Indira Sawhney has been followed by this Court in a number of cases including at least the following four Constitution Bench judgments: (1) Post Graduate Institute of Medical Education & Research, Chandigarh and others versus Faculty Association and others; (2) M. Nagaraj and others versus Union of India and others, 2006 (8) Supreme Court 212; (3) Krishna Murthy (Dr.) and others versus Union of India, 2010 (7) Supreme Court 202, which, though considering reservation under Articles 243D and 243T, applied the fifty per cent ceiling as laid down in Balaji; and (4) Chebrolu Leela Prasad Rao & Ors. versus State of Andhra Pradesh & Ors., 2020 (7) Supreme Court 162, reiterated the principle that the outer limit is fifty per cent as specified in Indira Sawhney., We move to ground Nos.3 and 4 as formulated by Shri Mukul Rohtagi to make a reference to the larger Bench. The Constitution, the paramount law of the country, has given Indian citizens basic freedom and equality which are meant to be lasting and permanent. The Constitution of India is the vehicle by which the goals set out in it are to be achieved. From primitive society to the organised nation, the most cherished right sought by all human beings was the right to equality. The Preamble of our Constitution reflects deep deliberations and precision in choosing ideals and aspirations of the people which shall guide all those who have to govern. Equality of status and opportunity is one of the noble objectives of the framers of the Constitution. The doctrine of equality before law is part of the rule of law which pervades the Indian Constitution. Justice Y.V. Chandrachud, in Smt. Indira Nehru Gandhi versus Raj Narain, (1975) Supreme Court 1, referred to equality of status and opportunity as forming part of the basic structure of the Constitution. Paragraph 664 observed: I consider it beyond the pale of reasonable controversy that if there be any unamendable features of the Constitution on the score that they form a part of the basic structure of the Constitution, they are that: (i) Indian sovereign democratic republic; (ii) Equality of status and opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion; and (iv) the nation shall be governed by a Government of laws, not of men., Articles 15 and 16 of the Constitution, which are facets of the right of equality, were incorporated as fundamental rights to translate the ideals and objectives of the Constitution and to give opportunities to the backward classes of society so as to enable them to catch up with those who are ahead of them. Article 15(1) and Article 16(1) are the provisions engrafted to realise substantive equality, whereas Articles 15(4) and 16(4) are to realise protective equality. Articles 15(1) and 16(1) are the fundamental rights of the citizens whereas Articles 15(4) and 16(4) are the obligations of the States. Justice B.P. Jeevan Reddy, in Indira Sawhney, paragraph 641, said that equality has been the single greatest craving of all human beings at all points of time., Dr. B.R. Ambedkar referred to Article 10(1) as a generic principle. He observed that if reservation is to be consistent with sub‑clause (1) of Article 10 it must be confined to the reservation of a minority of seats. He stated: If honourable Members will bear these facts in mind the three principles we had to reconcile, they will see that no better formula could be produced than the one that is embodied in sub‑clause (3) of Article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity has been embodied in sub‑clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration, which has now for historical reasons been controlled by one community or a few communities, should disappear and the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is that we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like seventy per cent of the total posts under the State and only thirty per cent are retained as the unreserved. Could anybody say that the reservation of thirty per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be, in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub‑clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and be effective in operation., The above views of Dr. Ambedkar expressed in the Constituent Assembly for balancing the draft Articles 10(1) and 10(3), equivalent to Articles 16 and 16(4), have been referred to and relied upon by the Supreme Court of India in Indira Sawhney as well as in other cases., Shri Rohtagi submits that this Court in Balaji held sub‑clause (4) of Article 16 as an exception to Article 16(1), which was the premise for fixing fifty per cent. In N.M. Thomas and Indira Sawhney it is now held that Article 16(4) is not an exception to Article 16(1). The seven‑Judge Constitution Bench in N.M. Thomas held that Article 16(4) is not an exception to Article 16(1), as noted in paragraph 713 of Indira Sawhney. Justice B.P. Jeevan Reddy, paragraph 733, said: At this stage, we see to clarify one particular aspect. Article 16(1) is a facet of Article 14, just as Article 14 permits reasonable classification, so does Article 16(1). Paragraph 741 laid down: In our respectful opinion, the view taken by the majority in Thomas is the correct one. We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in place to remove controversy. The backward class of citizens are classified as a separate category deserving special treatment in the nature of reservation of appointments/posts in the services of the State. Accordingly, we hold that clause (4) of Article 16 is not an exception to clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1)., As laid down by the Constitution Bench in Indira Sawhney, we proceed on the premise that Article 16(4) is not an exception to Article 16(1). It is also held that Article 16(4) is a facet of Article 16(1) and permits reasonable classification as is permitted by Article 14., In Balaji, the Constitution Bench did not base its decision only on the observation that Article 15(4) is an exception and proviso to Article 15(1). Article 15(4) was referred to as a special provision. Paragraph 34 of Balaji states: That is not to say that reservation should not be adopted; reservation should and must be adopted to advance the prospects of the weaker sections of society, but in providing for special measures in that behalf care should be taken not to exclude admission to higher educational centres to deserving and qualified candidates of other communities. A special provision contemplated by Article 15(4) like reservation of posts and appointments contemplated by Article 16(4) must be within reasonable limits. The interests of weaker sections of society, which are a first charge on the States and the Centre, have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision a State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Article 15(4). Speaking generally and in a broad way, a special provision should be less than fifty per cent; how much less would depend upon the present prevailing circumstances in each case., Both Shri Mukul Rohtagi and Shri Kapil Sibal submit that constitutional provisions contained in Articles 15 and 16 do not permit laying down any percentage in measures to be taken under Articles 15(4) and 16(4). They argue that fixation of a fifty per cent ceiling cannot be said to be constitutional and ask from where the fifty per cent rule originates., The fifty per cent rule spoken in Balaji and affirmed in Indira Sawhney is to fulfil the objective of equality as engrafted in Article 14, of which Articles 15 and 16 are facets. Indira Sawhney itself answers the question. Paragraph 807 held that it is more reasonable to say that reservation under clause (4) shall not exceed fifty per cent of the appointments. Justice Jeevan Reddy stated: We must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. The principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits and what is more reasonable than to say that reservation under clause (4) shall not exceed fifty per cent of the appointments or posts, barring certain extraordinary situations as explained hereinafter. From this point of view, the twenty‑seven per cent reservation provided by the impugned memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of forty‑nine point five per cent. In this connection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court in V. Narayana Rao versus State of Andhra Pradesh [All India Reporter 1987 Andhra Pradesh 53 : 1987 Labour IC 152 : (1986) 2 Andhra Pradesh Law Reports 258], striking down the enhancement of reservation from twenty‑five per cent to forty‑four per cent for OBCs. The said enhancement had the effect of taking the total reservation under Article 16(4) to sixty‑three per cent. Paragraph 808 referred to speech of Dr. Ambedkar where he said that reservation should be confined to a minority of seats. When translated into figure, the expression less than fifty per cent comes into operation., To change the fifty per cent limit is to have a society which is not founded on equality but based on caste rule. Democracy is an essential feature of our Constitution and part of our basic structure. If reservation goes above the fifty per cent limit, which is reasonable, it will be a slippery slope, the political pressure will make it hardly possible to reduce the same. Thus, the percentage of fifty per cent has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14, of which Articles 15 and 16 are facets., Shri Rohtagi submits that the Constitution of India is a living document; ideas cannot remain frozen, and even the thinking of the framers cannot remain frozen for time immemorial. He argues that due to changing needs of society the law should change. Justice J.M. Shalet and Justice K.N. Grover, speaking in Kesavananda Bharati Sripadagalvaru versus State of Kerala and another, (1973) 4 Supreme Court 225, laid down: These petitions raise momentous issues of great constitutional importance. Our Constitution is unique, apart from being the longest in the world. It is meant for the second largest population with diverse people speaking different languages and professing varying religions. It was chiselled and shaped by great political leaders and legal luminaries, most of whom had taken an active part in the struggle for freedom from the British yoke and who knew what domination of a foreign rule meant in the way of deprivation of basic freedoms and exploitation of the millions of Indians. The Constitution is an organic document which must grow and must take stock of the vast socioeconomic problems, particularly of improving the lot of the common man consistent with his dignity and the unity of the nation. Every Constitution is expected to endure for a long time. Therefore, it must necessarily be elastic. It is not possible to place society in a straight‑jacket. The society grows, its requirements change. The Constitution and the laws may have to be changed to suit those needs. No single generation can bind the course of the generation to come. Hence every Constitution, wisely drawn up, provides for its own amendment., Shri Rohtagi has placed reliance on the judgment of this Court in K.S. Puttaswamy and another versus Union of India and others, 2017 (10) Supreme Court 1, wherein paragraph 476 states: However, the learned Attorney General has argued in support of the eight‑Judge Bench and the six‑Judge Bench, stating that the Framers of the Constitution expressly rejected the right to privacy being made part of the fundamental rights chapter of the Constitution. While he may be right, Constituent Assembly debates make interesting reading only to show us what exactly the Framers had in mind when they framed the Constitution of India. As will be pointed out later in this judgment, our judgments expressly recognise that the Constitution governs the lives of 125 crore citizens of this country and must be interpreted to respond to the changing needs of society at different points in time., Another judgment relied upon by Shri Rohtagi is Supreme Court Advocates‑on‑Record Association and others versus Union of India, 1993 (4) Supreme Court 441, wherein paragraph 16 states: The proposition that the provisions of the Constitution must be confined only to the interpretation which the Framers, with the conditions and outlook of their time would have placed upon them is not acceptable and is liable to be rejected for more than one reason: firstly, some of the current issues could not have been foreseen; secondly, others would not have been discussed; and thirdly, still others may be left over as controversial issues, i.e., termed as deferred issues with conflicting intentions. Beyond these reasons, it is not easy or possible to decipher what factors influenced the mind of the Framers at the time of framing the Constitution when it is juxtaposed to the present time. The inevitable truth is that law is not static and immutable but ever‑increasingly dynamic and grows with the ongoing passage of time., The time fleets, generations grow, society changes, values and needs also change with time. There can be no denial that law should change with the changing time and changing needs of society. However, the proposition of law as noted above does not render any help to the submission of Shri Rohtagi that, in view of changing needs of society, the fifty per cent rule should be given up. The constitutional measures of providing reservation, giving concessions and other benefits to backward classes including socially and educationally backward classes are all affirmative measures. We have completed more than seventy‑three years of independence; Maharashtra is one of the developed states in the country which has the highest share in the country's GST i.e., sixteen per cent, higher share in Direct Taxes‑thirty‑eight per cent and higher contribution to the country's GDP, thirty‑eight point eight eight per cent. The goal of the Constitution framers was to bring a caste‑less society.
id_886	5	The Directive Principles of State Policy impose an onerous obligation on the States to promote the welfare of the people by securing and protecting, as effectively as possible, a social order in which social justice, economic and political dimensions inform all the institutions of national life. Providing reservation for the advancement of any socially and educationally backward class in public services is not the only means for improving the welfare of the backward class. The State ought to adopt other measures, including providing educational facilities to members of the backward class free of cost, granting fee concessions, and offering opportunities for skill development to enable candidates from the backward class to become self‑reliant., We recall the observation made by Justice R. V. Raveendran in Ashoka Kumar Thakur v. Union of India (2008 (6) SCC 1), where his Lordship held that any provision for reservation is a temporary crutch; such a crutch, if used unnecessarily for a prolonged period, should not become a permanent liability. In his words, “Caste has divided this country for ages. It has hampered its growth. To have a casteless society will be the realisation of a noble dream.”, The immediate effect of caste‑based reservation has been rather unfortunate. In the pre‑reservation era people wanted to shed the backward tag, whether social or economic. After reservation, there is a tendency even among those considered forward to seek the backward tag in the hope of enjoying reservation benefits. When more people aspire to backwardness instead of forwardness, the country stagnates. Reservation as an affirmative action is required only for a limited period to give socially and educationally backward classes a gentle supportive push. Without periodic review, continued reservation could turn the country into a permanently caste‑divided society, fracturing social unity., It is significant that the Constitution does not specifically prescribe a casteless society nor attempts to abolish caste. By barring discrimination on the basis of caste and providing affirmative action, the Constitution seeks to remove status differences among castes. When such differences are removed, all castes become equal, laying the foundation for a casteless, egalitarian society., We have no doubt that all governments take measures to improve the welfare of weaker sections of society, but the increasing demand for education, including higher education, for a larger segment of the population requires additional measures. In view of the privatisation and liberalisation of the economy, public employment alone is insufficient to meet the needs of all. More avenues must be created for members of weaker sections and backward classes to develop skills for employment beyond the public service. The objectives enshrined in the Constitution for society and the government remain unachieved and must continue to be pursued., In Ashoka Kumar Thakur v. Union of India, Justice Dalveer Bhandari also laid down that a balance must be struck to ensure that reservation remains reasonable. We are of the considered opinion that the cap on the percentage of reservation, as laid down by the Constitution Bench in Indira Sawhney, aims to balance the rights under Articles 15(1) and 15(4) as well as Articles 16(1) and 16(4). The cap seeks to achieve the principle of equality and is not arbitrary or unreasonable., The judgment in Indira Sawhney has been followed for more than a quarter of a century without any doubt being raised about the 50 percent rule, which has been repeatedly applied., Granville Austin, in The Indian Constitution: Cornerstone of a Nation, while discussing the judiciary and the social revolution, states: “The members of the Constituent Assembly brought to the framing of the judicial provisions of the Constitution an idealism equalled only by that shown towards the Fundamental Rights. Indeed, the Judiciary was seen as an extension of the Rights, for it was the courts that would give the Rights force. The Judiciary was to be an arm of the social revolution, upholding the equality that Indians longed for during the colonial days, but had not gained—not simply because the regime was colonial and repressive, but largely because the British feared that social change would endanger their rule.”, The Constitution enjoins a constitutional duty to interpret and protect the Constitution. The Supreme Court of India is the guardian of the Constitution., We may also quote Justice Mathew in Keshavananda Bharati (supra), where he reiterated that the judicial function is both creation and application of law. In paragraph 1705 he observed: “The judicial function is, like legislation, both creation and application of law… The law‑creating function of the courts is especially manifest when the judicial decision has the character of a precedent… Within such a legal system, courts are legislative organs in exactly the same sense as the organ which is called the legislator in the narrower and ordinary sense of the term.”, In All India Reporter Karamchari Sangh and Others v. All India Reporter Limited (1988 Supp SCC 472), a three‑Judge Bench speaking through Justice Venkataramiah held that the decisions of the Supreme Court of India, which is a court of record, constitute a source of law apart from being a binding precedent under Article 141 of the Constitution. Paragraph 11 states: “Article 141 provides that the law declared by the Supreme Court of India shall be binding on all courts within the territory of India. Even apart from Article 141, the decisions of the Supreme Court of India constitute a source of law as they are the judicial precedents of the highest court of the land.”, The Supreme Court of India again, in Nand Kishore v. State of Punjab (1995 (6) SCC 614), laid down that under Article 141 the law declared by this Court is of a binding character and as commandful as law made by a legislative body or its authorized delegate. Paragraph 17 states: “Their Lordships' decisions declare the existing law but do not enact any fresh law; this is not in keeping with the plenary function of the Supreme Court under Article 141, for the Court is not merely the interpreter of existing law but a source of law itself.”, When the Constitution Bench in Indira Sawhney held that 50 percent is the upper limit of reservation under Article 16(4), that law became binding under Article 141 and must be implemented., The submission of Shri Kapil Sibal that the Indira Sawhney judgment shackles the legislature in enacting law does not merit acceptance. When the Supreme Court of India declares that reservation ought not to exceed 50 percent except in extraordinary circumstances, all authorities, including the legislature and the executive, are bound by that law. There is no question of any shackle; the law is binding on all., The Supreme Court of India has laid down in numerous cases that reservation in super‑specialities, higher technical disciplines, and fields such as atomic research are not to be given where it is not conducive to public or national interest. Paragraph 838 of Indira Sawhney notes: “There are certain services and positions where, because of the nature of duties attached or the level in the hierarchy, merit alone counts. It may not be advisable to provide reservations for technical posts in research and development organisations, superspecialities in medicine, engineering, physical sciences, defence services, and similar high‑echelon posts such as professors, pilots, scientists, and technicians in nuclear and space applications.”, If we accept the respondent’s submission that, since Articles 15 and 16 do not expressly exclude certain posts from reservation, no such exclusion could be made, the law as it stands today is the one laid down in Indira Sawhney paragraph 838, which is derived from constitutional provisions including Articles 15 and 16., The Parliament has passed the Central Educational Institutions (Reservation in Admission) Act, 2006, providing 15 percent reservation for Scheduled Castes, 7.5 percent for Scheduled Tribes, 15 percent for Other Backward Classes, and 27 percent for other classes in Central Educational Institutions. Section 4 of the Act specifies institutions to which the provisions of Section 3 shall not apply, namely: (a) Central Educational Institutions established in tribal areas referred to in the Sixth Schedule; (b) institutions of excellence, research institutions, and institutions of national and strategic importance specified in the Schedule; (c) Minority Educational Institutions as defined in the Act; and (d) courses or programmes at high levels of specialisation, including post‑doctoral level, as may be specified by the Central Government., The exclusion of reservation in the above parliamentary enactment clearly indicates that the law declared by Indira Sawhney in paragraphs 839, 840 and 859 is being understood as law and is being implemented, reinforcing our view that the ceiling limit of 50 percent for reservation, as approved by Indira Sawhney, is a law within the meaning of Article 141 and must be implemented by all concerned., In view of the foregoing discussion, grounds 3 and 4 urged by Shri Mukul Rohtagi do not furnish any basis to review Indira Sawhney or to refer the judgment to a larger Constitution Bench., Shri Rohtagi submits that the Indira Sawhney judgment, being a judgment on Article 16(4), cannot be applied to Article 15(4). Justice Jeevan Reddy, before answering the questions framed, observed that the debates of the Constituent Assembly on Article 16 and the decisions of this Court on Articles 15 and 16, as well as certain decisions of the United States Supreme Court, are helpful. He noted two early cases on Article 15: State of Madras v. Champakam Dorairajan (AIR 1951 SC 226) and B. Venkataramana v. State of Tamil Nadu (AIR 1951 SC 229). In paragraph 757 he stated: “Though Balaji was not a case arising under Article 16(4), what it said about Article 15(4) came to be accepted as equally good and valid for the purpose of Article 16(4). The formulations enunciated with respect to Article 15(4) were, without question, applied and adopted in cases arising under Article 16(4).”, It was further held in paragraph 808 that clause (4) of Article 16 is a means of achieving the objective of equality and is essentially a restatement of the principle of equality enshrined in Article 14. The provision under Article 16(4), conceived in the interest of certain sections of society, must be balanced against the guarantee of equality in clause (1) of Article 16, which is a guarantee extended to every citizen., Clause (4) of Article 15 is also a special provision that restates the principles of equality enshrined in Article 14. The principles laid down in paragraph 808 with respect to Article 16(4) are clearly applicable to Article 15(4) as well. In the majority judgment of the Supreme Court of India in Indira Sawhney, the Balaji principle—that reservation should not exceed 50 percent—was approved and not departed from. The expression ‘Backward Class’ used in Article 16(4) is broader than the expression ‘Socially and Educationally Backward Class’ used in Article 15(5)., The criticism that Indira Sawhney did not consider the impact of Directive Principles of State Policy while interpreting Articles 14, 16(1) and 16(4) is therefore unfounded. In the celebrated judgment of the Supreme Court of India in Keshavananda Bharati Sripadagalvaru and Others v. State of Kerala (1973 4 SCC 225), several opinions dealt with Parts III and IV of the Constitution. Chief Justice S. M. Sikri, in paragraph 147, stated: “It is impossible to equate the Directive Principles with Fundamental Rights, though it cannot be denied that they are very important. To say that the Directive Principles give a directive to take away Fundamental Rights in order to achieve what is directed by the Directive Principles seems to me a contradiction in terms.”, In the same judgment, Justice Hegde and Justice Mukherjea held that Fundamental Rights and the Directive Principles of State Policy constitute the conscience of our Constitution. Paragraph 712 reads: “No one can deny the importance of the Directive Principles. The Fundamental Rights and the Directive Principles constitute the ‘conscience’ of our Constitution. The purpose of the Fundamental Rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all. The purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non‑violent social revolution.”, The Constitution Bench of the Supreme Court of India in Minerva Mills Ltd. and Others v. Union of India (1980 3 SCC 625) also dealt extensively with the relationship between Fundamental Rights and Directive Principles. Justice Chandrachud, C.J., observed in paragraph 40: “The main controversy centres on whether the Directive Principles of State Policy contained in Part IV can have primacy over the Fundamental Rights conferred by Part III. Article 31C, as amended by the 42nd Amendment, provides that a law giving effect to any Directive Principle cannot be challenged as void on the ground that it violates the rights conferred by Article 14 or Article 19, thereby subordinating those Fundamental Rights to the Directive Principles.”, It was held that both Part III and Part IV of the Constitution represent two kinds of State obligations—negative and positive. The harmony and balance between Fundamental Rights and Directive Principles is an essential feature of the basic structure of the Constitution. Justice Chandrachud, elaborating this relationship in paragraph 57, stated: “The edifice of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State which carries the obligation to secure to our people social, economic and political justice. Accordingly, we placed Part IV in the Constitution containing Directive Principles that specify the socialist goal to be achieved… The rights conferred by Part III are not an end in themselves but are means to the end specified in Part IV. Any erosion of the balance between the two parts would destroy an essential element of the basic structure of our Constitution.”, Article 38 of the Directive Principles obliges the State to strive to promote the welfare of the people by securing and protecting, as effectively as possible, a social order in which justice, social, economic and political dimensions inform all institutions of national life. Articles 15(4) and 16(4) are steps in giving effect to the policy under Article 38. Justice Jeevan Reddy, in his judgment on Indira Sawhney, noted Article 38 and Article 46 in paragraph 647: “Clause (1) of Article 38 obligates the State to ‘strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.’”, The criticism that the Indira Sawhney judgment does not consider the impact of Directive Principles while interpreting Article 16 is therefore incorrect. Paragraph 841 observes: “We see no particular relevance of Article 38(2) in this context. Article 16(4) is also a measure to ensure equality of status besides equality of opportunity.”, Mr. Rohtagi has referred to Article 39(b) and Article 39(c), which enumerate principles of policy for the State: (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; and (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. We fail to see how measures under Articles 15(4) and 16(4) could be read as breaching these Directive Principles. Both provisions are also aimed at ensuring equality of status in addition to equality of opportunity., We therefore find no substance in the submissions of Mr. Mukul Rohtagi., Shri Rohtagi submits that an Eleven‑Judge Bench of the Supreme Court of India in T.M.A. Pai Foundation and Others v. State of Karnataka (2002 8 SCC 481) struck down the law laid down by the Supreme Court in St. Stephen's College (1992 1 SCC 558), which had held that aided minority educational institutions, although entitled to preferably admit their community candidates, could not admit more than 50 percent of students from the general category. He argues that the Eleven‑Judge Bench set aside that 50 percent cap., The judgment of the Eleven‑Judge Bench states: “The right of the aided minority institution to preferably admit students of its community, when Article 29(2) is applicable, was clarified in St. Stephen's College. While upholding the admission procedure, this Court held that the state may regulate the intake in this category with due regard to the area the institution serves, but that intake should not exceed 50 percent in any case. Although we accept the ratio of St. Stephen's, which has held the field for over a decade, we have reservations about a rigid percentage. A ceiling of 50 percent would not be proper for all levels of institutions; the appropriate percentage should depend on the level of the institution and the educational needs of the area.”, The Court further observed that fixing a percentage in St. Stephen's effectively “reserved” 50 percent of seats in a minority institution for the general category, which pertains to the right of an individual and is not a class right. It would apply only when an individual is denied admission on the basis of religion, race, caste, language or any of them, and does not create a class interest for non‑minorities., T.M.A. Pai Foundation was a judgment of the Supreme Court of India interpreting Articles 29 and 30 of the Constitution.
id_886	6	Article 30 of the Constitution gives a Fundamental Right to minorities to establish and administer educational institutions. The right of minorities is a distinct right recognized in the Constitution. The 93rd Constitutional Amendment Act, 2005 added sub‑clause (5) to Article 15, which excludes the minority educational institutions referred to in clause (1) of Article 30. Sub‑clause (5) of Article 15 clearly indicates that, with regard to rights of minorities concerning admission to educational institutions, the minority educational institutions referred to in clause (1) of Article 30 are completely excluded., The Supreme Court of India laid down principles in the T.M.A. Pai Foundation case, which find clear expression in the 93rd Constitutional Amendment. A three‑judge bench decision of the Supreme Court of India in Society for Un‑aided Private Schools of Rajasthan v. Union of India (2012) 6 Supreme Court Cases 1 considered Articles 14, 15, 16 and 21A of the Constitution. Chief Justice Kapadia, speaking for the majority, held that reservation of 25 percent in unaided minority schools changes the character of the schools, holding that Section 12(1)(c) of the Right to Education Act, 2009 violates the right conferred on minority schools under Article 30. The relevant paragraphs of that judgment are as follows:, Article 15(5) is an enabling provision; it is for the respective States either to enact legislation or issue an executive instruction providing for reservation, except in the case of minority educational institutions referred to in Article 30(1). The intention of Parliament is that the minority educational institution referred to in Article 30(1) is a separate category that needs protection under Article 30(1). Un‑aided minority schools need special protection under Article 30(1). Article 30(1) is not conditional as Article 19(1)(g); in a sense it is absolute, as the Constitution framers thought it was the duty of the Government to protect minorities in the matter of preservation of culture, language and script via establishment of educational institutions for religious and charitable purposes (see Article 26). Reservations of 25 percent in such unaided minority schools result in changing the character of the schools if the right to establish and administer such schools flows from the right to conserve language, script or culture, which is conferred on such unaided minority schools. Thus, the 2009 Act, including Section 12(1)(c), violates the right conferred on such unaided minority schools under Article 30(1)., From the law laid down in the T.M.A. Pai Foundation case and the Society for Un‑aided Private Schools of Rajasthan case, it is clear that there can be no reservation in unaided minority schools referred to in Article 30(1)., The 50 percent ceiling imposed by the Supreme Court of India in the St. Stephen’s College case was struck down by the T.M.A. Pai Foundation case to give effect to the content and meaning of Article 30. The striking of the 50 percent cap with regard to minority institutions is a different context and has no bearing on the 50 percent cap approved in the reservation under Article 16(4) in the Indira Sawhney case., Shri Rohtagi, relying on the 77th and 81st Constitutional Amendment Acts, submits that these amendments partially undo the judgment of Indira Sawhney and necessitate revisiting that judgment. By the 77th Constitutional Amendment Act, 1995, sub‑clause (4A) was inserted in Article 16, allowing reservation in promotion in favour of Scheduled Castes and Scheduled Tribes. By virtue of sub‑clause (4A), the reservation in promotion is permissible, and the ratio laid down in Indira Sawhney no longer survives. The 81st Constitutional Amendment Act, 2000 inserted sub‑clause (4B) in Article 16, which provides that unfilled vacancies of a year which were reserved shall be treated as a separate class of vacancies to be filled in any succeeding year, and such vacancies shall not be counted together with the vacancies of the year in determining the ceiling of fifty percent reservation. The text of Article 16(4B) is: 'Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year.', The above constitutional amendment makes it clear that the ceiling of fifty percent has now received constitutional recognition. The ceiling of fifty percent was approved by the Supreme Court of India in the Indira Sawhney case, and the amendment recognises that ceiling, leaving no ground to revisit Indira Sawhney., Shri Rohtagi also submits that the Indira Sawhney judgment held that States cannot identify backward classes solely on the basis of economic criteria, as the judgment set aside the order dated 13.08.1990 which provided ten percent reservation to economically weaker sections. He argues that the 103rd Constitutional Amendment inserted Article 15(6) and Article 16(6), granting ten percent reservation to economically weaker sections. In view of the ten percent reservation mandated by the 103rd Amendment, the fifty percent reservation ceiling laid down by Indira Sawhney is breached. Shri Rohtagi further states that the issue pertaining to the 103rd Amendment has been referred to a larger bench in W.P. (Civil) No. 55 of 2019, Janhit Abhiyan v. Union of India. The present counsel refrains from making any observation regarding the effect and consequence of the 103rd Constitutional Amendment., Shri Rohtagi submits that paragraph 810 of the Indira Sawhney judgment refers to certain extraordinary circumstances that cannot be said to be cast in stone. The extraordinary circumstances mentioned in paragraph 810, such as far‑flung and remote areas, are illustrative and not exhaustive. He further argues that the test is geographical and may not apply in every State. Paragraph 810, as provided by Justice Jeevan Reddy, reads: 'While 50 percent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far‑flung and remote areas the population inhabiting those areas might, on account of their being put out of the mainstream of national life and in view of conditions peculiar to and characteristic to them, need to be treated in a different way; some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.', The submission that extraordinary situations indicated in paragraph 810 are only illustrative is fully endorsed. However, it is noted that paragraph 810 also includes a social test, as the expression 'being out of the mainstream of national life' reflects a social dimension that must be satisfied for a case to fall within the exception., The Supreme Court of India, in Union of India v. Rakesh Kumar (2010) 4 Supreme Court Cases 50, considered the provisions of the Fifth Schedule, Article 243B and Part IX inserted by the 73rd Constitutional Amendment Act, 1992. Paragraphs 43 and 44 of that judgment are as follows: 'For the sake of argument, even if an analogy between Article 243‑D and Article 16(4) were viable, a close reading of the Indira Sawhney decision will reveal that, although an upper limit of 50 percent was prescribed for reservations in public employment, the decision recognised the need for exceptional treatment in some circumstances. This is evident from the following words (Paras 809, 810): \While 50 percent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people...\ We believe that the case of Panchayats in Scheduled Areas is a fit case that warrants exceptional treatment with regard to reservations. The rationale behind imposing an upper ceiling of 50 percent in reservations for higher education and public employment cannot be readily extended to the domain of political representation at the Panchayat level in Scheduled Areas.', The Supreme Court of India, in K. Krishna Murthy and others v. Union of India (2010) 7 Supreme Court Cases 202, applied the 50 percent ceiling in vertical reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes in the context of local self‑government, but held that an exception can be made to safeguard the interests of Scheduled Tribes located in Scheduled Areas. Paragraph 82(iv) states: 'The upper ceiling of 50 percent vertical reservations in favour of SCs/STs/OBCs should not be breached in the context of local self‑government. Exceptions can only be made in order to safeguard the interests of the Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas.', The Constitution Bench of the Supreme Court of India, in the same case, approved the Union of India v. Rakesh Kumar judgment in paragraph 67, which holds: 'In the recent decision reported as Union of India v. Rakesh Kumar, this Court explained why it may be necessary to provide reservations in favour of Scheduled Tribes that exceed 50 percent of the seats in panchayats located in Scheduled Areas. However, such exceptional considerations cannot be invoked when examining the quantum of reservations in favour of backward classes for local bodies located in general areas. In such circumstances, the vertical reservations in favour of SC/ST/OBCs cannot exceed the upper limit of 50 percent when taken together.', It is thus concluded that extraordinary situations indicated in paragraph 810 are illustrative and not exhaustive, but they provide guidance on what may qualify as extraordinary., The seven‑judge Constitution Bench judgment in Keshav Mills Co. Ltd. v. Commissioner of Income Tax (1965) 2 Supreme Court Reports 908 unanimously held that before reviewing and revising an earlier decision, the Court must be satisfied that it is necessary to do so in the interest of the public good or for any other compelling reason, and must endeavour to maintain certainty and continuity in the interpretation of law., In Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 Supreme Court Cases 396, the prayer to refer the Constitution Bench judgment in M. Nagaraj to a larger bench was rejected, relying on the law laid down in Keshav Mills. Paragraph 9 of that judgment states: 'Since we are asked to revisit a unanimous Constitution Bench judgment, it is important to bear in mind the admonition of the Constitution Bench judgment in Keshav Mills... The Court should ask itself whether, in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised... Frequent exercise of the power to review earlier decisions may make law uncertain and introduce confusion which must be consistently avoided.', The principle of stare decisis also compels us not to accept the submissions of Shri Rohtagi. The Constitution Bench of the Supreme Court of India in State of Gujarat v. Mirzapur, Moti Kureshi Kassab Jamat and others (2005) 8 Supreme Court Cases 534 explained the principle in paragraphs 111 and 118: 'Stare decisis is a Latin phrase which means stand by decided cases; to uphold precedents; to maintain former adjudication. This principle is expressed in the maxim stare decisis et non quieta movere which means to stand by decisions and not to disturb what is settled... The doctrine of stare decisis is generally to be adhered to, because well‑settled principles of law founded on a series of authoritative pronouncements ought to be followed. Yet, the demands of changed facts and circumstances may justify a fresh look.', The Constitution Bench in Indira Sawhney, speaking through Justice Jeevan Reddy, held that the relevance and significance of the principle of stare decisis must be kept in mind. Paragraph 683 reads: 'Though we are sitting in a larger Bench, we have kept in mind the relevance and significance of the principle of stare decisis. We are conscious of the fact that in law certainty, consistency and continuity are highly desirable features. Where a decision has stood the test of time and has never been doubted, we have respected it unless, of course, there are compelling and strong reasons to depart from it.', The Constitution Bench in Indira Sawhney clearly binds us. The judgment of Indira Sawhney has stood the test of time and has never been doubted. On the clear principle of stare decisis, the judgment need not be revisited nor referred to a larger bench of the Supreme Court of India., Applying the principle laid down in Keshav Mills to the facts of the present case, it is crystal clear that no case is made out to refer the Indira Sawhney judgment to a larger bench., The question arises whether the Gaikwad Commission Report has made out a case of extraordinary situation for grant of separate reservation to the Maratha community exceeding the fifty percent limit., The majority judgment in Indira Sawhney held that reservation shall not exceed fifty percent as a rule, but recognized that extraordinary situations may justify exceeding that limit. Paragraph 809 states: 'From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50 percent.' Paragraph 810 reads: 'While 50 percent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far‑flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristic to them, need to be treated in a different way; some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.', The Gaikwad Commission, in Chapter X of its report, noted that the constitutional provisions relating to reservations under Articles 15 and 16 do not prescribe specific percentages for each backward class. It observed that reservations for Scheduled Castes (15 percent) and Scheduled Tribes (7.5 percent) have already been provided by the Government of India, leaving 22.5 percent for Other Backward Classes, which amounts to a total of 27 percent. The report also discussed the effect of the amended provisions of Article 16(4A) and (4B), which treat unfilled reserved vacancies as a separate class for future years and do not count them towards the fifty percent ceiling., The Commission further noted, citing the Supreme Court decision in M. Nagaraj & Ors. v. Union of India & Ors., that the ceiling of fifty percent reservation may be exceeded by showing quantifiable contemporary data relating to backwardness, as required by clause (4) of Article 15 and clause (4) of Article 16., The Constitution (Eighty‑fifth Amendment) Act, 2001 inserted Article 16(4A), which provides: 'Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.' The Supreme Court of India, in M. Nagaraj, examined the constitutional validity of this provision and noted the maximum limit of reservation in paragraphs 55 to 59 of its judgment., The Court held that the majority opinion in Indira Sawhney stated that the rule of fifty percent laid down in Balaji (AIR 1963 SC 649) was a binding rule and not a mere rule of prudence. Paragraph 58 of the Nagaraj judgment reads: 'However, in Indira Sawhney the majority held that the rule of 50 percent laid down in Balaji was a binding rule and not a mere rule of prudence.'
id_886	7	If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. The Constitution Bench noted its conclusion in paragraphs 121, 122 and 123. In paragraph 123 the following has been laid down: However, in this case, as stated above, the main issue concerns the extent of reservation. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions. However, if it wishes to exercise its discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50 per cent or obliterate the creamy layer or extend the reservation indefinitely., The Constitution Bench in paragraph 123 held that the provision of Article 16(4A) is an enabling provision and the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in the matters of promotion and, however, if it wishes to exercise its discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation., The above observation regarding quantifiable data was in relation to the enabling power of the State to grant reservation in promotion to the Scheduled Castes and Scheduled Tribes. It is further relevant to notice that in the last sentence of paragraph 123 it is stated: \It is made clear that even if the State has compelling reasons, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50 per cent or obliterate the creamy layer or extend the reservation indefinitely.\, The Constitution Bench, thus, in the above case clearly laid down that even for reservation in promotion, the ceiling of 50 per cent limit cannot be breached. The Commission has completely erred in understanding the ratio of the judgment when it took the view that, on the basis of quantifiable data, the ceiling of 50 per cent can be breached. No such ratio was laid down by the Supreme Court of India in M. Nagaraj. Hence, the very basis of the Commission to examine quantifiable data for exceeding the limit of 50 per cent is unfounded., Paragraph 236 of the Report of the Commission contains a heading QUANTIFIABLE DATA. It is useful to extract the entire paragraph 236 which is to the following effect: As per the Census of 2011, the population of Scheduled Castes and Scheduled Tribes in the State of Maharashtra is 11.81 per cent and 9.35 per cent respectively. The percentage of Backward Classes, Maratha and Kunbi, has not been specified in the Census of 2011. On the instructions of the Government of Maharashtra, the Gokhale Institute of Politics and Economics, Pune, conducted a Socio‑Economic Caste Census of the rural population in the State. The Institute recorded the Maratha‑Kunbi community at 35.7 per cent and all reserved Backward Classes at 48.6 per cent. The percentage of other classes or the population who have not disclosed their castes is shown to be 15.7 per cent. Although the survey relates to the rural area, the total percentage of the existing Backward Classes, Maratha and Kunbi who claim to be backward comes to 48.6 per cent plus 35.7 per cent, equivalent to 84.3 per cent of the total population. There is no dispute that a large population of the Maratha and Kunbi castes as well as existing Backward Classes inhabit the rural areas. The 48.6 per cent population of the existing reserved category, including Scheduled Castes, Scheduled Tribes and all Backward Classes, has already been identified as socially and educationally backward. The Maratha caste has been identified as socially, educationally and economically backward by this Commission. Thus, a total of 84.3 per cent of the population can be said to belong to backward classes., Regarding the above noted quantifiable data, the Commission recorded its reasons for reservation under Article 15(4) and Article 16(4) in paragraph 259. The Commission found that 80 to 85 per cent of the population in the State of Maharashtra is backward. According to the Commission, accommodating the 80 to 85 per cent backward population within a ceiling of 50 per cent would be an injustice and would frustrate the purpose of the reservation policy arising out of Article 15 and Article 16 of the Constitution. In the Commission's considered opinion, this is an extraordinary situation mentioned in the second Term of Reference and required by Indira Sawhney. The 80 to 85 per cent backward population cited above reflects quantifiable contemporary data, vide Nagaraj. If the ceiling of 50 per cent is applied, administrative efficiency would not be affected because all would compete. The Commission records that, as required by the second Term of Reference, there are not only exceptional circumstances but also extraordinary situations that need to be applied for the grant of reservation in the present context in view of Clause (4) of Article 15 and Clause (4) of Article 16 of the Constitution. This will enable the Government of Maharashtra to make special provision for the advancement of the Maratha community, which is certainly a socially and educationally backward class, and to provide reservation of appointments or posts in favour of the Maratha community in the services under the State., It is clear that the entire basis of the Commission to exceed the 50 per cent limit is that, since the population of backward class is between 80 and 85 per cent, reservation for them within the ceiling of 50 per cent would be an injustice., We may revert back to paragraph 810 of Indira Sawhney where an illustration regarding certain extraordinary situations is given. The exact words are: It might happen that in far‑flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristic to them, need to be treated in a different way; some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out., Shri Rohtagi submitted that the test laid down in paragraph 810 is only a geographical test and was an illustration. While Indira Sawhney used the expression far‑flung and remote areas, the same sentence also contained a social test stating that the population inhabiting those areas might be out of the main stream of national life and subject to peculiar conditions. Thus, one of the social conditions in paragraph 810 is that, being within the main stream of national life, the case of the Maratha does not satisfy the extraordinary situations indicated in paragraph 810 of Indira Sawhney. The Marathas are in the main stream of national life and are politically dominant., The Supreme Court of India in several judgments has examined what can constitute extraordinary situations as contemplated in paragraph 810. The three‑Judge Bench judgment in Union of India and others v. Rakesh Kumar and others, (2010) 4 SCC 50, held that an exceptional case of the 50 per cent ceiling can arise with respect to Panchayats in scheduled areas. This three‑Judge Bench decision was approved and reiterated by the Constitution Bench of the Supreme Court of India in K.K. Krishnamurthi. In those cases the Court was examining reservation in Panchayats. In the context of Part IX of the Constitution, the 50 per cent ceiling principle was applied but an exception was noticed., In paragraph 163 of the impugned judgment of the High Court of Maharashtra, the High Court concluded that the Maratha has made out a case of extraordinary situation within the meaning of paragraph 610 of Indira Sawhney's case. The High Court observed: We would curiously refer to the reports, which would disclose that it is for the first time in the form of the Gaikwad Commission that quantifiable data has been collected and, in terms of Nagaraj, the quantifiable data and inadequacy of representation are two key factors which would permit exceeding the reservation of 50 per cent by the State., The High Court endorsed the Commission's opinion that when the population of backward class is 85 per cent, granting only 50 per cent reservation would be invalid. The High Court noted that 15.7 per cent of the population have not disclosed their caste. The Commission therefore concluded that, although the survey relates to a rural area, the total percentage of existing backward classes, Maratha and Kunbi who claim to be backward comes to 48.6 per cent plus 35.7 per cent, equivalent to 84.3 per cent of the total population. The Commission also referred to the 1872 census, which indicated that more than 80 per cent of the population was found backward. The figures based on the 2011 census disclose that the State population is about 11.24 crore, of which 3.68 crore is the population of OBC (VJNT, OBC SBC). Ministry of Social Justice and Empowerment data show that OBCs constitute 33.8 per cent of Maharashtra's population, whereas Scheduled Castes‑Scheduled Tribes constitute 22 per cent. The Gaikwad Commission deduced that the Maratha population is 30 per cent. Thus, almost 85 per cent of the population belongs to backward classes, and suggesting that 85 per cent of people are backward yet receive only a 50 per cent reservation would be a travesty of justice. Whether this disparity achieves equality of status and opportunity is a moot question. The extraordinary circumstances illustrated in Indira Sawhney would therefore be attracted, and the constitutional theme of achieving equality can be attained. Once the Maratha community is accepted as a backward class, the State must uplift it, and in extraordinary circumstances exceed the 50 per cent limit, which we consider an extraordinary situation to cross that limit., Again at page 453 of the judgment, the High Court reiterated that extraordinary situations have been identified because the backward class is 85 per cent and the Maratha constitute 30 per cent. Paragraph 170 observes: The extraordinary situations have been culled out as the report declares that the Maratha community comprises 30 per cent of the State population, derived on the basis of quantifiable data. The extraordinary situation is therefore carved out for awarding adequate representation to the Maratha community, now declared socially, educationally and economically backward. Based on the 30 per cent population, the Commission concluded that around 85 per cent of the State population is entitled to the constitutional benefits listed under Article 15(4) and Article 16(4), constituting a compelling extraordinary situation demanding an extraordinary solution within the constitutional framework., From the above, it is clear that both the Commission and the High Court treated the extraordinary situations with regard to exceeding 50 per cent for granting separate reservation to the Maratha, based on the fact that the backward class population is 85 per cent and the reservation limit is only 50 per cent. The extraordinary circumstances as opined by the Commission and approved by the High Court are not the extraordinary situation referred to in paragraph 810 of Indira Sawhney. The Marathas are a dominant forward class and are in the main stream of national life. Therefore, the situation is not an extraordinary situation contemplated by Indira Sawhney, and both the Commission and the High Court erred in accepting it as such for exceeding the 50 per cent limit., Dr. B. R. Ambedkar, in the Constituent Assembly debates dated 30 November 1948 while debating draft Article 10/3 (Article 16(4) of the Constitution), gave an illustration: Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is that we would completely destroy the first proposition upon which we are all agreed, namely, that there shall be equality of opportunity. Let me give an illustration. Suppose reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent were retained as unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be, in my judgment. Therefore, the seats to be reserved, if the reservation is to be consistent with sub‑clause (1) of Article 10, must be confined to a minority of seats. Only then can the first principle find its place in the Constitution and be effective in operation., The illustration given by Dr. Ambedkar that supposing 70 per cent of posts are reserved and 30 per cent remain unreserved shows that 30 per cent open to general competition would not satisfy the principle of equality. Thus, the Constituent Assembly, by illustration, already disapproved the principle now propounded by the High Court. We cannot approve the view of the High Court based on the same view taken by the Commission., In view of the foregoing discussion, we are of the considered opinion that neither the Gaikwad Commission's report nor the judgment of the High Court of Maharashtra has made out an extraordinary situation in the case of the Maratha where the ceiling of 50 per cent can be exceeded. We have already examined the relevant discussion and conclusions of the Commission and found the Commission's conclusions unsustainable. We therefore hold that there is no case of extraordinary situation for exceeding the ceiling limit of 50 per cent for granting reservation to the Maratha over and above the 50 per cent ceiling., Whether the Act, 2018, as amended in 2019 granting separate reservation for the Maratha Community by exceeding the ceiling of 50 per cent makes out exceptional circumstances as per the judgment of Indira Sawhney? The 2018 Act declares the Maratha Community as educationally and socially backward. Section 4(1) reserves 16 per cent (12 per cent as per the 2019 amendment) of total seats in educational institutions, including private institutions other than minority institutions, and 16 per cent (13 per cent as amended by 2019) of total appointments in direct recruitment in public services and posts. Section 3(4) clarifies that nothing in the Act shall affect the reservation provided to other backward classes under the 2001 Act and the 2006 Act. The legislative history of the 2018 enactment is necessary to ascertain its objects and reasons., Various reports of National Backward Commissions and State Backward Commissions have repeatedly rejected the claim of the Maratha to be included in Other Backward Communities. After the Bapat Commission Report rejected the Maratha claim, the State Government appointed a Committee chaired by the sitting Minister Narayan Rane. Based on the Rane Committee report, the State enacted the 2014 Act, whose constitutional validity was challenged in the High Court of Maharashtra and stayed by an order dated 07 April 2015. During the pendency of the writ petition, the State Government referred to the Maharashtra Backward Class Commission in June 2017, requesting it to define the exceptional circumstances and extraordinary situations applicable for reservation benefits in the contemporary scenario., The Maharashtra Backward Class Commission submitted its report on 15 November 2018, which became the basis for the 2018 enactment., The statements of objects and reasons for the 2018 enactment were published in the Maharashtra Government Gazette dated 29 November 2018 (Bill No. 78 (LXXVIII) of 2018). Paragraph 6 notes the earlier 2014 Act, the stay by the High Court, and further reference to the Commission. It states: The Maharashtra State Reservation (for seats for admission in educational institutions in the State and for appointments or posts in the public services under the State) for Educationally and Socially Backward Category (ESBC) Act, 2014 (Mah.I of 2015), converting the Ordinance into an Act, was enacted on 9 January 2015. The constitutional validity of the Act was challenged before the Honorable High Court of Maharashtra, which stayed its implementation on 7 April 2015. Subsequently, the State Government requested the Maharashtra Backward Classes Commission in June 2017 to: (i) Determine contemporary criteria and parameters for ascertaining the social, educational and economic backwardness of the Marathas for extending reservation benefits under the constitutional provision, keeping in view various judgments, reservation laws and constitutional mandate; (ii) Define the exceptional circumstances and extraordinary situation applied for reservation benefits in the contemporary scenario; (iii) Scrutinize and inspect the quantifiable data and other information submitted to the Honorable Court to investigate the backwardness of the Maratha Community; (iv) Determine the representation of Marathas in State public employment; (v) Ascertain the proportion of the Maratha population in the State by collecting information from various sources., Paragraph 8 of the Statement of Objects and Reasons further states that the Commission submitted its report to the State Government on 15 November 2018 and refers to the conclusions and findings of the Commission., The report of the Maharashtra State Backward Class Commission dated 15 November 2018 became the basis for granting separate reservation to the Maratha community by exceeding the 50 per cent ceiling limit. We have already dealt in detail with the Commission's report, especially Chapter 10 where it addressed the extraordinary situation., The Government, after considering the report, its conclusions, findings and recommendations, formed the opinion to give separate reservation to the Maratha community as Socially and Educationally Backward Classes (SEBC). Paragraph 9 of the Statement of Objects and Reasons reads: The Government of Maharashtra has considered the report, conclusions, findings and recommendations of the Commission. Based on the exhaustive study of various aspects regarding the Marathas—public employment, education, social status, economic status, population ratio, living conditions, small land holdings, farmer suicide rates, types of work, migration, etc.—the Government is of the opinion that (a) the Maratha Community is socially and educationally backward and a backward class for the purposes of Article 15(4) and Article 16(4), on the basis of quantifiable data showing backwardness and inadequacy of representation; (b) given the exceptional circumstances and extraordinary situation generated by declaring the Maratha socially and educationally backward, and considering the existing OBC list, forcing them to share reservation entitlement with a 30 per cent Maratha citizenry would create a catastrophic scenario, an extraordinary situation and exceptional circumstances that, if not addressed swiftly, could disturb harmonious coexistence in the State; therefore, it is expedient to relax the reservation percentage by exceeding the 50 per cent limit for their advancement, without disturbing the existing fifty‑two per cent reservation applicable in the State, only for those not in the creamy layer; (c) it is expedient to provide 16 per cent reservation to such category; (d) it is expedient to make special provision by law for the advancement of any socially and educationally backward classes of citizens in admissions to educational institutions (other than minority institutions), but such provisions shall not include reservation of seats for elections to Village Panchayat Samitis, Zilla Parishads, Municipal Councils, Municipal Corporations; (e) it is expedient to provide reservation to such classes in admissions to educational institutions, including private institutions, whether aided or unaided by the State, other than minority institutions referred to in clause (1) of Article 30, and in appointments in public services and posts under the State, excluding reservations for Scheduled Tribes in Scheduled Areas under the Fifth Schedule, as per the notification issued on 9 June 2014; (f) providing reservation to the Maratha Community will not affect administrative efficiency, as the Government is not diluting educational qualifications for direct recruitment and competition will definitely exist; and (g) to enact a suitable law for the above purposes. In view of the above, the State Government opines that persons belonging to such category below the creamy layer need special help to advance further, so that they can achieve equality with advanced sections of society and proceed on their own., The statement and object of the bill clearly indicate that the State formed its opinion on the basis of the Commission reports and accepted the Commission's reasons that extraordinary circumstances for exceeding the ceiling limit were made out. We have analyzed the Commission's report in detail and held that no extraordinary circumstances were made out. While the foundation itself is unsustainable, the State Government's formation of opinion to grant separate reservation to the Marathas exceeding the 50 per cent limit is also unsustainable., It is well settled that all legislative Acts and executive actions of the Government must comply with the Fundamental Rights. Any legislative or executive action of the State that violates Fundamental Rights is ultra vires the Constitution. The 50 per cent ceiling limit for reservation laid down by Indira Sawhney is based on the principle of equality enshrined in Article 16. In paragraph 808, Indira Sawhney stated: It needs no emphasis to say that the principal aim of Articles 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is a means of achieving the same objective. Clause (4) is a special provision—though not an exception to Clause (1). Both provisions must be harmonised, as both restate the principle of equality enshrined in Article 14. The provision under Article 16(4), conceived in the interest of certain sections of society, should be balanced against the guarantee of equality in Clause (1) of Article 16, which is a guarantee to every citizen. Dr. B. R. Ambedkar himself contemplated reservation being \confined to a minority of seats\ (see his speech in the Constituent Assembly, paragraph 28). No other member suggested otherwise. Thus, reservation of a majority of seats was never envisaged by the founding fathers, and we are not satisfied that the present context requires departure from that concept., The Constitution Bench of the Supreme Court of India in M. Nagaraj reiterated that the ceiling limit on reservation fixed at 50 per cent is to preserve equality. Paragraphs 111 and 114 laid down: The petitioners submitted that equality is a basic feature of the Constitution. To preserve equality, a balance was struck in Indira Sawhney to ensure that the basic structure of Articles 14, 15 and 16 remains intact while achieving social upliftment. To balance equality, a ceiling limit of 50 per cent of cadre strength was fixed; reservation was confined to initial recruitment and not extended to promotion. In Indira Sawhney, the equality protected by the 50 per cent rule was achieved by balancing the rights of the general category vis‑à‑vis the rights of backward classes en bloc consisting of OBCs, Scheduled Castes and Scheduled Tribes., We have found that no extraordinary circumstances were made out in granting separate reservation to the Maratha Community by exceeding the 50 per cent ceiling limit. The Act, 2018 violates the principle of equality enshrined in Article 16. Exceeding the ceiling limit without any exceptional circumstances clearly violates Articles 14 and 16 of the Constitution, rendering the enactment ultra vires., We thus conclude that the Act, 2018 as amended in 2019, granting separate reservation for the Maratha community has not made out any exceptional circumstances to exceed the ceiling of 50 per cent reservation., Shri Pradeep Sancheti, learned senior counsel for the appellant, elaborated his submissions and questioned the Gaikwad Commission's report on numerous grounds. Shri Patwalia, learned senior counsel for the State of Maharashtra, refuted the challenge., Shri Sancheti submits that judicial scrutiny of the quantifiable data claimed by the State is an essential constitutional safeguard. He submits that, although the Supreme Court of India must look at the report with judicial deference, judicial review is permissible on several counts. A report that violates constitutional principles and the rule of law can be interfered with in exercise of judicial review. Shri Sancheti notes that three National Backward Classes Commissions and three State Backward Classes Commissions over the last 60 years have repeatedly rejected the claim of the Marathas to be included in Other Backward Communities. He submits that the reports of those commissions could not have been ignored by the Gaikwad Commission in the manner it dealt with earlier reports. The National Backward Classes Commission and the State Backward Classes Commission considered contemporaneous data and reached conclusions at a particular time. The Gaikwad Commission, appointed in 2017, had no jurisdiction to pronounce that the Maratha was a backward community from the beginning, and earlier reports are faulty. Shri Sancheti further submits that the Maratha community is the most dominant community in Maharashtra, wielding substantial political power. The majority of the legislature belongs to the Maratha community; out of 19 Chief Ministers of Maharashtra, 13 were Marathas. Out of 25 medical colleges in Maharashtra, 17 are founded or owned by people belonging to the Maratha community. In 24 of the 31 District Central Cooperative Banks, the occupants are from the Maratha community.
id_886	8	Out of the functioning 161 Cooperative Sugar Factories in Maharashtra, persons from the Maratha community are the Chairman in 86 factories. The class which is politically dominant cannot be said to be suffering from social backwardness., Shri Sancheti submits that the survey conducted by the Commission suffers from various inherent flaws. The sample survey is unscientific, with a very small sample size of only 950 persons surveyed from urban areas. He alleges that the Commission was loaded with members belonging to the Maratha community and that the agency for data collection was selected without a tendering process. Of the five organisations that conducted the survey, two were headed by persons from the Maratha community. The Maratha community has adequate representation in public service, as apparent from data collected by the Commission itself. On the basis of the Commission’s data, no conclusion can be drawn that the Maratha community is not adequately represented in the services of the State., Shri Patwalia, refuting the submissions of the learned counsel for the appellant, states that the Gaikwad Commission considered the conclusions of all earlier commissions and recorded its own conclusion. Before proceeding further, the Commission laid down a procedure for investigation and decided to conduct a survey to collect information on social and educational backwardness. The survey covered all families in two villages in each district, and one Municipal Corporation and one Municipal Council from each of six regions of Maharashtra were selected. Five different agencies were nominated for the sample survey. The Commission also conducted public hearings, collecting representations from 195,174 persons, of which 193,651 were in favour of reservation for the Maratha community and 1,523 were in favour of reservation by creating a separate percentage. After fixing parameters, the Commission allocated ten marks for socially backward class, eight marks out of twenty‑five for educational backwardness, and seven marks for economic backwardness, and held that the Maratha community obtained more than 12.5 marks, satisfying the criteria of socially, educationally and economically backward class. Seven hundred eighty‑four resolutions of Gram Panchayats were in favour of granting reservation to Other Backward Classes. It is submitted that the representation of the Maratha community in public services is not equivalent to their population of 30 percent, and therefore they are entitled to separate reservation to achieve representation proportional to their population., Shri Patwalia further submits that the scope of judicial review of a commission’s report is very limited. The Supreme Court of India shall not substitute its opinion for that arrived by the Commission. He refers to the parameters of judicial review laid down in the Indira Sawhney case, stating that the Court shall not sit in appeal over the opinion of experts. The report of the Gaikwad Commission, based on a sample study of the Maratha community, formed the basis for the State Government’s opinion that the Maratha community is a socially and educationally backward class deserving separate reservation in recognition of their legitimate claim. Inclusion of the Maratha community in the existing Other Backward Class reservation of 19 percent would have an adverse effect on the OBCs already enjoying reservation; hence a separate reservation was decided., We have considered the submissions of the parties and perused the records. Before proceeding further, we need to notice the parameters of judicial review in such cases., We may first notice the Constitution Bench judgment of the Supreme Court of India in M.R. Balaji v. State of Mysore and others, AIR 1963 SC 649. In that case, the Court considered the Nagan Gowda Committee report of 1961, which recommended reservation. Pursuant to the report, the State of Mysore issued an order dated 31 July 1961 reserving fifteen percent of seats for Scheduled Castes, three percent for Scheduled Tribes and fifty percent for backward classes, totaling sixty‑eight percent of seats in engineering, medical and other technical institutions. The Constitution Bench elaborated the extent of judicial review of an executive action. In paragraph 35, the Court held that an executive action patently outside the limits of constitutional authority is ultra vires and may be struck down as a fraud on the Constitution, even if not actuated by mala fides. The Court emphasized that the substance of the matter, not its form, must be examined., The next judgment we notice is the Supreme Court of India decision in State of Andhra Pradesh and others v. U.S.V. Balram, (1972) 1 SCC 660. The case involved a commission’s report on backward classes in Andhra Pradesh. The High Court had held the enumeration of backward classes and reservation invalid, and the State appealed. The Court observed that the key question is whether the materials relied upon in the commission’s report are adequate and sufficient to support its conclusion that the persons listed are socially and educationally backward. The proper approach is to examine whether the relevant data and materials justify the commission’s conclusions., In Indira Sawhney, one of the questions framed by the Constitution Bench was whether the extent of judicial review is restricted with regard to the identification of backward classes and the percentage of reservations to a demonstrably perverse identification or unreasonable percentage. Paragraph 842 of that judgment states that there is no special standard of judicial scrutiny in matters arising under Article 16(4) or Article 15(4); the extent and scope of scrutiny depend on the nature of the subject matter, the right affected, and the applicable legal and constitutional provisions. While the Court normally extends deference to the executive’s judgment, the acts and orders made under Article 16(4) do not enjoy any particular immunity., Paragraph 798 of Indira Sawhney held that an opinion formed with respect to the grant of reservation is not beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters within the subjective satisfaction of the executive are well stated in Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295, and apply equally to constitutional provisions like Article 16(4) which place the fact of inadequate representation within the executive’s subjective judgment., The Constitution Bench in Barium Chemicals considered the expression ‘in the opinion of the Central Government’ in Section 237 of the Companies Act, 1956. Justice Hidayatullah observed that while the formation of opinion is subjective, the existence of circumstances relevant to the inference must be demonstrable as a sine qua non for action. If the circumstances are not shown, the action may be exposed to interference. Justice Shelat, agreeing in paragraph 63, noted that the words ‘reason to believe’ or ‘in the opinion of’ do not always lead to a wholly subjective process; the court may scrutinise whether the opinion was formed on relevant facts and within statutory limits., Dr. Rajiv Dhavan, learned senior counsel, contended that Indira Sawhney relied on a weak test and that constitutional reservations should be subjected to strict scrutiny. The two‑Judge Bench judgment of the Supreme Court of India in B.K. Pavitra and others v. Union of India, (2019) 16 SCC 129, held that when a committee or commission has carried out an exercise for collecting data, the Court must be circumspect in exercising judicial review to re‑evaluate the factual material on record., We also note the recent judgment of the Supreme Court of India in Mukesh Kumar and another v. State of Uttarakhand, (2020) 3 SCC 1, where Justice L. Nageswara Rao, speaking for the Bench, stated that the Court should show due deference to the opinion of the State, but this does not mean the opinion is beyond judicial scrutiny. The scope and reach of scrutiny in matters within the executive’s subjective satisfaction are extensively stated in Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295., The grant of reservation under Article 15(4) or Article 16(4) of the Constitution, whether by an executive order of a State or by legislative measures, is a constitutional measure intended to fulfil the principle of equality. Such measures can be examined to see whether they violate any constitutional principle or are inconsistent with Articles 14, 15 and 16. While the Court must give deference to the commission’s report, it is permissible to scrutinise whether any constitutional principle has been violated or any constitutional requirement has not been considered. As laid down in the V. Balram case, judicial scrutiny is also permissible to determine whether the material collected by the commission justifies the conclusions reached. We are conscious of the limitation on the Court’s scrutiny regarding factual data, but without doubting the manner and procedure of data collection, we will examine the report on the strength of the facts, materials and data collected by the commission., The question is whether the data of Marathas in public employment as found out by the Gaikwad Commission makes out a case for grant of reservation under Article 16(4) of the Constitution of India to the Maratha community. Reservation under Article 16(4) is an enabling power of the State to make any provision for reservation of appointment or posts in favour of an Other Backward Class of citizens who, in the opinion of the State, is not adequately represented in the services. The condition precedent is that the backward class is not adequately represented in the services of the State., The Constitution Bench of the Supreme Court of India in Indira Sawhney, while elaborating on Article 16(4), held that clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. The principle of proportionate representation is accepted only in Articles 330 and 332 for Scheduled Tribes and Scheduled Castes, and only for a limited period. Therefore, the theory of proportionate representation cannot be applied to backward classes, although the proportion of the population may be relevant., The objective behind clause (4) of Article 16 is to share power with backward classes that previously had no opportunity to be part of State services. Justice Jeevan Reddy, in paragraph 694 of Indira Sawhney, explained that the provision seeks to empower deprived backward communities by giving them a share in the administrative apparatus and governance of the State., The State, when providing reservation under Article 16(4) by executive action or legislation, must satisfy the condition precedent that the backward class is not adequately represented. The Constitution Bench in M. Nagaraj held that if the appropriate Government enacts a law providing for reservation without keeping in mind the parameters of Article 16(4) and Article 335, the Supreme Court will set aside such legislation. Paragraph 107 of the same judgment states that as long as the factors of backwardness, inadequacy and efficiency of administration are retained, the enabling provisions are not constitutionally invalid. However, if the State fails to identify and implement these controlling factors, excessiveness may result in reverse discrimination, which the Court must examine on the facts of each case., The word ‘adequate’ is a relative term used in relation to representation of different castes and communities in public employment. The objective of Article 16(4) is to bring backward classes into the mainstream and enable them to share State power through affirmative action. To determine adequate representation, the representation of the backward class must be contrasted with that of other classes, including forward classes. The Maratha community is one among many castes and communities in Maharashtra, which also includes Scheduled Castes, Scheduled Tribes, de‑notified tribes, nomadic tribes (categories B, C and D), Special Backward Category, Other Backward Classes, general categories and minorities., A rough estimate indicates that more than five hundred castes and communities live in Maharashtra, including Scheduled Castes and Scheduled Tribes, and seek representation in public services. The State cannot take any measure that violates the balance. The expression ‘inadequacy’ must be understood in this context., We now proceed to examine the report of the Gaikwad Commission, which in Chapter IX deals with the inadequacy of Marathas in the services of the State. Paragraph 214(b) states that information regarding recruitment status of all reserved classes and open categories in the services has been sought from the State Government and other state agencies., The Commission was aware of the constitutional conditions that must be complied with by the State for reserving posts in favour of a backward class. Paragraph 215 enumerates three non‑negotiable conditions: (i) the backward class is not adequately represented in the services of the State; (ii) the total reservation should not exceed fifty percent unless extraordinary and compelling circumstances are demonstrated with quantifiable data; and (iii) the reservation must be consistent with the maintenance of efficiency in the administration., The tables in the report present data as of 1 August 2018. Table A shows the strength of Marathas in government, public services, Panchayati Raj Institutions and Urban Local Bodies. The figures represent posts sanctioned, posts filled, vacant posts, and posts filled from open category, among other categories., According to Table A, posts filled amount to 49,190, of which open category posts are 28,048 and posts filled from the Maratha class are 9,321. This yields a representation of 33.23 percent of Maratha candidates in open category posts, contrary to the Commission’s stated figure of 11.86 percent. In Grade B, Marathas occupy 29.03 percent of open category posts; in Grade C, 37.06 percent; and in Grade D, 36.53 percent., The comparative chart shows the following percentages of Maratha representation in open category posts: Grade A – 33.23 percent; Grade B – 29.03 percent; Grade C – 37.06 percent; Grade D – 36.53 percent. These figures indicate that the representation of Marathas in public services across grades A to D is adequate and satisfactory. Consequently, the constitutional pre‑condition that a backward class is not adequately represented is not fulfilled. The State Government’s opinion, based on the Gaikwad Commission’s figures, therefore does not satisfy the constitutional requirement for granting reservation to the Maratha community., Tables B and C, presented in paragraphs 220 and 224, provide further details. Table B shows that out of 161 open category posts for the Indian Administrative Service, 25 are held by Maratha officers (15.52 percent). In the Indian Police Service, 39 of 140 open category posts are held by Marathas (27.85 percent), and in the Indian Foreign Service, 16 of 89 posts are held by Marathas (17.97 percent). The Commission’s percentages are reported as lower, which is erroneous., Table C, concerning Mantralaya cadres, shows that in Grade A, 93 of 248 open category posts are held by Marathas (37.5 percent); in Grade B, 415 of 793 (52.33 percent); in Grade C, 421 of 808 (52.10 percent); and in Grade D, 185 of 333 (55.55 percent).
id_886	9	The tabular chart for posts filled in open category, posts filled by Marathas and percentage is as follows: Grade No. of open category posts filled No. of posts filled from Maratha Class Percentage of Maratha in open category post. All the three tables A, B and C and percentage of Marathas who have competed from open category make it abundantly clear that they are adequately represented in the services. The Commission, although noted all the figures correctly in all the columns, committed an error in computing the percentage by adding posts available for open category as well as posts available for reserved categories. Maratha cannot claim to compete for the reserved category posts; hence, there is no question of computing their representation including the reserved category posts. The representation of Marathas has to be against open category posts, therefore their percentage has to be determined as compared to total open category filled posts, and the representation of Marathas in most of the Grades is above thirty percent. This is the basic error committed by the Commission in computing the percentage, which caused it to find their representation in services inadequate., There is one more fundamental error which has been committed by the Commission. The constitutional pre‑condition for providing reservation as mandated by Article 16(4) is that the backward class is not adequately represented in the public services. The Commission laboured under the misconception that unless the Maratha community is represented equivalent to its proportion, it is not adequately represented. In paragraph 219(c) of the Commission report it states: \The obvious conclusion that emerges from the above information is that in none of the four grades the strength of Maratha Class employees is touching the proportion to their population in the State, which is estimated at an average thirty percent. Their presence in administration is more at the lower grades of C and D and comparatively lesser at decision‑making levels of State administration in A and B grades.\, Indra Sawhney has categorically held that what is required by the State for providing reservation under Article 16(4) is not proportionate representation but adequate representation. The Commission thus proceeds to examine the entitlement under Article 16(4) on the concept of proportionate representation in the State services, which is a fundamental error committed by the Commission., The Government committed an error in accepting the recommendation without scrutinising the report with regard to the correct percentage of representation of Marathas in services. The constitutional pre‑condition as mandated by Article 16(4) being not fulfilled with regard to the Maratha class, both the Gaikwad Commission's report and consequential legislation are unsustainable. We thus hold that the Maratha class was not entitled to any reservation under Article 16(4) and that grant of reservation under Article 16(4) is unconstitutional and cannot be sustained., Social and Educational Backwardness of Maratha Community. We have noted above that three National Backward Classes Commissions and three State Backward Classes Commissions considered the claim of the Maratha community to be included in the Other Backward Classes but all commissions rejected such claim, holding that they belong to the forward community. The first National Backward Classes Commission, the Kaka Kalelkar Commission (30 March 1955), did not include the Maratha community in the list of backward communities. The Commission observed: \In Maharashtra, besides the Brahman it is the Maratha who claimed to be the ruling community in the villages and the Prabhu that dominated all other communities.\, The second National Backward Classes Commission, the Mandal Commission, included the Maratha community as a forward Hindu community. The National Commission on Backward Classes in the year 2000 examined the claim of the Maratha community to be included in the Other Backward Classes. The Commission held that the Maratha community is an advanced community of society and cannot be included with Kunbi under a separate entity of its own. Paragraphs 18, 19 and 22 of the Commission's report state that a community with a history of close association with the ruling classes, whose members historically enjoyed important economic and political rights, cannot be thought to have suffered social disadvantages. The report also notes that Marathas have sought and received recognition as belonging to the Kshatriya varna, but no community recognised generally as Kshatriya finds a place in a Backward Classes list., The modern history of Maharashtra shows the continued dominance of Marathas in its society and polity, evident from the fact that in the post‑Independence period the community provided the largest number of Chief Ministers. During the full Bench hearing on 14 December 1999, the Bench questioned the representatives of the Maratha community as to why, despite many Chief Ministers and important Ministers, the community had not sought inclusion in the Backward Classes list. The Bench observed that there is a distinct Maratha class, which is an advanced community, and therefore cannot be included in the list of Backward Classes. The Bench rejected the claim that some Maratha leaders obtained Kunbi caste certificates as a valid ground for inclusion, noting that no evidence was presented to support such allegations., We may also refer to the three State Backward Classes Commissions appointed by the State. In 1961, the Deshmukh Committee did not include the Maratha community in the list of backward communities. In 2001, the Khatri Commission rejected the demand of the Maratha community to be included in backward class communities. On 25 July 2008, the Bapat Commission, by majority, rejected the demand to include the Maratha community in the Other Backward Classes., After the Bapat Commission's report, the State Government appointed the Rane Committee, headed by a Cabinet Minister, which collected data and observed that the Maratha community may not be socially and educationally backward but recommended grant of reservation as an educationally and financially backward class. When a commission is appointed to examine the claim of a particular community to be included or excluded from a list of Other Backward Classes, it must look into contemporaneous data and facts. The State, to inform itself of the status of a particular community, appoints commissions or committees to take affirmative measures as ordained by the constitutional provisions of Articles 15 and 16. The relevant data is the status of the community as existing at the time of investigation and report., Supreme Court of India in Ram Singh and others v. Union of India (2015) 4 SCC 697 has categorically laid down in paragraph 49 that a decision which impacts the rights of many under Articles 14 and 16 of the Constitution must be taken on the basis of contemporaneous inputs and not outdated data. The Court observed that under Section 11 of the Act, revision of the Central Lists is contemplated every ten years, illuminating the necessity and relevance of contemporaneous data to the decision‑making process., We fully endorse the above view of Supreme Court of India. Any study of a committee or commission must regard the present status, since the object is to take affirmative actions in the present or future to help the particular community. The three National Backward Classes Commission reports of 1955, 1980 and 2000, and the three State Committee/Commission reports of 1961, 2001 and 2008, each reported the status of the Maratha community at the relevant time. The terms of reference of the Gaikwad Commission required it to collect contemporaneous data; the quantitative data referred to in the report were collected after 2014. The Commission's observations that it does not agree with earlier reports cannot be approved., It is always open to the State to collect relevant data to determine whether a particular caste or community should be included in or excluded from the list of Other Backward Classes, despite any earlier decision. The Constitution Bench in Indra Sawhney also laid down that periodic review is required so that communities which were earlier backward and have become advanced should be excluded, and those which were earlier advanced and have become backward should be included. Thus, the State was fully entitled to appoint a Backward Classes commission to collect relevant data and submit the report., When, over a period of about sixty years from 1955 to 2008, it was repeatedly held that the Maratha community is not a backward class, the Gaikwad Commission ought to have examined what, if anything, had changed to justify inclusion of the Maratha community in the OBC list. The Commission did not address this aspect. It should also have undertaken a comparative analysis of recent developments that might have caused the Marathas to become backward from a forward class. In this context, we may refer to the judgment of Supreme Court of India in Ram Singh (supra), where the National Backward Classes Commission rejected the claim of the Jat community to be included in the Other Backward Classes in several states. The Union, disregarding that report, issued a notification including Jats as OBC in the Central List. The Court held that the report of the National Backward Classes Commission could not be disregarded and must be given due weight. The Court further held that the perception of a self‑proclaimed socially backward class or the perception of advanced classes about the status of the less fortunate cannot continue to be a constitutionally permissible yardstick for determining backwardness under Articles 15(4) and 16(4). Backwardness must not be determined by mathematical formulae alone; it must cease to be relative, and inclusion must be limited to the most distressed., After the 2014 enactment, a writ petition was filed in the High Court challenging the 2014 Ordinance which declared the Maratha community as socially and educationally backward and provided separate reservation. The High Court heard all parties and passed an interim order in Writ Petition No. 2053 of 2014 on 14 November 2014, staying the Ordinance and the grant of separate reservation to the Maratha community. Paragraph 40(e) of the order stated that statistics compiled by Dr. Suhas Palshikar suggested that from 1962 to 2004, 55 percent of the 2,430 MLAs were Marathas; nearly 54 percent of the educational institutions in the State were controlled by Marathas; Marathas dominated university management by 60‑75 percent; 86 of 105 sugar factories were controlled by Marathas; 23 district cooperative banks had Maratha chairpersons; 71.4 percent of cooperative institutions were under Maratha control; and 75‑90 percent of the land in the State was owned by Marathas. These facts were not disputed by the respondents. It was also stated that since the establishment of the State of Maharashtra on 1 November 1956, out of 17 Chief Ministers, 12 have been Marathas, and the last non‑Maratha Chief Minister served from January 2003 to October 2004., The above facts were not disputed before the High Court, and the same facts have been reiterated before Supreme Court of India. The Commission in its report does not dispute that the Maratha community is a politically dominant class. The report extracts that political dominance cannot be a ground to determine social and educational backwardness of any community., We have already found that the Maratha community has adequate and sufficient representation in the public services. Representation of Marathas is present in all categories – Group A, Group B, Group C and Group D posts – and the Marathas have occupied the posts by competing in the open categories. In many grades the representation is about thirty percent of all filled open‑category posts. When a community can compete with open‑category candidates and obtain a substantial number of seats (about thirty percent), this is a relevant fact while considering social and educational backwardness. Even if the grant or non‑grant of reservation under Article 16(4) is not decisive for determining backwardness under Article 15(4), it is certainly relevant for consideration of whether a community is backward. The Commission erroneously viewed that the representation of the Maratha community in public services is not proportionate to their population and recommended reservation under Article 16(4). We have disapproved the grant of reservation under Article 16(4) to the Maratha community; that decision is relevant and will affect the Commission's finding that the Maratha community is socially and educationally backward. Sufficient and adequate representation of the Maratha community in public services is an indicator that they are not socially and educationally backward., The Commission, in Chapter VIII, analysed data of students belonging to the Maratha community pursuing engineering, medical and other disciplines. In paragraph 178 it recorded information on Marathas engaged in academic careers. For the academic years 2014‑15, 2015‑16 and 2016‑17, the Commission obtained data from the Directorate of Technical Education. Out of 167,168 open‑category diploma seats, Marathas secured 34,248 admissions; out of 221,127 open‑category graduate seats, they secured 32,045 admissions; and out of 63,795 open‑category postgraduate seats, they secured 12,666 admissions. Similar details were given for medical courses. In MBBS, out of 4,720 seats in 2015‑16, Marathas received 428 seats (9.1 percent). In other medical streams (Ayurveda, Unani, Siddha, Homeopathy and Nursing) out of 14,360 seats, they secured 2,620 seats., The Commission also gave details of medical postgraduate courses, indicating that Maratha students obtained admissions in both undergraduate and postgraduate streams, demonstrating success in open competition. The percentage of Maratha students, when calculated against open‑category seats (the other fifty percent being reserved), substantially increases, as shown by the Commission's own tables., The Commission studied representation of Marathas in prestigious Central services – Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Foreign Service (IFS) – for the State of Maharashtra. Out of 161 open‑category IAS posts, 25 were held by Marathas. Out of 140 open‑category IPS posts, 39 were held by Marathas. Out of 97 open‑category IFS posts, 16 were held by Marathas. The percentages are 15.52 percent for IAS, 27.85 percent for IPS and 17.97 percent for IFS, indicating substantial representation of Marathas in these services., These numbers pertain only to the State of Maharashtra; Maratha officers are likely to occupy similar posts in other states, although detailed data are not available., The Commission collected data on Maratha engagement in higher academic and educational fields of university assignments in the State (paragraph 226, Table D). Marathas occupied posts such as Head of Department, Professor, Associate Professor and Assistant Professor in several universities. While some universities may have few Maratha faculty in certain posts, the chart indicates that there are sufficient numbers of Marathas occupying senior academic positions across universities., The Commission concluded that only 4.3 percent of senior university posts (Head of Department, Professor, Associate Professor, Assistant Professor) at Savitribai Phule University, Pune, were held by Marathas. However, the fact that Marathas do not occupy all higher posts in proportion to their population does not establish that they are socially and educationally backward. The data and figures on Maratha students in engineering and medical streams, Maratha officers in IAS, IPS and IFS, and Maratha faculty in universities show that lack of proportionality to population alone cannot be the basis for declaring backwardness., We are conscious that the Commission conducted a sample survey, collected representations and other information, and assigned marks on social, educational and economic backwardness, concluding that Marathas were backward. Nevertheless, the data collected by the Commission clearly indicate that Marathas are neither socially nor educationally backward, and the conclusion recorded by the Gaikwad Commission on the basis of its marking system is not sufficient to support a finding of backwardness., The facts and figures noted above indicate otherwise, and on the basis of the data collected by the Commission we are of the view that the Commission's conclusion is not supportable. The data clearly prove that Marathas are not socially and educationally backward., We have completed more than seventy years of independence, and all governments have made efforts for overall development of all classes and communities. There is a presumption, unless rebutted, that all communities and castes have progressed. Supreme Court of India in Ram Singh v. Union of India (supra) observed in paragraph 52 that one may legitimately presume progressive advancement of all citizens on every front – social, economic and educational – and that any contrary view would amount to retrograde governance. Yet, the facts before us indicate a governmental affirmation of negative governance, as decisions not to treat the Jats as backward, arrived at after due consideration of ground realities, have been reopened despite evident all‑round development of the nation. This is the basic fallacy inherent in the impugned governmental decision challenged in the present proceedings., The Constitution (One Hundred and Second Amendment) Act, 2018 is relevant to the present controversy. I have had the advantage of reviewing the draft judgment circulated by my esteemed brother Justice Ravindra Bhat. Although we are both adamant on the question of constitutional validity of the Constitution (One Hundred and Second Amendment) Act, 2018, I regret my inability to agree with my brother's interpretation of the amendment., The appellant contends that after the 102nd Amendment to the Constitution, which came into force on 15 August 2018, the Maharashtra Legislature had no competence to enact the 2018 Act. After the 102nd Amendment, the States have no power to identify socially and educationally backward classes. The amendment brought the regime for backward classes in line with Articles 341 and 342. Article 366(26C) defines SEBCs as those backward classes deemed under Article 342A for the purposes of the Constitution. The expression \for the purposes of the Constitution\ is used in Articles 15(4), 16(4), 338B, 342A and other articles. Under Article 342A, SEBCs are those specified by the President by public notification for the purposes of a State or Union Territory. Article 342A, being analogous to Articles 341 and 342, must be interpreted in the same manner. Parliament inserted the phrase \Central List\ in clause (2) of Article 342A to emphasise that after the 102nd Amendment, the only list that shall be drawn for the purposes of SEBCs is the Central List drawn by the President., Learned counsel for the appellant argues that the Maharashtra Legislature lacked competence to enact the 2018 legislation after the 102nd Amendment. Learned senior counsel, Shri Gopal Sankaranarayanan, submitted that reliance on the Select Committee report of the Rajya Sabha for interpreting Article 342A is unwarranted., The submissions of the appellant have been stoutly refuted by the learned counsel for the State of Maharashtra and other States. Under Articles 15(4) and 16(4), the Union and the States have co‑equal powers to advance the interests of socially and educationally backward classes; therefore, any exercise of power by the Union cannot encroach upon the power of the State to identify such classes. The expression \for the purposes of the Constitution\ must be construed within the contours of the power that the Union is entitled to exercise with respect to entities, institutions, authorities and public sector enterprises under Union control. The power to identify and empower socially and educationally backward classes and to determine the extent of reservation required is vested in the State by the Constitution and recognised by judicial pronouncements, including Indra Sawhney.
id_886	10	The expression Central List occurring in Article 342A(2) relates to the identification under Article 342A(1) wherein the Central List will include the socially and educationally backward classes for the purposes of the Central Government. Any other interpretation would allow the legislative power of the State to be whittled down. Article 342A must be interpreted in its historical context. It is submitted that the Constitution One Hundred and Second Amendment has brought changes with regard to the Central List. The expression Central List is a well‑understood concept in service jurisprudence for reservation purposes of Other Backward Classes; there are two lists, the Central List and the State List., It is submitted that the Parliamentary Committee report and other materials throw considerable light on the intention of Parliament for inserting Article 342A in the Constitution. The constitutional amendment has to be interpreted in the light of the Parliamentary intention. The power of the State Government to legislate cannot be taken away without amendment of Articles 15 and 16. Parliament has not exercised its power to occupy the field of a State by clearly using the expression ‘Central List’ in sub‑clause (2). If the Constitution One Hundred and Second Amendment is interpreted in the manner the appellants are interpreting, the amendment shall be violative of the federal structure and shall be unconstitutional., We have, in this batch of cases, issued notice to learned Attorney General. The interpretation of the One Hundred and Second Amendment to the Constitution of India is in question. Shri K. K. Venugopal, learned Attorney General, submits that the Constitution Bench in Indra Sawhney, paragraph 847, had taken the view that there ought to be a permanent body, in the nature of a Commission or Tribunal, to which complaints of wrong inclusion or non‑inclusion of groups, classes and sections in the lists of Other Backward Classes can be made. He submitted that the Constitution Bench in Indra Sawhney directed the Government of India, each of the State Governments and the Administrations of Union Territories to constitute a permanent body for entertaining, examining and recommending upon requests for inclusion and complaints of over‑inclusion and under‑inclusion in the lists of Other Backward Classes of citizens., Learned Attorney General submits that in view of the above nine‑Judge Bench judgment of this Court it is inconceivable that any such amendment can be brought in the Constitution that no State shall have competency to identify the backward classes. Article 15(4) necessarily includes the power of identification. Under Article 12 of the Constitution, the State includes the Government and Parliament, and the Government and Legislature of each State. In the event the States have to deprive their rights under Articles 15(4) and 16(4) of the Constitution, a proviso had to be added. Articles 15(4) and 16(4) are the source of power to identify socially and educationally backward classes. The Constitution One Hundred and Second Amendment has not made any amendment by which the effect of Articles 15(4) and 16(4) has been impacted., He submits that the National Commission for Backward Classes Act, 1993 was passed by Parliament in obedience to the direction of Indra Sawhney. Section 2(c) of the Act defines lists which are clearly limited to the Central Government; learned Attorney General submits that Article 342A covers the Central Government list alone. Learned Attorney General has referred to the Select Committee report dated 17 July 2017 and submits that the Select Committee, after considering the response and clarification by the concerned Ministry, opined that the One Hundred and Second Amendment was not intended to take away the rights of the State to identify Other Backward Classes in their States. He submits that the rights of the State to identify Other Backward Classes for their States are untouched. Referring to the State of Punjab, learned Attorney General submits that there are two lists, the Central List which contains sixty‑eight Other Backward Classes and the State List which contains seventy‑one. With regard to the Scheduled Castes and Scheduled Tribes the President was given power in the Constitution, a power with which the State had no concern. There was no attempt by Parliament to modify Articles 15(4) and 16(4)., Learned Attorney General submits that Article 342A has to be read harmoniously with the other provisions of the Constitution. He also refers to a short affidavit filed by the Union of India in Writ Petition (C) No. 12 of 2021 – Dinesh B. vs. Union of India & Ors., wherein the Union has taken the stand that the power to identify and specify the socially and educationally backward classes lies with Parliament, only with reference to the Central List of socially and educationally backward classes. The State Governments may have their separate State Lists of socially and educationally backward classes in recruitment. Learned Attorney General adopts the same stand taken by the Union of India in the aforesaid affidavit. He reiterated that Parliament, by passing the constitutional amendment, has not taken away the power of the State to identify backward classes in their States., He further submits that there is no violation of the basic structure of the Constitution. Replying to the argument of learned counsel for the writ petitioner under clause (2) of Article 368, learned Attorney General submits that the power to identify backward classes is under Articles 15 and 16; there is no occasion to examine the Seventh Schedule to find the source of power. He submits that no amendments have been made in any of the Lists of the Seventh Schedule so as to attract the proviso to Article 368(2). He submits that the Constitution One Hundred and Second Amendment did not require ratification by the State Legislature., Before coming to the articles inserted by the Constitution One Hundred and Second Amendment, we need to notice the Statement of Objects and Reasons contained in the Constitution (One Hundred and Twenty‑Third Amendment) Bill, 2017 which was introduced in the Lok Sabha on 4 April 2017 and some details regarding the legislative process which culminated in the passing of the Constitution (One Hundred and Second Amendment) Act, 2018. When the Bill came for discussion to amend the Constitution of India, it was passed by the Lok Sabha on 10 April 2017. The Rajya Sabha, on motion adopted by the House on 11 April 2017, referred the Bill to the Select Committee for examination and report. The Select Committee of the Rajya Sabha examined the Bill by holding seven meetings. The Select Committee asked clarification on various issues from the Ministry and, after receipt of clarifications, submitted the report on 17 July 2017. The Constitution (One Hundred and Twenty‑Third Amendment) Bill, 2017 with the Select Committee report came for consideration before the Rajya Sabha. The Bill was passed with certain amendments on 31 July 2017 by the Rajya Sabha. After passing of the Bill, it was again taken by the Lok Sabha and was passed by the Lok Sabha on 2 August 2018. The Rajya Sabha agreed to the Bill on 6 August 2018., The Statement of Objects and Reasons of the Constitution One Hundred and Second Amendment are contained in the Constitution (One Hundred and Twenty‑Third Amendment) Bill, 2017. It is useful to extract the entire Statement of Objects and Reasons as contained in the Bill: The National Commission for the Scheduled Castes and Scheduled Tribes came into being consequent upon the passing of the Constitution (Sixty‑fifth Amendment) Act, 1990. The Commission was constituted on 12 March 1992, replacing the Commission for the Scheduled Castes and Scheduled Tribes set up under the Resolution of 1987. Under article 338 of the Constitution, the National Commission for the Scheduled Castes and Scheduled Tribes was constituted with the objective of monitoring all the safeguards provided for the Scheduled Castes and the Scheduled Tribes under the Constitution or other laws. Vide the Constitution (Eighty‑ninth Amendment) Act, 2003, a separate National Commission for Scheduled Tribes was created by inserting a new article 338A in the Constitution. Consequently, under article 338, the reference was restricted to the National Commission for the Scheduled Castes. Under clause (10) of article 338, the National Commission for Scheduled Castes is presently empowered to look into the grievances and complaints of discrimination of Other Backward Classes also., In 1992, the Supreme Court of India, in the matter of Indra Sawhney and others vs. Union of India and others (AIR 1993, SC 477), directed the Government of India to constitute a permanent body for entertaining, examining and recommending requests for inclusion and complaints of over‑inclusion and under‑inclusion in the Central List of Other Backward Classes. Pursuant to that judgment, the National Commission for Backward Classes Act was enacted in April 1993 and the National Commission for Backward Classes was constituted on 14 August 1993 under the said Act. At present the functions of the National Commission for Backward Classes are limited to examining requests for inclusion of any class of citizens as a backward class in the lists, hearing complaints of over‑inclusion or under‑inclusion, and tendering advice to the Central Government as it deems appropriate. In order to safeguard the interests of the socially and educationally backward classes more effectively, it is proposed to create a National Commission for Backward Classes with constitutional status at par with the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes., The National Commission for the Scheduled Castes has recommended in its Report for 2014‑15 that the handling of the grievances of the socially and educationally backward classes under clause (10) of article 338 should be given to the National Commission for Backward Classes. In view of the above, it is proposed to amend the Constitution of India, inter alia, to provide the following: (a) to insert a new article 338B so as to constitute the National Commission for Backward Classes which shall consist of a Chairperson, Vice‑Chairperson and three other members. The Commission will hear the grievances of socially and educationally backward classes, a function so far discharged by the National Commission for Scheduled Castes under clause (10) of article 338; and (b) to insert a new article 342A so as to provide that the President may, by public notification, specify the socially and educationally backward classes which shall for the purposes of the Constitution be deemed to be socially and educationally backward classes., By the Constitution One Hundred and Second Amendment, articles 338 sub‑clause (10), a new article 338B, article 342A and clause 366(26C) were inserted. In the writ petition before the High Court of India, the question was raised whether the Constitution (One Hundred and Second Amendment) Act, 2018 affects the competence of the Legislature to enact the impugned legislation. The High Court noticed the parliamentary process including the report of the Select Committee. The High Court held that the use of Central List in sub‑clause (2) of article 342A is not in vacuum but must take its due meaning in reference to the context. The High Court held that Parliament, being conscious of the fact that there are two lists operating in various States—first, for providing reservation prescribed by the Central Government in Central services, and second, for providing reservation by the respective State Governments—intended to retain the power to include or exclude from the Central List. The High Court further held that had Parliament intended to deprive the State of its power, it would have specifically mentioned so. The High Court rejected the submission of the learned counsel for the appellants that the Constitution One Hundred and Second Amendment denuded the power of the State to legislate with regard to other backward categories in respect of the State., We have also noticed that Writ Petition (C) No. 938 of 2020 – Shiv Sangram and another vs. Union of India and others, had been filed questioning the constitutional validity of the Constitution One Hundred and Second Amendment. We are concerned with the constitutional amendment brought by the Constitution (One Hundred and Second Amendment) Act, 2018. The amendment is not a normal legislative exercise; it is always carried out with an object and purpose. The Constitution of India is a grand norm given to us by the Framers with great deliberations and debates. It contains the objectives and goals of the nation and ideals for governance by the State., Justice G. P. Singh, in Principles of Statutory Interpretation, 14th Edition, under the heading ‘Intention of the Legislature’, explains statutory interpretation as follows: ‘A statute is an edict of the Legislature’ and the conventional way of interpreting a statute is to seek the ‘intention’ of its maker. A statute is to be construed according to the intent of those that make it and ‘the duty of judicature is to act upon the true intention of the Legislature – the mens or sententia legis’. The expression ‘intention of the Legislature’ is a shorthand reference to the meaning of the words used by the Legislature, objectively determined with the guidance furnished by the accepted principles of interpretation. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation which represents the true intention of the Legislature, i.e., the legal meaning or true meaning of the statutory provision., Chief Justice Sir Maurice Gwyer, speaking in the Federal Court, in The Central Province and Berar Sales of Motor Spirit and Lubricants Taxations Act, 1938, AIR 1939 Federal Court 1, held that the rules which apply to the interpretation of other statutes apply equally to the interpretation of constitutional enactments, although their application is conditioned by the subject‑matter of the enactment itself., On the interpretation of the Constitution of India, a Constitution Bench of this Court in ITC Ltd. vs. Agricultural Produce Market Committee and others (2002) 9 SCC 232 laid down the following proposition in paragraph 59: ‘The Constitution of India deserves to be interpreted, language permitting, in a manner that it does not whittle down the powers of the State Legislature and preserves federalism while also upholding Central supremacy as contemplated by some of its articles.’, It is said that a statute is an edict of the Legislature. The elementary principle of interpreting the Constitution or a statute is to look into the words used; when the language is clear, the intention of the Legislature is to be gathered from the language used. Aid to interpretation is resorted to only when there is some ambiguity in the words or expression used. The rule of harmonious construction, the rule of reading the provisions together, and the rule of giving effect to the purpose of the statute are called in question when aids to construction are necessary in a particular context. Paragraph 5 of the Statement of Objects and Reasons mentions amendment of the Constitution by (a) inserting a new article 338B to constitute the National Commission for Backward Classes and (b) inserting a new article 342A to provide that the President may, by public notification, specify the socially and educationally backward classes. The Bill was moved by Shri Thawarchand Gehlot, Minister of Social Justice and Empowerment., Learned counsel for both parties have advanced divergent submissions on the true and correct interpretation of the words ‘Central List’ as used in clause (2) of article 342A. Because the parties have advanced divergent submissions, it becomes necessary to take aid of interpretation. The purpose and object of the expression ‘Central List’ in sub‑clause (2) of article 342A has to be examined to find the correct meaning of the constitutional provision., We have noticed that learned Attorney General as well as learned counsel for the State of Maharashtra and other States have relied on the Select Committee report, debates in Parliament and the Statement of the Minister to find the intention of Parliament in inserting article 342A of the Constitution., Shri Gopal Sankaranarayanan, learned senior counsel for the petitioner, has questioned the admissibility of the Parliamentary Committee report. He submits that the Parliamentary Committee report is not admissible and cannot be used as an aid to interpretation. This submission has been refuted by Shri P. S. Patwalia, learned senior counsel, and Dr. A. M. Singhvi, learned senior counsel, who state that the Parliamentary Committee report as well as the Statement made by the Minister in Parliament are admissible aids to interpretation and are necessary to find the intention of Parliament in bringing the One Hundred and Second Amendment to the Constitution. We therefore proceed to look into the law as to the admissibility of reports of Parliamentary Committees and Statements of Ministers as aids to interpret a constitutional provision., Shri Gopal Sankaranarayanan, relying on the judgment of this Court in State of Travancore, Cochin and others vs. Bombay Company Ltd., AIR 1952 SC 366, submits that this Court observed that speeches made by members of the Constituent Assembly as external aid to constitutional interpretation are not admissible. He relies on paragraph 16 of that judgment, which states that the use of such speeches is unwarranted and that the rule of exclusion has been generally accepted in England and observed in Indian statutes. He further cites Aswini Kumar Ghose and another vs. Arabinda Bose and another, AIR 1952 SC 369, where this Court, referring to the earlier judgment, laid down that speeches made by members of the House in the course of debate are not admissible as extrinsic aids to the interpretation of statutory provisions., With regard to speeches in the Constituent Assembly, the Constitution Bench of this Court, in Kesavananda Bharati vs. State of Kerala (1973) 4 SCC 225, relied on Constituent Assembly debates for the interpretation of provisions of Part III and Part IV. Justice S. M. Sikri, Chief Justice, observed that speeches can be relied upon to see if the course of progress of a particular provision throws any light on the historical background or shows that a common understanding was arrived at between certain sections of the people. Justice Jaganmohan Reddy also held that in a constitutional matter the Court should look into the proceedings of the relevant date, including any speech which may throw light on ascertaining the intention of the framers., Justice K. K. Mathew, in paragraph 1598, held that debates in the Constituent Assembly can be looked into to understand the legislative history of a provision of the Constitution, including its derivation, to ascertain the intention of the makers of the Constitution. He observed that it would be an invisible distinction to permit reference to debates for legislative history but not for legislative intent in case of latent ambiguity., In R. S. Nayak vs. A. R. Antulay, 1984 (2) SCC 183, the argument was advanced that debates in Parliament or the report of a commission or committee which preceded the enactment is not a permissible aid to construction. Paragraph 32 of that judgment noted this view. However, paragraph 33 held that reference to such reports and recommendations is a legitimate external aid to ascertain the true meaning of ambiguous words in a statute. The modern approach has eroded the exclusionary rule even in England., Ultimately, this Court rejected the submission that the reports of the Committee were inadmissible. Paragraph 34 cited Black‑Clawson International Ltd. v. Papierwerke Waldhof‑Aschaffenburg AG [(1975) 1 All ER 810, 843], where Lord Simon of Clwyd observed that the statutory objective can eliminate many possible meanings and, if ambiguity remains, consideration of the statutory objective is a means of resolving it. The statutory objective is primarily to be collected from the provisions of the statute itself, but a report leading to the Act is a potent aid., Although the above Constitution Bench was subsequently overruled by a seven‑Judge Bench, the proposition was not touched. The Constitution Bench in Minerva Mills Ltd. and others vs. Union of India and others, (1980) 3 SCC 625, with Chief Justice Y. V. Chandrachud speaking, referred to a speech of the Law Minister made in Parliament and held that constitutional provisions cannot be read contrary to their proclaimed purpose as stated by the Minister. The Court observed that if Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited.
id_886	11	We may conclude the discussion on the topic by referring to a subsequent Constitution judgment of the Supreme Court of India in Kalpana Mehta and others vs. Union of India and others, (2018) 7 SCC 1, in which Justice Ashok Bhushan was also a member. In the above case, the Constitution Bench elaborately dealt with the role of Parliamentary Committee. One of the questions referred to before the Constitution Bench was whether, in a litigation filed before the Supreme Court of India under Article 32, the Court can refer to and place reliance upon the report of the Parliamentary Standing Committee., The Constitution Bench, referring to the earlier judgment of the Supreme Court of India in R.S. Nayak v. A.R. Antulay, laid down the following: The exclusionary rule is flickering in its dying embers in its native land of birth and has been given a decent burial by this Court. The basic purpose of all canons of the Constitution is to ascertain with reasonable certainty the intention of Parliament, and for that purpose external aids such as reports of Special Committees preceding the enactment, the existing state of law, the environment necessitating enactment of legislation and the object sought to be achieved, which Parliament held the luxury of availing, should not be denied to the Court whose primary function is to give effect to the real intention of the legislature in enacting a statute. Denial would deprive the Court of a substantial and illuminating aid to construction; therefore, the Court decided to depart from earlier decisions and held that reports of committees which preceded the enactment of a law, reports of Joint Parliamentary Committees and reports of commissions set up for collecting information can be referred to as external aids of construction. From the aforesaid, it is clear that the Court can take aid of the report of the Parliamentary Committee for the purpose of appreciating the historical background of the statutory provisions and can also refer to a committee report or the speech of the Minister on the floor of the House of Parliament if there is any ambiguity or incongruity in a provision of an enactment., Justice Dipak Misra, Chief Justice, speaking for himself and Justice A.M. Khanwilkar recorded his conclusion in paragraphs 159.1 and 159.2 to the following effect: Parliamentary Standing Committee report can be taken as aid for the purpose of interpretation of a statutory provision wherever it is necessary and it can also be taken note of as existence of a historical fact. Judicial notice can be taken of the Parliamentary Standing Committee report under Section 57(4) of the Evidence Act and it is admissible under Section 74 of the said Act., Justice D.Y. Chandrachud laid down the following in paragraph 260: The use of parliamentary history as an aid to statutory construction is an area which poses the fewest problems. In understanding the true meaning of the words used by the legislature, the Court may have regard to the reasons which led to the enactment of the law, the problems which were sought to be remedied and the object and purpose of the law. For this, the Court may seek recourse to background parliamentary material associated with the framing of the law., Justice Ashok Bhushan, in his concurring judgment, observed that various committees of both Rajya Sabha and Lok Sabha are entrusted with enormous duties and responsibilities in reference to the functions of Parliament. Maitland, in Constitutional History of England, while referring to the committees of the Houses of the British Parliament, noted: \Then again by means of committees the Houses now exercise what we may call an inquisitorial power. If anything is going wrong in public affairs a committee may be appointed to investigate the matter; witnesses can be summoned to give evidence on oath, and if they will not testify they can be committed for contempt. All manner of subjects concerning the public have of late been investigated by parliamentary commissions; thus information is obtained which may be used as a basis for legislation or for the recommendation of administrative reforms.\, After noticing the relevant Rules, it was held that parliamentary materials including reports and other documents are permissible to be given as evidence in courts of law. From the above discussion it is clear that, as a matter of fact, parliamentary materials including reports and other documents have been sent from time to time by the permission of Parliament itself to be given as evidence in courts of law., Noticing the observation of the House of Lords in Pepper (Inspector of Taxes) v. Hart, it was held that reference to parliamentary materials for the purpose of construing legislation does not breach Article 9 of the Bill of Rights (1688). Lord Wilkinson stated that, as a matter of pure law, the House should look at Hansard and give effect to the parliamentary intention it discloses in deciding the appeal, and that such reference does not infringe the privileges of the House of Commons., The Supreme Court of India has relied on parliamentary proceedings, including reports of the Standing Committee of Parliament, in a large number of cases. Examples include Catering Cleaners of Southern Railway v. Union of India (1987) 1 SCC 700, Gujarat Electricity Board v. Hind Mazdoor Sabha, State of Maharashtra v. Milind (2001) 1 SCC 4, Federation of Railway Officers Association v. Union of India (2003) 4 SCC 289, Aruna Roy v. Union of India (2002) 7 SCC 368, M.C. Mehta v. Union of India (2017) 7 SCC 243, Kishan Lal Gera v. State of Haryana (2011) 10 SCC 529, Modern Dental College & Research Centre v. State of Madhya Pradesh, and Babu Priyadarshi v. Amritpal Singh (2015) 16 SCC 795., The above discussion makes it clear that the law is well settled in this country that Parliamentary Committee reports, including speeches given by the Minister in Parliament and the debates, are relevant materials to ascertain the intention of Parliament while constituting constitutional provisions. Accordingly, the objection of Shri Gopal Sankaranarayanan that Parliamentary Committee reports and the speech of the Minister cannot be looked into for ascertaining the intention of Parliament in bringing the Constitution (102nd Amendment) is rejected., The intention of Parliament for bringing a constitutional amendment is necessary to be found out to interpret the amendment. The words used in a constitutional amendment have to be interpreted in the context for which they were used. Justice Holmes, in Towne v. Eisner, 245 US 418, observed that a word is not crystal, transparent and unchanged; it is a skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used. The context in which the words \Central List\ have been used in Article 342A(1) and the intent of Parliament in inserting Article 342A are relevant for purposes of constitutional interpretation., The parliamentary process that culminated in the passage of the Constitution (102nd Amendment) Act, 2018 began with the introduction of the Constitution (123rd Amendment) Bill, 2017 in the Lok Sabha on 02 April 2017, which was passed in the Lok Sabha on 10 April 2017. When the Bill reached the Rajya Sabha, a motion adopted on 11 April 2017 referred the Bill to a Select Committee comprising 25 members of the Rajya Sabha. The Select Committee held seven meetings before submitting its report., In the first meeting of the Committee held on 17 April 2017, the Ministry of Social Justice and Empowerment placed certain clarifications of the Minister, which were incorporated in paragraph 6 of the minutes: The Central List provides for education and employment opportunities in Central Government institutions, whereas the State List allows the States to include or exclude any category they wish in their Backward Classes List. Consequently, a category not found in the Central List may still be found in the State List, which remains the prerogative of the State Backward Classes Commission., The Committee, in its meeting on 22 May 2017, asked for clarifications on the extent to which the rights of the States would be affected by the Bill. In its sixth meeting on 03 July 2017, a proposed amendment to insert a new sub‑clause (10) in Article 338B was noted in paragraph 21 of the minutes, but the amendment was not accepted because the Ministry clarified that the power of the State was not affected. Paragraphs 21, 22 and 23 record the discussion and the decision to adopt clause 3 without amendment., The Committee also considered amendments to Article 342A, recorded in paragraph 24. The proposed modifications included: (h) changing sub‑clause (1) to empower the President, on the request of a Governor, to specify socially and educationally backward classes for reservation in central offices and institutions; (ii) allowing the President, on the advice of the National Commission for Backward Classes, to include or exclude classes from the Central List; inserting clause (3) to enable a Governor to specify classes for reservation in state offices and institutions; and inserting clause (4) to allow a Governor, on the advice of the State Commission for Backward Classes, to include or exclude classes from the State List., The Committee did not accept any of the amendments in view of the explanation furnished by the Ministry. In the seventh meeting held on 14 July 2017, the Secretary of the Ministry of Social Justice and Empowerment clarified that conferring constitutional status on the National Commission for Backward Classes would not take away the existing powers of the State Backward Classes Commissions. The only difference would be that, with respect to the Central List, the power of inclusion or exclusion after the constitutional amendment would come to Parliament with the recommendations of the Commission., Paragraphs 47 and 48 of the Committee's report reiterate that the proposed amendment to insert sub‑clause (10) in Article 338B was not accepted because it does not interfere with the State Government's power to identify socially and educationally backward classes, and the existing powers of the State Backward Classes Commission will continue even after the passage of the Constitution (123rd Amendment) Bill, 2017., In paragraph 67 the Committee observed that the amendments do not in any way affect the independence and functioning of State Backward Classes Commissions, and they will continue to exercise their powers of inclusion and exclusion of backward classes with respect to the State List unhindered., During the Rajya Sabha debate, members expressed apprehension that the amendment might adversely affect the rights of the States. Shri Thawarchand Gehlot, Minister of Social Justice and Empowerment, proposed the Bill. Shri B.K. Hari Prasad warned that the amendment could centralise powers, diminish the role of State commissions, and be detrimental to OBCs, arguing that the States are better placed to identify castes and communities., Shri Bhupender Yadav, in his speech, stated that the amendment poses a threat to federalism and the interests of the States. He highlighted that about five and a half thousand castes are on the Central List and ten and a half thousand on the State Lists, and that the Commission's role is limited to the Central List, leaving State rights intact and strengthening the federal structure., Shri Dilip Kumar Tirkey (Odisha) emphasized that the power to identify OBCs remains with the States. He argued that each State has its own OBC list reflecting local conditions, and that the National Commission should not override State authority. He called for a provision that any addition or deletion of a caste from the OBC list should be done only on the recommendation of the concerned State government, with periodic review every ten years., T.K. Rangarajan and Shri Pradeep Tamta also expressed apprehension that Article 342A would take away the existing powers of the States to notify the list of socially and educationally backward classes. After the debate, the Bill was passed in the Rajya Sabha., The Minister, Shri Thawarchand Gehlot, after the debate, stated that the apprehension that State powers would be affected and the federal structure damaged is incorrect. He explained that the amendment creates a National Commission for Backward Classes with powers analogous to those of the SC and ST Commissions, but does not alter the States' authority to include or exclude OBCs in their own lists, nor does it affect Articles 15, 16, 341, 342 or the provisions of Article 366 concerning caste definitions., The Constitution (102nd Amendment) Act, 2018 was passed by the Rajya Sabha on 31 July 2017, taken up by the Lok Sabha on 2 August 2017, and again passed by the Lok Sabha on 2 August 2018. It received the President's assent on 11 August 2018 and was notified with effect from 15 August 2018. The Act inserted Article 338B, Article 342A and Article 366(26C). Article 338B establishes the National Commission for Backward Classes with a Chairperson, Vice‑Chairperson and three other members appointed by the President, and outlines its powers to investigate, monitor, advise, and report on safeguards for socially and educationally backward classes., Article 338B(5) details the duties of the Commission, including investigating matters relating to safeguards for socially and educationally backward classes, inquiring into specific complaints of deprivation of rights, advising on socioeconomic development, presenting annual reports to the President, making recommendations for effective implementation of safeguards, and performing other functions as may be specified by the President subject to any law made by Parliament.
id_886	12	The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non‑acceptance, if any, of any of such recommendations. Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the State Government which shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non‑acceptance, if any, of any of such recommendations. The Commission shall, while investigating any matter referred to in sub‑clause (a) or inquiring into any complaint referred to in sub‑clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely: summoning and enforcing the attendance of any person from any part of India and examining him on oath; requiring the discovery and production of any document; receiving evidence on affidavits; requisitioning any public record or copy thereof from any court or office; issuing commissions for the examination of witnesses and documents; any other matter which the President may, by rule, determine. The Union and every State Government shall consult the Commission on all major policy matters affecting the socially and educationally backward classes., Article 342A. The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification., Article 366(26C) \socially and educationally backward classes\ means such backward classes as are so deemed under article 342A for the purposes of this Constitution., After noticing the principles of statutory interpretation of the Constitution and aids which can be resorted to in case of any ambiguity in a word, we now proceed to look into the constitutional provisions inserted by the Constitution (One Hundred and Second Amendment) Act., The first article which has been inserted by the Constitution (One Hundred and Second Amendment) Act is Article 338B. The statement of objects and reasons of the Constitution (One Hundred and Twenty‑Third Amendment) Bill, 2017, we had noticed above, in which one of the objects of the constitutional amendment was: in order to safeguard the interests of the socially and educationally backward classes more effectively, it is proposed to create a National Commission for Backward Classes with constitutional status at par with the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes., Prior to the Constitution (One Hundred and Second Amendment), there was already existing a National Commission for Backward Classes under the National Commission for Backward Classes Act, 1993 (in short 1993 Act), which was a statutory commission. To comprehend the role and functions of the National Commission for Backward Classes created by the Constitution (One Hundred and Second Amendment) Act, we need to notice the difference between the role and functions of the statutory commission and the constitutional commission. Section 9 of the 1993 Act provided for the functions of the Commission, which is to the following effect: Functions of the Commission. (1) The Commission shall examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over‑inclusion or under‑inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. (2) The advice of the Commission shall ordinarily be binding upon the Central Government., Section 11 provides for periodical revision of the list by the Central Government which is to the following effect: Periodic revision of lists by the Central Government. (1) The Central Government may at any time, and shall, at the expiration of ten years from the coming into force of this Act and every succeeding period of ten years thereafter, undertake revision of the lists with a view to excluding from such lists those classes who have ceased to be backward classes or for including in such lists new backward classes. (2) The Central Government shall, while undertaking any revision referred to in sub‑section (1), consult the Commission., The 1993 Act indicates that functions of the Commission were confined to only examine requests for inclusion or exclusion from the list of backward classes. The list was defined in Section 2C of the 1993 Act to mean the list for reservation for appointment of backward class in the services under the Government of India. Article 338B now inserted provides a much larger and comprehensive role to the Commission. The 1993 Act required the Commission to give advice only to the Central Government. Article 338B now requires the Commission to give advice both to the Central Government and to the States, which is clear from sub‑clauses (5), (7) and (9) of Article 338B, which is quoted as below:, It shall be the duty of the Commission (a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes; (c) to participate and advise on the socio‑economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports the recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio‑economic development of the socially and educationally backward classes; and (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the socially and educationally backward classes as the President may, subject to the provisions of any law made by Parliament, by rule specify., Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the State Government which shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non‑acceptance, if any, of any of such recommendations., The Union and every State Government shall consult the Commission on all major policy matters affecting the socially and educationally backward classes., The most important difference which is now brought by Article 338B is sub‑clause (9), which mandates that every State Government consult the Commission on all major policy decisions affecting socially and educationally backward classes. Sub‑clause (9) is engrafted in mandatory form by using the expression \shall\. The States thus are now bound to consult the Commission on all major policy matters affecting socially and educationally backward classes. For the purposes of this case, we need not elaborate on the expression \policy matter\ occurring in sub‑clause (9) of Article 338B. However, in the facts of the present case, the decision of the Maharashtra Government which culminated in the 2018 Act to exceed the ceiling limit of fifty percent fixed for reservation as per existing law and to give separate reservation to Maratha in employment under the State and in educational institutions of the State is a policy decision within the meaning of clause (9) of Article 338B., The word \consultation\ occurring in sub‑clause (9) is an expression which has been used in several articles of the Constitution i.e. Article 124, Article 207, Article 233, Article 234, Article 320 and a host of other articles. We may notice the content and meaning of the expression \consultation\., The Black's Law Dictionary, 10th Edition, defines consultation as follows: Consultation, n. (15c) 1. The act of asking the advice or opinion of someone (such as a lawyer). 2. A meeting in which parties consult or confer. 3. International law. The interactive methods by which states seek to prevent or resolve disputes. – consult, vb. – consulting, consultative, adj. Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition, defines consult: Consult implies a conference of two or more persons or the impact of two or more minds brought about in respect of a topic with a view to evolve a correct or at least a satisfactory solution. It must be directed to the essential points of the subject under discussion and enable the consultor to consider the pros and cons before coming to a decision. The consultation may be between an uninformed person and an expert or between two experts., The consultation or deliberation is not complete or effective unless parties thereto make their respective points of view known to the others and examine the relative merit of their view. The consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points involved. The consultation has to be meaningful, effective and conscious., In Chandramouleshwar Prasad versus the Patna High Court and others, (1969) 3 SCC 56, the Supreme Court of India had occasion to consider the expression \consultation\ as occurring in Article 233 of the Constitution. The Constitution Bench of the Supreme Court of India, explaining the expression \consultation\, held that consultation is not an empty formality and it should be complete and effective. The following was laid down in paragraph 7 of the judgment: Consultation with the High Court under Article 233 is not an empty formality. So far as promotion of officers to the cadre of District Judges is concerned the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion. The Governor cannot discharge his function under Article 233 if he makes an appointment of a person without ascertaining the High Court’s views in regard thereto. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter‑proposal in his mind which is not communicated to the proposer, the direction to give effect to the counter‑proposal without anything more, cannot be said to have been issued after consultation. In our opinion, the notification of 17 October 1968 was not in compliance with Article 233 of the Constitution. In the absence of consultation the validity of the notification of 17 October 1968 cannot be sustained., In Union of India versus Shankalchand Himatlal Sheth and another, (1977) 4 SCC 193, the Constitution Bench of the Supreme Court of India had occasion to examine Article 222 and the expression \consult\. Explaining the word \consult\, Justice Y. V. Chandrachud, in paragraphs 38 and 39, laid down the following: \consult\ is defined as \to discuss something together, to deliberate\. Corpus Juris Secundum also says that the word \consult\ is frequently defined as meaning \to discuss something together, or to deliberate\. Quoting Rollo v. Minister of Town and Country Planning and Fletcher v. Minister of Town and Country Planning, Stroud's Judicial Dictionary says in the context of the expression \consultation with any local authorities\ that \Consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other side, a sufficient opportunity must be given to the local authority to tender advice\. Thus, deliberation is the quintessence of consultation. That implies that each individual case must be considered separately on the basis of its own facts. Policy transfers on a wholesale basis which leave no scope for considering the facts of each particular case and which are influenced by one‑sided governmental considerations are outside the contemplation of our Constitution. It may not be a happy analogy, but it is common sense that he who wants to \consult\ a doctor cannot keep facts up his sleeve. He does so at his peril for he can receive no true advice unless he discloses facts necessary for diagnosis of his malady. A decision of the Madras High Court in R. Pushpam & Anr. v. State of Madras provided a good parallel. Section 43(b), Madras District Municipalities Act, 1920, provided that for the purpose of election of Councillors to a Municipal Council, the Local Government \after consulting the Municipal Council\ may determine the wards in which reserved seats shall be set apart. While setting aside the reservation made in respect of one of the wards on the ground that the Local Government had failed to discharge its statutory obligation of consulting the Municipal Council, Justice K. Subba Rao, then of the Madras High Court, observed: \The word 'consult' implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution.\ In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision., In Indian Administrative Services (S.C.S.) Association, Uttar Pradesh and Others, (1993) Supp. (1) SCC 730, the Supreme Court of India had occasion to explain the expression \consultation\ as occurring in the All India Services Act, 1951. In paragraph 26, the following conclusions were recorded by the Supreme Court of India: Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points involved to evolve a correct or at least satisfactory solution. There should be meeting of minds between the proposer and the persons to be consulted on the subject of consultation. There must be definite facts which constitute the foundation and source for final decision. The object of the consultation is to render consultation meaningful to serve the intended purpose. Prior consultation in that behalf is mandatory., The word \consultation\ as occurring in Articles 124, 216, 217 and 222 came for consideration before the Constitution Bench of the Supreme Court of India in Supreme Court Advocates on Record Association and others versus Union of India, (1993) 4 SCC 441. Justice Ratnavel Pandian delivering a concurring opinion has elaborately dealt with the consultation. In paragraph 112, the following has been stated: It is clear that under Article 217(1), the process of \consultation\ by the President is mandatory and this clause does not speak of any discretionary \consultation\ with any other authority as in the case of appointment of a Judge of the Supreme Court as envisaged in Clause (2) of Article 124. The word \consultation\ is powerful and eloquent with meaning, loaded with undefined intonation and it answers all the questions and all the various tests including the test of primacy to the opinion of the Chief Justice of India. This test poses many tough questions, one of them being, what is the meaning of the expression \consultation\ in the context in which it is used under the Constitution., When the constitutional provision uses the expression \consultation\ which consultation is to be undertaken by a constitutional authority like the National Commission for Backward Classes in the present case, the consultation has to be meaningful, effective with all relevant materials and information placed before the Commission. As observed above, the National Backward Class Commission has been given constitutional status under Article 338B and has now been entrusted with numerous functions regarding the backward classes. The Commission is now to advise not only the Union Government but the State Government also and various measures as enumerated in sub‑clause (5). The objective of sub‑clause (9) of Article 338B is to ensure that even the States do not take any major policy decision without consulting the Commission who is competent to provide necessary advice and solution keeping in view the larger interest of backward classes. We thus are of the considered opinion that the consultation by the State on all policy matters affecting the socially and educationally backward classes is now mandatory as per sub‑clause (9) of Article 338B which mandatory requirement cannot be bypassed by any State while the State takes any major policy decision., It is true that the expression \consultation\ in sub‑clause (4) of Article 338B is not to be read as concurrence but, as held above, consultation has to be effective and meaningful. The object of consultation is that the consultee shall place the relevant material before the person from whom consultation is asked for and advice and opinion given by the consulting authority shall guide the authority who has asked for consultation., The regime which was invoked prior to insertion of Article 342A was that the central list was issued by the Central Government under the 1993 Act and State lists were issued by State Governments. It was also open for the State to request for exclusion or inclusion from the list of OBCs of the Central list. The same procedure is to be followed even after insertion of Article 342A with regard to the Central list., The appellants insist that Article 342A has to be given a literal interpretation. The plain language of an article has to be given full effect irrespective of the intention of Parliament as claimed by the Attorney General as well as the learned counsel for the State. The submission of the appellants is that Article 342A borrows the same scheme as is delineated in Articles 341 and 342 of the Constitution. It is submitted that when Article 342A borrows the same scheme, which is clear from the fact that sub‑clause (1) of Article 342A is para‑materia with Articles 341(1) and 342(1), it is clearly meant that power to identify educationally and socially backward classes is only with the President but after consultation with the Governor of the State. It is submitted that the expression \the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory\ has to be given meaning and it is only the list issued by public notification under sub‑clause (1) which is the list of backward classes of a State or Union territory. No other list is contemplated. Hence, the State has no authority or jurisdiction to identify backward classes or issue any list that is so‑called State List. Further, interpreting sub‑clause (2) of Article 342A, it is submitted that use of the expression \Central List\ in sub‑clause (2) is only to refer to the list specified by the notification in sub‑clause (1) of Article 342A and the expression \Central List\ has been used in the above context., Elaborating the argument, it is further contended that the definition given in Article 366(26C) which provides that \socially and educationally backward classes\ means such backward classes as are so deemed under Article 342A for the purposes of this Constitution, the use of the expression \for the purposes of this Constitution\ clearly means that it is for Articles 15 and 16 also, the list which is referred to under Article 342A has to be utilised. The definition under Article 366(26C) does not contemplate any other list apart from the list under Article 342A., In contrast with the above interpretation put by the petitioner, the learned Attorney General and learned counsel for the State submit that the constitutional provision is to be interpreted as per the intention of Parliament and Parliament having never intended to take away the power of the State to identify backward classes in the State for the purpose of employment in the State, Article 342A cannot be read in the manner claimed by the appellants. The use of the expression \Central List\ under sub‑clause (2) of Article 342A is decisive since Parliament clearly intended to confine the list as contemplated by Article 342A(1) as a Central List for the purposes of employment in the Central Government services and Central Government organisations., Primarily the language employed in a statute and the constitutional provision is a determinative factor of legislative intention. The legislative intention opens two clues. Firstly, the meaning of the word in the provision and secondly, the purpose and object pervading through the statutes. It is well settled that the primary rule of construction is that the intention of the legislation must be found in the words used by the Legislature itself. The Supreme Court of India, apart from the above well‑settled principles of statutory interpretation, has laid down some further rules of interpretation to interpret the constitutional provision. We may profitably refer to a Constitution Bench judgment of the Supreme Court of India in State (National Capital Territory) of Delhi versus Union of India and another, 2018 (8) SCC 501. The Constitution Bench in the above case had occasion to interpret the constitutional provision of Article 239AA which was inserted by the Constitution (Sixty‑Ninth Amendment) Act, 1991. The Constitution Bench of the Supreme Court of India interpreted Article 239‑AA by referring to principles of constitutional objectivity, federal functionalism, democracy and pragmatic federalism. Justice Dipak Misra, Chief Justice, speaking for himself, A. K. Sikri and A. M. Khanwilkar, JJ., laid down that although, primarily, it is a literal rule which is considered to be the norm while interpreting statutory and constitutional provisions, yet mere allegiance to the dictionary or literal meaning of words contained in the provisions sometimes does not serve the purpose of a living document. In paragraph 135 the following was laid down: The task of interpreting an instrument as dynamic as the Constitution assumes great import in a democracy. The constitutional courts are entrusted with the critical task of expounding the provisions of the Constitution and further while carrying out this essential function, they are duty‑bound to ensure and preserve the rights and liberties of the citizens without disturbing the very fundamental principles which form the foundational base of the Constitution. Although, primarily, it is the literal rule which is considered to be the norm which governs the courts of law while interpreting statutory and constitutional provisions, yet mere allegiance to the dictionary or literal meaning of words contained in the provision may, sometimes, annihilate the quality of poignant flexibility and requisite societal progressive adjustability. Such an approach may not eventually subserve the purpose of a living document., The Constitution Bench further observed that a theory of purposive interpretation has gained importance where the courts shall interpret the Constitution in a purposive manner so as to give effect to its intention. In paragraphs 149, 150, 155 and 156 the following was laid down: Having stated the principles relating to constitutional interpretation we, as presently advised, think it apt to devote some space to purposive interpretation in the context, for we shall refer to the said facet for understanding the core controversy. It needs no special emphasis that the reference to some precedents has to be in juxtaposition with other concepts and principles. As it can be gathered from the discussion as well as the authorities cited above, the literal rule is not to be the primary guiding factor in interpreting a constitutional provision, especially if the resultant outcome would not serve the fructification of the rights and values expressed in the Constitution. In this scenario, the theory of purposive interpretation has gained importance where the courts shall interpret the Constitution in a purposive manner so as to give effect to its true intention. The Judicial Committee in Attorney General of Trinidad and Tobago v. Whiteman (1991) 2 AC 240 observed: The language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit. In S. R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126, a three‑Judge Bench has opined that constitutional provisions are required to be understood and interpreted with an object‑oriented approach and a Constitution must not be construed in a narrow and pedantic sense. The Court, while holding that the Constituent Assembly debates can be taken aid of, observed the following: 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. The emphasis on context while interpreting constitutional provisions has burgeoned this shift from the literal rule to the purposive method in order that the provisions do not remain static and rigid. The words assume different incarnations to adapt themselves to the current demands as and when the need arises. The House of Lords in R. (Quintavalle) v. Secretary of State for Health, (2003) 2 AC 687 observed: The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commissioners v. Adamson (1877) LR 2 AC 743. In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context. Emphasising the importance of determining the purpose and object of a provision, Learned Hand, J. in Cabell v. Markham, 148 F.2d 737 (2d Cir 1945) enunciated: Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning., The shift from the literal rule to purposive and objective interpretation of a constitutional document is adopted since the Constitution is not to be interpreted in a static and rigid manner; the Constitution is an organic and living document which needs to be interpreted with cardinal principles and objectives of the Constitution. The shift from literal to purposive method of interpretation has been now more and more adopted for interpreting a constitutional document. The Constitution Bench in State (National Capital Territory of Delhi) case has also noticed one more principle which is to be applied for interpretation of a constitutional document that is constitutional culture and pragmatism. In paragraphs 165, 166 and 169 the following was held: The constitutional courts, while interpreting the constitutional provisions, have to take into account the constitutional culture, bearing in mind its flexible and evolving nature, so that the provisions are given a meaning which reflect the object and purpose of the Constitution. History reveals that in order to promote and nurture this spirit of constitutional culture, the courts have adopted a pragmatic approach of interpretation which has ushered in an era of constitutional pragmatism. Further, the Court also highlighted that a balance between idealism and pragmatism is inevitable in order to create a workable situation ruling out any absurdity that may arise while adopting either one of the approaches: Supreme Court Advocates‑on‑Record Association case, (2016) 5 SCC 1, SCC pp. 320‑31 & 611, paras 145 & 468. The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non‑arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated to make the system workable in a satisfactory manner.
id_886	13	It is this pragmatic interpretation of the Constitution that was postulated by the Constituent Assembly, which did not feel the necessity of filling up every detail in the document, as indeed it was not possible to do so. Justice Dipak Misra in the Constitution Bench further laid down in paragraph 284.11: In the light of the contemporary issues, the purposive method has gained importance over the literal approach and the constitutional courts, with the vision to realise the true and ultimate purpose of the Constitution not only in letter but also in spirit and armed with the tools of ingenuity and creativity, must not shy away from performing this foremost duty to achieve constitutional functionalism by adopting a pragmatic approach. It is, in a way, exposition of judicial sensibility to the functionalism of the Constitution which we call constitutional pragmatism. The spirit and conscience of the Constitution should not be lost in grammar and the popular will of the people which has its legitimacy in a democratic set‑up cannot be allowed to lose its purpose in simple semantics., In the above judgment the Constitution Bench laid down that the purposive method has gained importance over the literal approach. Justice Ashok Bhushan, while delivering a concurring judgment in the Constitution Bench judgment of State (NCT of Delhi), also laid down that constitutional interpretation has to be purposive taking into consideration the need of time and constitutional principles. It was further held that the intent of the Constitution framers and the object and purpose of a constitutional amendment always throw light on the constitutional provisions. Paragraph 537 states: From the above discussions, it is apparent that constitutional interpretation has to be purposive taking into consideration the need of time and constitutional principles. The intent of the Constitution framers and the object and purpose of a constitutional amendment always throw light on the constitutional provisions but for interpreting a particular constitutional provision, the constitutional scheme and the express language employed cannot be given a go‑by. The purpose and intent of the constitutional provisions have to be found from the very constitutional provisions which are up for interpretation. While interpreting Article 239‑AA we have to keep in mind the purpose and object for which the Sixty‑ninth Constitution (Amendment) Act, 1991 was brought into force. After noticing the above principles, we now proceed further to examine the nature and content of the constitutional provisions., We may also notice a seven‑Judge Bench judgment of the Supreme Court of India on principles of interpretation of the Constitution. In Abhiram Singh v. C.C. Commachen (Dead) By Legal Representatives and others, (2017) 2 SCC 629, Justice Madan B. Lokur, with whom Justice T.S. Thakur, Chief Justice and Justice S.A. Bobde concurred, noticed the conflict between a literal interpretation and a purposive interpretation. It was held that interpretation has, therefore, to consider not only the context of the law but the context in which the law is enacted. Justice Lokur extracted Bennion on Statutory Interpretation in paragraph 38 to the following effect: In Bennion on Statutory Interpretation (6th Edn. Indian Reprint, p. 847) it is said that: General judicial adoption of the term purposive construction is recent, but the concept is not new. Viscount Dilhorne, citing Coke, said that while it is now fashionable to talk of a purposive construction of a statute the need for such a construction has been recognized since the seventeenth century. The difficulties over statutory interpretation belong to the language, and there is unlikely to be anything very novel or recent about their solution. Little has changed over problems of verbal meaning since the Barons of the Exchequer arrived at their famous resolution in the Heydon case (1584) 3 Co Rep 7a : 76 ER 637. Legislation is still about remedying what is thought to be a defect in the law. Even the most progressive legislator, concerned to implement some wholly normal concept of social justice, would be constrained to admit that if the existing law accommodated the notion there would be no need to change it., Approving the purposive construction the Supreme Court of India also held that a pragmatic view is required to be taken and the law interpreted purposefully. Paragraph 39 observes: We see no reason to take a different view. Ordinarily, if a statute is well drafted and debated in Parliament there is little or no need to adopt any interpretation other than a literal interpretation of the statute. However, in a welfare State like ours, what is intended for the benefit of the people is not fully reflected in the text of a statute. In such legislations, a pragmatic view is required to be taken and the law interpreted purposefully and realistically so that the benefit reaches the masses., Justice T.S. Thakur delivering his concurring opinion in paragraph 74 held that an interpretation which has the effect of diluting the constitutional objective should be avoided and the purpose of the Constitution be kept in mind. Paragraph 74 states: The upshot of the above discussion clearly is that under the constitutional scheme mixing religion with State power is not permissible while freedom to practice, profess and propagate religion of one's choice is guaranteed. The State being secular in character will not identify itself with any one of the religions or religious denominations. This necessarily implies that religion will not play any role in the governance of the country which must at all times be secular in nature. The elections to the State Legislature or to Parliament or for that matter any other body in the State is a secular exercise just as the functions of the elected representatives must be secular in both outlook and practice. Suffice it to say that the constitutional ethos forbids mixing of religions or religious considerations with the secular functions of the State. This necessarily implies that interpretation of any statute must not offend the fundamental mandate under the Constitution. An interpretation which has the effect of eroding or diluting the constitutional objective of keeping the State and its activities free from religious considerations, therefore, must be avoided. The Supreme Court of India has in several pronouncements ruled that while interpreting an enactment, the Courts should remain cognizant of the constitutional goals and the purpose of the Act and interpret the provisions accordingly. Paragraph 76 adds: Extending the above principle further one can say that if two constructions of a statute are possible, one that promotes the constitutional objective ought to be preferred over the other that does not do so. Paragraph 77 refers to the decision of the Supreme Court of India in State of Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469, wherein the Court held that as the vehicle of transforming the nation's life, the Court should respond to the nation's need and interpret the law with pragmatism to further public welfare and to make the constitutional aspirations a reality. The Court said: The Judges, therefore, should respond to the human situations to meet the felt necessities of the time and social needs, make meaningful the right to life and give effect to the Constitution and the will of the legislature. The Supreme Court of India as the vehicle of transforming the nation's life should respond to the nation's needs and interpret the law with pragmatism to further public welfare to make the constitutional aspirations a reality. Common sense has always served in the Court's ceaseless striving as a voice of reason to maintain the blend of change and continuity of order which is sine qua non for stability in the process of change in a parliamentary democracy. In interpreting the Act, the Judge should be cognizant and always keep at the back of his/her mind the constitutional goals and the purpose of the Act and interpret the provisions of the Act in the light thus shed to annihilate untouchability; to accord to the Dalits and the Tribes right to equality; give social integration a fruition and make fraternity a reality., Applying the above principles laid down by the Constitution Benches of the Supreme Court of India on interpretation of the Constitution, in the facts of the present case we need to discern the intention of Parliament in inserting Article 342A. Reports of the Parliamentary Committee and the statement made by the Minister while moving the Bill are relevant aids for a construction of the constitutional provision. The Parliamentary Committee report makes it clear that after obtaining clarification from the Ministry that the constitutional amendment is not intended to take away the right of identification of backward class from a State. It submitted its report to the effect that the rights of the State Backward Classes Commission shall continue unhindered. The Parliamentary Standing Committee further noticed that the list contemplated under Article 342A is only the Central List of the backward classes for a particular State for the purposes of services under the Government of India and its organisations., We have further noticed the statement of the Minister of Social Justice and Empowerment made both in the Rajya Sabha and the Lok Sabha. The Minister stated that the task of preparing the list of the State of the Backward Classes is taken by the State Commission and the amendment shall have no effect on the right of the State and the State Backward Classes Commission to identify the backward classes., We may further notice that the above statement was made by the Minister of Social Justice and Empowerment in the background of several members of Parliament expressing their apprehension that the Constitution (102nd Amendment) shall take away the rights of the States to identify backward classes in each State. The Minister, for allaying their apprehension, made a categorical statement that the constitutional amendment shall not affect the power of the State, the State Backward Classes Commission to identify the backward classes in the State., The learned Attorney General for India, in his submission, has referred to the statement of the Minister of Social Justice and Empowerment as well as the Parliamentary Select Committee report and has emphasized that the parliamentary intention was never to take away the rights of the States to identify backward classes in their respective States. The Attorney General has relied on the Union's stand taken in Writ Petition (C) No.12 of 2021 – Dinesh B. v. Union of India & Ors., where the stand of the Union on the Constitution (102nd Amendment) Act, 2018 was made clear in paragraph 11. Paragraph 11 states: That, from the above, it is evident that the power to identify and specify the SEBCs lies with Parliament, only with reference to the Central List of SEBCs. The State Governments may have their separate State Lists of SEBCs for the purpose of providing reservation in recruitment to State Government services or admission in State Government educational institutions. The castes/communities included in such State Lists of SEBCs may differ from the castes/communities included in the Central List of SEBCs. It is submitted that the inclusion or exclusion of any caste or community in the State List of SEBCs is the subject of the concerned State Government and the Government of India has no role in the matter., It is, thus, clear as sunlight that the parliamentary intention discernible from the Select Committee report and the statement of the Ministry of Social Justice and Empowerment is that the intention of Parliament in bringing the constitutional amendment was not to take away the power of the State to identify backward class in the State., The parliamentary intention was further discernible that the list contemplated to be issued by the President under Article 342A was only the Central List which was to govern the services under the Government of India and organisations under the Government of India. When the parliamentary intention is discernible and admissible as aid to statutory interpretation, we see no reason not to interpret Article 342A in the manner intended by Parliament., We also need to reflect on the submission of the petitioner that the scheme under Article 342A has to be interpreted in accordance with the already existing scheme under Articles 341 and 342. There is no doubt that the constitutional scheme under Article 342A(1) and those of Article 341(1) and 342(1) are the same, but there is a vast difference between the list of SC and ST as contemplated by Articles 341 and 342 and that of backward classes now contemplated under Article 342A., The concept of Scheduled Castes was well known even before the enforcement of the Constitution. There was already a Scheduled Castes list in existence when the Constitution was enforced. The Government of India Act, 1935, Schedule (1), paragraph 26 defines the Scheduled Castes as: ‘the scheduled castes’ means such castes, races or tribes or parts of or groups within castes, races or tribes, being castes, races, tribes, parts or groups which appear to His Majesty in Council to correspond to the classes of persons formerly known as ‘the depressed classes’, as His Majesty in Council may specify. The Government of India also issued a Scheduled Castes List under the Government of India Scheduled Castes Order 1936. The Constitution framers were thus well aware of the concept of Scheduled Castes and Scheduled Tribes and hence the same scheme regarding SC was continued in the Constitution by way of Article 341., The expression ‘backward class’ does not find place in the Government of India Act, 1935. The Constitution framers, recognising that backward classes of citizens need affirmative action by the State to bring them into the mainstream of society, engrafted a special provision for backward classes. Under Article 16(4) the State was empowered to make any provision for reservation of appointment or posts in favour of any backward class of citizens not adequately represented in services. When the Constitution empowers the State to make any provision, the provision may embrace all aspects of measures including identification of the backward classes. The Constitution Bench of the Supreme Court of India in Indra Sawhney has accepted and recognised this position. It is both the States and the Union who are entitled to identify backward classes of citizens and to take measures. Indra Sawhney issued directions to the Union as well as the States to constitute a permanent body for identification and for taking necessary measures. The power to identify the backward classes was with the State and there is no intention that the power of the State as occurring in Articles 15(4) and 16(4) has been taken away by the constitutional amendment. The power given to the State under Articles 15(4) and 16(4) is for the benefit of backward classes of citizens. Any limitation of such power cannot be readily inferred and has to be expressly provided by the Constitution. The submission of the petitioner that Article 342A, which relates to socially and educationally backward classes, should be read in the constitutional scheme as delineated under Articles 341 and 342, thus cannot be accepted., Section 2(c) of the National Commission for Backward Classes Act, 1993 defines ‘lists’ as: lists means lists prepared by the Government of India from time to time for purposes of making provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India. Section 9 of the Act defines the functions of the Commission. The Commission shall examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over‑inclusion or under‑inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. The advice of the Commission shall ordinarily be binding upon the Central Government., The National Commission for Backward Classes Act, 1993 clearly indicates that the parliamentary enactment was related to services under the Government of India and the Act was not to govern or regulate identification of backward classes by the concerned State. The States had also enacted State legislation constituting Backward Classes Commissions. In the State of Maharashtra, the Maharashtra State Backward Classes Commission Act was enacted in 2005. Along with the passage of the Constitution (102nd Amendment), the National Commission for Backward Classes (Repeal) Act, 2018 was passed which received the assent of the President of India on 14 August 2018. Section 2 of the Repeal Act provides that the National Commission for Backward Classes Act, 1993 is hereby repealed and the Commission constituted under subsection (1) of section 3 of the said Act shall stand dissolved, but the repeal shall not affect the previous operation of the Act, any right, privilege, obligation or liability accrued, or any penalty, confiscation or punishment incurred, or any proceedings or remedy., The National Commission for Backward Classes, by the Constitution (102nd Amendment), was thus given constitutional status which was previously available to the Commission as a statutory body under the 1993 enactment. The Parliamentary Select Committee report dated 17 July 2017 and the minutes of the Parliamentary Standing Committee indicate that it was well known that there are two lists of backward classes, one Central List and one State List. During the Parliamentary Committee proceedings it was clarified that the constitutional amendment is only with regard to the Central List, which expression was expressly included in sub‑clause (2) of Article 342A., Article 341(1) uses the expression ‘Scheduled Castes’ and the same expression appears in sub‑clause (2) when the sub‑clause uses the expression ‘list of Scheduled Castes’ specified in the notification. Similarly, Article 342(2) uses the expression ‘list of Scheduled Tribes’ specified in the notification. Article 342A(2) adds the extra word ‘Central’ before the expression ‘list of socially and educationally backward classes’. If the constitutional scheme of Articles 341 and 342 is to be followed in Article 342A, the same expression without the extra word would have been used. The addition of the word ‘Central’ is therefore purposeful and not superfluous., The question may be asked why, when under the 1993 Act the Central List was prepared by the Government of India and the State List was prepared by the States, it was necessary to bring the 102nd Constitutional Amendment if the same regime of two lists was to continue. To answer this, we first look into the 1993 Act to understand the nature of the exercise undertaken regarding the Central List and any change after the 102nd Amendment., Section 2(c) and Section 9 of the 1993 Act have been noted. Section 11 of the Act provides for periodic revision of the lists by the Central Government every ten years, with consultation of the Commission. These provisions make it clear that the list prepared by the Central Government for reservation of appointments or posts in favour of backward classes in the services under the Government of India was a statutory exercise. The 102nd Constitutional Amendment was not made to seek a different purpose., The Government of India Act, 1935, specified the list of Scheduled Castes by His Majesty in Council, which was an executive function. The Constitution of India changed the legal regime of the Scheduled Castes list, as reflected in Articles 341 and 342. Dr. B.R. Ambedkar, moving the amendment, outlined the object and purpose of the constitutional provisions in the debates of 17 September 1949: The object of these two articles was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State, should have the power to issue a general notification in the Gazette specifying all the castes and tribes deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges defined for them in the Constitution. Once a notification has been issued, any addition or deletion must be made by Parliament and not by the President. The object is to eliminate any political factors in the disturbance of the Schedule., The main object of the constitutional provision was to eliminate political factors in the disturbance of the Scheduled Castes and Scheduled Tribes list. The same objective applies to the change of the statutory regime of backward classes under the 1993 Act into a constitutional regime by Article 342A. To eliminate political influence over the list of backward classes issued by the Government of India, the Constitution Amendment was brought, similar to the approach of the Constituent Assembly for Articles 341 and 342. By virtue of Article 342A, the list once issued by the President under Article 342A(1) cannot be altered except by parliamentary enactment. Thus, the amendment was not intended to take away the power of the States to identify backward classes for reservation in State services or educational institutions. The Minister of Social Justice and Empowerment clarified that the amendment does not affect the State’s power, and the learned Attorney General reiterated the same position. We see no reason to reject the submissions that the 102nd Constitutional Amendment was not intended to take away the State’s power regarding identification of backward classes for services in the State or educational institutions in the State., Article 366 is the definition clause of the Constitution. Clause (26C) defines ‘socially and educationally backward classes’ as such backward classes as are deemed under Article 342A for the purposes of this Constitution.
id_886	14	When we have interpreted Article 342A to mean that Article 342A refers to ‘Central List’ which is prepared for services under the Government of India and organisations under the Government of India, the definition given under Article 366(26C) which specifically refers to Article 342A has to be read together and a list of backward classes which is not a Central List shall not be governed by the definition under Article 366(26C). Since the 26C provision has been inserted in the context of Article 342A, if the context is a list prepared by the State and it is a State List, the definition under 26C shall not govern. Article 366(26C) thus has to be read contextually with Article 342A and for no other purpose., The interpretation which we have put on Article 342A is in full accord with the intention of the framers of the Constitution. Doctor B. R. Ambedkar in the Constituent Assembly had said that a backward community is to be determined by each local Government. The determination, that is, identification of the backward classes was left to the local Government as was clearly and categorically stated by Doctor Ambedkar in the Constituent Assembly debates. It is most relevant for the present discussion to quote the exact words used by Doctor Ambedkar while answering the debate on draft sub‑clause, Article 10(3) which is Article 16(4) of the present Constitution: “Somebody asked me: What is a backward community? Well, I think anyone who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government.”, The framers of the Constitution thus contemplated that determination of backward class as occurring in draft Article 10(3), that is, present Article 16(4), is to be done by the local Government. After the Constitution, for the last sixty‑eight years backward classes were identified by the respective State Governments, which prepared their respective lists and granted reservation under Articles 15(4) and 16(4) as per their decision. The Constitution Bench in Indira Sawhney recognised and held that each State Government is fully competent to identify backward classes and therefore directed the appointment of a permanent body both by the Union and by the State, resulting in the constitution of the National Backward Classes Commission and State Backward Classes Commissions., To reverse the entire constitutional scheme regarding identification of backward classes by the State, which had continued for sixty‑eight years, a clear and explicit constitutional amendment was necessary. There is no express indication in the One Hundred and Second Constitutional Amendment that the power of the State is being taken away for identification of the backward classes., We are not persuaded to interpret Article 342A against the intention of Parliament as reflected in the Parliamentary Committee report and the statement made by the Minister on the floor of the House. The statement of the Minister on the floor of the House was clear and categorical; we cannot adopt an interpretation that was never intended by Parliament and that may have serious consequences for the rights of the States which Parliament neither intended nor wanted to affect. We therefore hold that Article 342A was introduced by the One Hundred and Second Amendment to give constitutional status to the National Backward Classes Commission and for publication of a list by the President of socially and educationally backward classes, which was to be a Central List for governing employment under the Government of India and the organisations under it. The expression ‘Central List’ used in sub‑clause (2) of Article 342A has been used for the purpose and object which cannot be ignored. The definition clause under Article 366(26C) has to be read contextually with Article 342A. Thus, the definition is relevant in the context of ‘Central List’ and does not govern a list prepared by the State, which was not contemplated in Article 342A., We do not find any merit in the challenge to the One Hundred and Second Amendment. The amendment does not violate any basic feature of the Constitution. The argument of the learned counsel for the petitioner that Article 368 has not been followed because the amendment was not ratified by the necessary majority of the States is untenable. Parliament never intended to take away the rights of the State regarding identification of backward classes; the amendment was not covered by the proviso to Article 368(2), hence it did not require ratification. The argument of procedural violation in passing the amendment cannot be accepted. We uphold the amendment interpreted in the manner above., The High Court in the impugned judgment correctly interpreted the One Hundred and Second Amendment and the opinion of the High Court that the amendment does not take away the legislative competence of the Maharashtra Legislature is correct, and we approve the same., From our foregoing discussion and findings we arrive at the following conclusions., The greatest common measure of agreement in six separate judgments delivered in Indira Sawhney is that reservation under Article 16(4) should not exceed fifty percent, and that exceeding the reservation beyond fifty percent requires extraordinary circumstances as indicated in paragraph 810 of Justice Jeevan Reddy, with extreme caution., The fifty percent rule, spoken in Balaji and affirmed in Indira Sawhney, is intended to fulfil the objective of equality enshrined in Article 14, of which Articles 15 and 16 are facets. Changing the fifty percent limit would undermine a society founded on equality and would instead be based on caste rule., The cap on the percentage of reservation laid down by the Constitution Bench in Indira Sawhney is intended to strike a balance between the rights under Articles 15(1) and 15(4) as well as Articles 16(1) and 16(4). The cap is to achieve the principle of equality and is not arbitrary or unreasonable., Providing reservation for advancement of any socially and educationally backward class in public services is not the only means of improving the welfare of backward classes. The State ought to bring other measures, including providing free educational facilities, fee concessions, and opportunities for skill development to enable candidates from backward classes to be self‑reliant., There can be no quarrel that society changes, law changes, and people change, but that does not mean that a measure proven beneficial in maintaining equality should be altered solely in the name of change., When the Constitution Bench in Indira Sawhney held that fifty percent is the upper limit of reservation under Article 16(4), that law is binding under Article 141 and must be implemented., The Constitution Bench judgment in Indira Sawhney is also fully applicable with reference to Article 15(4) of the Constitution of India., The setting aside of the fifty percent ceiling by the eleven‑Judge Bench in the T. M. A. Pai Foundation case, as laid down by the St. Stephen’s case regarding a fifty percent ceiling in admission to aided minority institutions, has no bearing on the principle of the fifty percent ceiling laid down by Indira Sawhney with respect to reservation. The judgment of T. M. A. Pai concerned rights of minorities under Article 30 and is not relevant for reservation under Articles 16(4) and 15(4)., The Constitution (Eighty‑first Amendment) Act, 2000, by which sub‑clause (4B) was inserted in Article 16, makes it clear that the ceiling of fifty percent has now received constitutional recognition., We fully endorse the submission of Shri Rohtagi that the extraordinary situations indicated in paragraph 810 were only illustrative and cannot be said to be exhaustive. However, we do not agree with Mr. Rohtagi that paragraph 810 provided only a geographical test. The expression ‘out of the main stream of national life’ is a social test, which also needs to be fulfilled for a case to be covered by the exception., We do not find any substance in any of the ten grounds urged by Shri Rohatgi and Shri Kapil Sibal for revisiting and referring the judgment of Indira Sawhney to a larger Bench., The relevance and significance of the principle of stare decisis, as held by the Constitution Bench in Indira Sawhney, clearly binds us. The judgment of Indira Sawhney has stood the test of time and has never been doubted by any judgment of this Court. The Constitution Bench judgment of this Court in Indira Sawhney neither needs to be revisited nor referred to a larger Bench for consideration., The Constitution Bench in M. Nagaraj does not contain any ratio that the ceiling of fifty percent reservation may be exceeded by showing quantifiable contemporary data relating to backwardness. The Commission has completely misread the ratio of the judgment when it took the view that on the basis of quantifiable data the ceiling of fifty percent can be breached., The Commission and the High Court found existence of extraordinary situations with regard to exceeding the fifty percent ceiling in respect to granting separate reservation to the Maratha community because the population of the backward class is eighty percent and the reservation limit is only fifty percent; including the Maratha in the pre‑existing reservation for OBC would not be justice to them. Such circumstances are not covered by the parameters indicated in Indira Sawhney as extraordinary circumstances to breach the fifty percent ceiling., We have found that no extraordinary circumstances were made out in granting separate reservation to the Maratha community by exceeding the fifty percent ceiling. The Act, 2018 violates the principle of equality enshrined in Article 16. Exceeding the ceiling limit without any extraordinary circumstances clearly violates Articles 14 and 16 of the Constitution, making the enactment ultra vires., The proposition is well settled that Commission reports are to be looked into with deference. However, one of the parameters of scrutiny of a Commission’s report, as approved by this Court, is whether, on the basis of data and materials referred to in the report, the conclusions arrived at by the Commission are justified., The measures taken under Articles 15(4) and 16(4) can be examined as to whether they violate any constitutional principle and whether they are in conformity with the rights under Articles 14, 15 and 16. The scrutiny of measures taken by the State, either executive or legislative, thus has to pass the test of constitutional scrutiny., The word ‘adequate’ is a relative term used in relation to representation of different castes and communities in public employment. The objective of Article 16(4) is that backward classes should also be put in the mainstream to enable them to share power of the State by affirmative action., We have examined the issues regarding representation of Marathas in State services on the basis of facts and materials compiled by the Commission and obtained from States and other sources. The representation of Marathas in public services in Grades A, B, C and D comes to 33.23 percent, 29.03 percent, 37.06 percent and 36.53 percent respectively, computed from the open category filled posts, which is an adequate and satisfactory representation of the Maratha community., The Constitution’s pre‑condition for providing reservation as mandated by Article 16(4) is that the backward class is not adequately represented in public services. The Commission laboured under the misconception that unless the Maratha community is represented proportionally to its population, it is not adequately represented. Indira Sawhney has categorically held that what is required by the State for providing reservation under Article 16(4) is not proportionate representation but adequate representation., The constitutional pre‑condition as mandated by Article 16(4) is not fulfilled with regard to the Maratha class; therefore both the Gaikwad Commission’s report and the consequential legislation are unsustainable., Having disapproved the grant of reservation under Article 16(4) to the Maratha community, the decision becomes relevant and shall have effect on the decision of the Commission holding the Maratha to be socially and educationally backward. Sufficient and adequate representation of the Maratha community in public services indicates that they are not socially and educationally backward. The data collected and tabled by the Commission clearly proves that Marathas are not a socially and educationally backward class., The elementary principle of interpreting the Constitution or a statute is to look into the words used in the statute; when the language is clear, the intention of the Legislature is to be gathered from the language used. Aid to interpretation is resorted to only when there is some ambiguity in the words or expression used in the statute. The rule of harmonious construction, the rule of reading the provisions together, and the rule of giving effect to the purpose of the statute are called in question when aids to construction are necessary in a particular context., The shift from the literal rule to purposive and objective interpretation of a constitutional document is adopted because the Constitution is not to be interpreted in a static and rigid manner; it is an organic and living document which needs to be interpreted with the cardinal principles and objectives of the Constitution., The law is well settled in this country that Parliamentary Committee reports, including speeches given by the Minister in Parliament, are relevant materials to ascertain the intention of Parliament while construing constitutional provisions., We are of the considered opinion that the consultation by the State on all policy matters affecting socially and educationally backward classes is now mandatory as per sub‑clause (9) of Article 338B, which cannot be bypassed by any State while taking any major policy decision. Sub‑clause (9) uses the expression ‘consultation’. It is true that ‘consultation’ is not to be read as concurrence, but the consultation has to be effective and meaningful. The object of consultation is that the consultee shall place the relevant material before the person from whom consultation is sought, and the advice and opinion given by the consulting authority shall guide the authority who has asked for consultation., It is clear as sunlight that the parliamentary intention discernible from the Select Committee report and the statement of the Minister of Social Justice and Empowerment is that the intention of Parliament in bringing the constitutional amendment was not to take away the power of the State to identify backward classes in the State., When the parliamentary intention is discernible and admissible as aid to statutory interpretation, we see no reason not to interpret Article 342A in the manner intended by Parliament., We are of the view that the word ‘Central’ in Article 342A(2) was used for purpose and object. The use of ‘Central’ was only with the intent to limit the list issued by the President to Central services. No word in a statute or Constitution is used without purpose; the word ‘Central’ must be given meaning and purpose., We hold that Article 342A was introduced by the One Hundred and Second Amendment to give constitutional status to the National Backward Classes Commission and for publication of a list by the President of socially and educationally backward classes, which was to be a Central List for governing employment under the Government of India and the organisations under it., The One Hundred and Second Amendment Act, 2018 does not violate any basic feature of the Constitution. We uphold the constitutional validity of the One Hundred and Second Amendment Act, 2018., In view of the foregoing discussions and conclusions, we decide all the Civil Appeals and Writ Petitions in this batch of cases as follows: Civil Appeal No. 3123 of 2020 and other civil appeals challenging the impugned judgment of the High Court dated 27.06.2019 are allowed. The impugned judgment of the High Court dated 27.06.2019 is set aside. The writ petitions filed by the appellants in the High Court are allowed with the following effect: Section 2(j) of the Act, 2018, insofar as it declares the Maratha community educationally and socially backward, is held to be ultra vires to the Constitution and struck down; Section 4(1)(a) of the Act, 2018, as amended by the Act, 2019, insofar as it grants reservation under Article 15(4) to the extent of twelve percent of total seats in educational institutions, including private institutions, is declared ultra vires to the Constitution and struck down; Section 4(1)(b) of the Act, 2018, as amended by the Act, 2019, granting reservation of thirteen percent to the Maratha community of the total appointments in direct recruitment in public services and posts under the State, is held to be ultra vires to the Constitution and struck down., Admissions insofar as postgraduate medical courses which were already held not to be affected by the order dated 09.09.2020 shall not be affected by this judgment; therefore, those students who have already been admitted in postgraduate medical courses prior to 09.09.2020 shall be allowed to continue. Admissions in different courses, medical, engineering and other streams which were completed after the judgment of the High Court dated 27.06.2019 till 09.09.2020 are saved. Similarly, all appointments made to members of the Maratha community in public services after the judgment of the High Court dated 27.06.2019 till the order passed by this Court on 09.09.2020 are saved. However, no further benefit can be claimed by such Maratha students admitted in different courses or Maratha students who were appointed in public services in the State under the Act, 2018., After the order was passed on 09.09.2020, neither any admission can be taken in educational institutions nor any appointment can be made in public services and posts in accordance with the Act, 2018., The writ petitions (Civil) No. 914 of 2020, (Civil) No. 915 of 2020, and (Civil) No. 504 of 2020 filed under Article 32 of the Constitution are disposed of as per the above directions., The writ petition No. 938 of 2020 challenging the constitutional validity of the One Hundred and Second Amendment Act, 2018 is dismissed in view of the interpretation of the amendment as above., Before we close, we record our indebtedness to the learned counsel who appeared in these cases and enlightened us with regard to the issues involved in this batch of appeals and writ petitions, which are of seminal importance both for constitutional law and for society in general. All the learned counsel, apart from oral submissions, have submitted excellent brief written notes touching various issues, which rendered valuable assistance to us., The parties shall bear their own costs. New Delhi, May 05, 2021., Reportable Civil Appeal No. 3123 of 2020: Dr. Jaishri Laxmanrao Patil, Appellant(s) versus The Chief Minister and others, Respondent(s)., Civil Appeals No. 3124 of 2020, No. 3133 of 2020, No. 3134 of 2020, No. 3131 of 2020, No. 3129 of 2020, Writ Petition (Civil) No. 915 of 2020, Writ Petition (Civil) No. 504 of 2020, Writ Petition (Civil) No. 914 of 2020, Civil Appeal No. 3127 of 2020, Civil Appeal No. 3126 of 2020, Civil Appeal No. 3125 of 2020, Civil Appeal No. 3128 of 2020, Civil Appeal No. 3130 of 2020, Writ Petition (Civil) No. 938 of 2020., I have carefully gone through the erudite and scholarly opinions of Justice Ashok Bhushan and Justice S. Ravindra Bhat. As far as question numbers one, two and three are concerned, they are in unison. There is a difference of opinion in relation to question numbers four, five and six. I am in agreement with the opinion of Justice Ashok Bhushan on questions one, two and three. As these issues have been dealt with exhaustively by Justice Ashok Bhushan, I have nothing further to add., Question numbers four, five and six pertain to the interpretation of Article 342A of the Constitution of India. On these questions, I am unable to persuade myself to accept the conclusion reached by Justice Ashok Bhushan. I agree with the denouement of the judgment of Justice S. Ravindra Bhat on issues four, five and six., In view of the cleavage of opinion on the interpretation of Article 342A of the Constitution, it is my duty to give reasons for my views in accord with the judgment of Justice S. Ravindra Bhat. In proceeding to do so, I am not delving into those aspects which have been dealt with by him., Article 342A, which falls for interpretation, is as follows: (1) The President may, with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification., Article 366(26C), which is also relevant, provides: ‘(26C) socially and educationally backward classes means such backward classes as are so deemed under Article 342A for the purposes of this Constitution.’, Before embarking upon the exercise of construing the above Articles, it is necessary to refer to the cardinal principles of interpretation of the Constitution. The Constitution is intended to endure for ages to come and consequently to be adapted to the various crises of human affairs. We must not forget that it is the Constitution we are expounding. The Constitution is a living and organic document which requires to be construed broadly and liberally. I am reminded of McCulloch v. Maryland, 17 United States 316 (1819), the word of caution by Benjamin Cardozo who said that a judge is not a knight‑errant roaming at will in pursuit of his own ideal of beauty or of goodness. A judge is not to innovate at pleasure. Rules which are applied to the interpretation of other statutes apply to the interpretation of the Constitution., It may be desirable to give a broad and generous construction to the constitutional provisions, but while doing so the rule of plain meaning or literal interpretation, which remains the primary rule, has also to be kept in mind. In fact, the rule of literal construction is the safe rule even while interpreting the Constitution unless the language used is contradictory, ambiguous, or leads to absurd results., The duty of the judicature is to act upon the true intention of the legislature, the mens or sententia legis. See G. Narayanaswami v. G. Pannerselvam, South Asia Industries Private Ltd v. S. Sarup Singh and others, Institute of Chartered Accountants of India v. Price Waterhouse and J. P. Bansal v. State of Rajasthan. 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. Oliver Wendell Holmes Jr. has famously said in a letter, ‘I do not care what their intention was. I only want to know what the words mean.’ If the language of the statute is plain, there is no need for construction as legislative intention is revealed by the apparent meaning. Legislative intent must be primarily ascertained from the language used in the statute itself., In his book Purposive Interpretation in Law, Aharon Barak says that constitutional language, like the language of any legal text, plays a dual role. On the one hand, it sets the limits of interpretation. The language of the Constitution is not clay in the hands of the interpreter to be molded as he or she sees fit. A Constitution is neither a metaphor nor a non‑binding recommendation. On the other hand, the language of the Constitution is a source for its purpose. There are other sources, to be sure, but constitutional language is an important and highly credible source of information. The fact that we may learn the purpose of a Constitution from sources external to it does not mean that we can give a Constitution a meaning that is inconsistent with its explicit or implicit language. Interpretation cannot create a new constitutional text. Talk of judges amending the Constitution through their interpretation of the Constitution is just a metaphor., The claim that a constitutional text limits but does not command is true only for the limited number of cases in which, after exhausting all interpretive tools, we can still extract more than one legal meaning from the constitutional language and must therefore leave the final decision to judicial discretion. In these exceptional cases, language provides a general direction but does not draw a precise map of how to reach the destination. Usually, however, constitutional language sets not only the limits of interpretation but also its specific content., It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a meaning which the words of that provision cannot reasonably bear. If they are capable of more than one meaning, then you can choose between these meanings, but beyond that the Court must not go. Lord Parker, Chief Justice, observed in R. v. Oakes that there is no ground for reading in words according to what may be the supposed intention of Parliament., Justice Ashok Bhushan, in his opinion at paragraph 346, rightly held that the elementary principle of interpreting the Constitution or a statute is to look into the words used in the statute and when the language is clear, the intention of the legislature is to be gathered from the language used. He further opined that aid to interpretation is resorted to only when there is some ambiguity in words or expression used in the statute. Justice Bhushan, in State (NCT of Delhi) v. Union of India, held that constitutional interpretation has to be purposive, taking into consideration the need of the times and constitutional principles. The intent of the framers of the Constitution and the object and purpose of a constitutional amendment always throw light on the constitutional provisions, but for interpreting a particular provision, the constitutional scheme and the express language employed cannot be given a go‑by., In the 183rd Report of the Law Commission of India, Justice M. Jagannadha Rao observed that a statute is the will of the legislature conveyed in the form of text. It is a well‑settled principle of law that, as a statute is an edict of the legislature, the conventional way of interpreting or construing the statute is to see the intent of the legislature.
id_886	15	One aspect carries the concept of meaning that is what the word means and another aspect conveys the concept of purpose and object or reason or approach pervading through the statute. The process of construction, therefore, combines both liberal and purposive approaches. However, necessity of interpretation would arise only where a language of the statutory provision is ambiguous, not clear or where two views are possible or where the provision gives a different meaning defeating the object of the statute. He supported his view by referring to two judgments of the Supreme Court of India in R.S. Nayak v. A.R. Antulay and Grasim Industries Ltd. v. Collector of Customs, Bombay. It was held in R.S. Nayak (supra) that the plainest duty of the Supreme Court of India is to give effect to the natural meaning of the words used in the provision if the words of the statute are clear and unambiguous., The words of a statute, when there is a doubt about their meaning, are to be understood in the sense in which they best harmonise between the subject of the enactment and the object which the legislature has used. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained. It is a recognised rule of interpretation of statutes that the expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the legislature., However, the object‑oriented approach cannot be carried to the extent of doing violence to the plain language used by rewriting the section or structure words in place of the actual words used by the legislature. The logical corollary that flows from the judicial pronouncements and opinion of reputed authors is that the primary rule of construction is literal construction. If there is no ambiguity in the provision which is being construed there is no need to look beyond. Legislative intent, which is crucial for understanding the object and purpose of a provision, should be gathered from the language. The purpose can be gathered from external sources but any meaning inconsistent with the explicit or implicit language cannot be given., In Aron Solomon v. Solomon & Co. the House of Lords observed that the intention of legislature is a slippery phrase. What the legislature intended can be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication. A construction which furthers the purpose or object of an enactment is described as purposive construction. A purposive construction of an enactment is one which gives effect to the legislative purpose by (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose. There is no gainsaying that purposive interpretation based on the literal meaning of the enactment must be preferred., In case of ambiguity the Supreme Court of India has adopted purposive interpretation of statutory provisions by applying the rule of purposive construction. In the instant case, the deliberations before the Select Committee, its report and Parliamentary Debates were relied upon by the respondents in support of the proposition that the object of Article 342A is to the effect that the power of the State legislature to identify socially and educationally backward classes is not taken away. Ergo, Article 342A requires to be interpreted accordingly., The exclusionary rule by which the historical facts of legislation were not taken into account for the purpose of interpreting a legislation was given a decent burial by the House of Lords in Pepper (Inspector of Taxes) v Hart. In Kalpana Mehta and Others v. Union of India, a five‑Judge Bench of the Supreme Court of India held that the Parliamentary Standing Committee report can be taken as an aid for the purpose of interpretation of a statutory provision. Wherever the reliance on such reports is necessary, they can be used for assisting the court in gathering historical facts. In accord with the said judgment, the deliberations of the report of the Select Committee can be utilised as an extrinsic aid for interpretation of Article 342A, in case there is any ambiguity in the provision., In R v. DPP ex‑parte Duckenfield, Laws, CJ, cautioned about the great dangers in treating government pronouncements, however helpful, as an aid to statutory construction. In Black‑Clawson International Ltd. taking the opinion of a minister, or an official or a committee, as to the intended meaning in particular application of a clause or a phrase was held to be stunting of the law and not a healthy development. The crucial consideration when dealing with enacting historical materials is the possibility that Parliament changed its mind, or for some reason departed from it. In Letang v. Cooper it was held that enacting history must be inspected with great care and caution. As an indication of legislative intention, it is very far behind the actual words of the Act., While setting out the relevant portions of the report of the Select Committee, Justice Bhat pointed out that the report reflected the opinions of both sides before concluding that the concern of the States will be considered in accordance with the procedure under Article 341 and Article 342. There is no doubt that the Minister was assuaging the concerns of the Members by stating that the power of the States to identify backward classes is not being disturbed. I am convinced that there is no reason to depart from the text which is in clear terms and rely upon the legislative history to construe Article 342A contrary to the language. I am not persuaded to agree with the submissions of the learned Attorney General and the other counsel for the States that Article 342A has to be interpreted in light of the Select Committee report and discussion in the Parliament, especially when the legislative language is clear and unambiguous., Where the Supreme Court of India is unable to find out the purpose of an enactment, or is doubtful as to its purposes, the Court is unlikely to depart from the literal meaning. There is no dispute that the statement of objects and reasons do not indicate the purpose for which Article 342A was inserted. During the detailed hearing of these matters, we repeatedly probed counsel representing both sides about the purpose for inserting Article 342A in the Constitution. No satisfactory answer was forthcoming. Despite our best efforts, we could not unearth the reason for introduction of Article 342A. As the purpose is not clear, literal construction of Article 342A should be resorted to., Craies culled out the following principles of interpretation of legislation: Legislation is always to be understood first in accordance with its plain meaning. Where the plain meaning is in doubt, the Courts will start the process of construction by attempting to discover, from the provisions enacted, the broad purpose of the legislation. Where a particular reading would advance the purpose identified, and would do no violence to the plain meaning of the provisions enacted, the Courts will be prepared to adopt that reading. Where a particular reading would advance the purpose identified but would strain the plain meaning of the provisions enacted, the result will depend on the context and, in particular, on a balance of the clarity of the purpose identified and the degree of strain on the language. Where the Courts conclude that the underlying purpose of the legislation is insufficiently plain, or cannot be advanced without an unacceptable degree of violence to the language used, they will be obligated, however regretfully, to leave to the legislature the task of extending or modifying the legislation., To ascertain the plain meaning of the legislative language, we proceed to construe Article 342A of the Constitution of India. Article 342A was inserted in the Constitution by the Constitution (102nd Amendment) Act, 2017. A plain reading of Article 342A(1) would disclose that the President shall specify the socially and educationally backward classes by a public notification after consultation with the Governor. Those specified as socially and educationally backward classes in the notification shall be deemed to be socially and educationally backward classes in relation to that State or Union Territory for the purposes of the Constitution. Article 342A(2) provides that inclusion or exclusion from the list of socially and educationally backward classes specified in the notification under Article 342A(1) can be only done by law made by the Parliament., The word ‘Central list’ used in Article 342A(1) had given rise to conflicting interpretations. Article 366 deals with definitions. Sub‑Article 26(c) was inserted in Article 366 of the Constitution by the Constitution (102nd Amendment) Act, 2017 according to which, socially and educationally backward classes shall mean such backward classes as are so deemed under Article 342A for the purposes of the Constitution. The use of the word ‘means’ indicates that the definition is a hard‑and‑fast definition, and no other meaning can be assigned to the expression that is put down in the definition. When a definition clause is defined to mean such and such, the definition is prima facie restrictive and exhaustive., The legislature can define its own language and prescribe rules for its construction which will generally be binding on the Courts. Article 366(26)(c) makes it clear that it is only those backward classes as are so deemed under Article 342A which shall be considered as socially and educationally backward classes for the purposes of the Constitution and none else. No other class can claim to belong to socially and educationally backward classes for the purposes of the Constitution, except those backward classes as are so deemed under Article 342A of the Constitution., This Court in Sudha Rani Garg v. Jagdish Kumar dealt with the word ‘deemed’ in the following manner: The word ‘deemed’ is sometimes used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible., Lord Asquith in East End Dwellings Co. Ltd v. Finsbury Borough Council held that, if one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from it or accompanied it. The use of the word ‘deemed’ in the definition clause as well as in Article 342A puts it beyond doubt that it is only those backward classes which are specified in the notification that may be issued by the President, who can claim to be socially and educationally backward classes for the purposes of the Constitution., There is no equivocacy in the legislative language used in Article 342A. The ordinary meaning that flows from a simple reading of Article 342A is that the President, after consultation with the Governor of a State or Union Territory, may issue a public notification specifying socially and educationally backward classes. It is those socially and educationally backward classes who shall be deemed as socially and educationally backward classes in relation to that State or Union Territory for the purposes of the Constitution. There is no obscurity in Article 342A(1) and it is crystal clear that there shall be one list of socially and educationally backward classes which may be issued by the President. Restricting the operation of a list to be issued under Article 342A(1) as not being applicable to States can be done only by reading words which are not there in the provision., According to Aharon Barak, the structure of the Constitution can be given implicit meaning to what is written between the lines of the text, but it cannot add lines to the text. To do so would be to fill a gap or lacuna, using interpretative doctrines. There is no reason for reading Article 342A(1) in any other manner except, according to the plain legal meaning of the legislative language. The words ‘Central list’ used in Article 342A(2) have created some controversy in construing Article 342A. To find out the exact connotation of a word in a statute, we must look to the context in which it is used. No words have an absolute meaning, no words can be defined in vacuo, or without reference to some context. Finally, the famous words of Justice Oliver Wendell Holmes Jr. that the word is not a crystal transparent and unchanged; it is a skin of a living thought and may vary in colour and content according to the circumstances and the time in which it is used., Article 342A(2) provides that inclusion or exclusion from the Central list of socially and educationally backward classes specified in a notification issued under Sub‑Clause (1) can be done only by the Parliament. A plain reading of the provision leads to the following deduction: (a) There is a notification issued by the President under clause (1). (b) The notification specifies socially and educationally backward classes. (c) Inclusion or exclusion can be done only by law made by the Parliament. (d) Save otherwise, the notification shall not be varied by any subsequent notification. (e) The list notified is referred to as the Central list., I find it difficult to agree with the submissions made on behalf of the respondents that the use of the words ‘Central list’ would restrict the scope and amplitude of the notification to be issued under Article 342A(1). There is only one list that can be issued by the President specifying the socially and educationally backward classes and only those classes are treated as socially and educationally backward classes for the purposes of the Constitution. Taking cue from the National Commission for Backward Classes Act, 1993, the respondents argued that the words ‘Central list’ is with reference only to appointments to Central services and admission in Central educational institutions. Reading ‘Central list’ in that manner would be curtailing the width of Article 342A(1). If so read, the sweep of Sub‑Clause (1) shall be minimized. Moreover, to achieve the said meaning, words which are not in Article 342A(1) have to be read into it. Contextually, the words ‘Central list’ in Article 342A(2) can be only with reference to the list contained in the notification which may be issued under Article 342A(1). It is well settled law that the provisions of the Constitution have to be harmoniously construed and it is apparent from Article 342A(1) and (2) that there is no scope for any list of socially and educationally backward classes, other than the list to be notified by the President., As the other expressions for the purposes of the Constitution and unless the context otherwise requires have been dealt with by Justice Bhat, I have nothing more to add to the construction placed by him on the said expressions. To avoid any confusion, I endorse the conclusion of Justice Ashok Bhushan on question Nos. 1, 2 and 3 and the final order proposed in Paragraph No. 44 of his judgment. Insofar as question Nos. 4, 5 and 6 are concerned, I am in agreement with the opinion of Justice S. Ravindra Bhat., A conspectus of the above discussion would be that only those backward classes included in the public notification under Article 342A shall be socially and educationally backward classes for the purposes of the Constitution. New Delhi, May 05, 2021., I have gone through the judgments authored by Honorable Justice Ashok Bhushan, J., Honorable Justice S. Ravindra Bhat, J. and also the order authored by Honorable Justice L. Nageswara Rao, J. I am in agreement with the reasoning and the conclusion on Question Nos. 1, 2 and 3 in the judgment rendered by Justice Ashok Bhushan, J., as well as additional reasons recorded by Justice S. Ravindra Bhat, J. and by Justice L. Nageswara Rao, J. I entirely agree with the reasoning and the conclusions in the judgment and order authored by Justice S. Ravindra Bhat, J. and Justice L. Nageswara Rao, J. on Question Nos. 4, 5 and 6. May 5, 2021., Franklin D. Roosevelt, the great American leader, once said that the test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little. In this batch of appeals arising from a common judgment of the Bombay High Court, this Supreme Court of India is called to adjudicate upon the extent to which reservations are permissible by the State, the correctness of its approach in designating a community as a Backward Class for the purposes of the Constitution, and, by an enactment (hereafter referred to as the SEBC Act) defining who could benefit from, and the extent of reservations that could be made in various state‑established facilities and educational institutions, and in the public services of the State of Maharashtra., A Brief Prelude: In WP No. 937/2017; 1208/2019; 2126/2019, PIL No. 175/2018 and connected batch of cases, the Maratha community (hereafter the Marathas) sought reservations through diverse demands, public meetings, marches etc. The State of Maharashtra promulgated an Ordinance in 2014 granting reservation to the community in public employment and education. Later the Ordinance was given the shape of an Act, which was challenged before the Bombay High Court. The court, after considering the rival submissions, stayed the operation of the enactment. The State Government then set up a backward class commission to ascertain the social and educational status of the community. Initially the commission was headed by Justice S. B. Mhase. His demise led to the appointment of Justice M. G. Gaikwad (Retired) as chairperson; the committee comprised ten other members. The committee headed by Justice Gaikwad was reconstituted on 3rd November 2017. By its report dated 13 November 2018 (the Gaikwad Commission Report), the commission recommended that the Maratha class of citizens be declared as a Socially and Educationally Backward Class (SEBC). This soon led to the enactment of the SEBC Act, giving effect to the recommendations of the Gaikwad Commission, resulting in reservation to the extent of 16 % in favour of that community; consequently, the aggregate reservations exceeded 50 %., The SEBC Act was brought into force on 30th November 2018. Close on its heels a spate of writ petitions was filed before the Bombay High Court, challenging the identification of Marathas as SEBCs, the conclusions of the Commission, the quantum of reservations, and the provisions of the Act itself, on diverse grounds. All writ petitions were clubbed together and considered. By the impugned judgment, the High Court turned down the challenge and upheld the identification of Marathas as SEBCs, and further upheld the reasons presented before it, that extraordinary circumstances existed, warranting the breach of the 50 % mark, which was held to be the outer limit in the nine‑judge decision of this Court in Indira Sawhney v. Union of India (hereafter variously Sawhney)., The special leave petitions, filed against the impugned judgment, were heard, and eventually leave was granted. Some writ petitions also challenged provisions of the SEBC Act. The validity of the Constitution (102nd) Amendment Act also is the subject matter of challenge, on the ground that it violates the basic structure of the Constitution., A bench of three judges, after hearing counsel for the parties, referred the issues arising from these batch of petitions and appeals to a Constitution bench for consideration, as important questions arising for interpretation. The five‑judge bench, by its order dated 08 March 2021, referred the following points for decision: (1) Whether the judgment in Indira Sawhney v. Union of India needs to be referred to a larger bench or re‑looked in the light of subsequent constitutional amendments, judgments and changed social dynamics. (2) Whether the Maharashtra State Reservation for seats for admission in educational institutions and for appointments in public services for SEBCs, as amended in 2019 granting 12 % and 13 % reservation for the Maratha community in addition to 50 % social reservation, is covered by exceptional circumstances as contemplated by the Constitution Bench in Sawhney. (3) Whether the State Government, on the strength of the Maharashtra State Backward Commission Report chaired by M. C. Gaikwad, has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in Sawhney. (4) Whether the Constitution (102nd) Amendment deprives the State Legislature of its power to enact legislation determining socially and economically backward classes and conferring the benefits on the said community under its enabling power. (5) Whether the State’s power to legislate in relation to any backward class under Articles 15(4) and 16(4) is abridged by Article 342A read with Article 366(26c) of the Constitution of India. (6) Whether Article 342A of the Constitution abrogates the State’s power to legislate or classify in respect of any backward class of citizens and thereby affects the federal policy/structure of the Constitution of India., I had the benefit of reading the draft judgment of Justice Ashok Bhushan, J., which has exhaustively dealt with each point. I am in agreement with his draft and the conclusions with respect to Points (1), (2) and (3). In addition to the reasons in the draft judgment of Justice Ashok Bhushan, J., I am also giving my separate reasons, in respect of Point (1). I am however not in agreement with the reasons and conclusions recorded in respect of Points (4) and (5), for reasons to be discussed elaborately hereafter. I agree with the conclusions of Justice Ashok Bhushan, J., in respect of Point (6); however, I have given my separate reasons on this point too., A careful reading of the judgments in Indira Sawhney v. Union of India clarifies that seven out of nine judges concurred that there exists a quantitative limit on reservation spelt out at 50 %. In the opinion of four judges, therefore, this limit could be exceeded under extraordinary circumstances and in conditions for which separate justification has to be forthcoming by the State or the concerned agency. However, there is unanimity in the conclusion by all seven judges that an outer limit for reservation should be 50 %. The other two judges indicated that there is no general rule of a 50 % limit on reservation. In these circumstances, given the general common agreement about the existence of an outer limit, i.e. 50 %, the petitioner’s argument about the incoherence or uncertainty about the existence of the rule is not a compelling reason to review or reconsider the Sawhney rule., The respondents had urged that discordant voices in different cases should lead to re‑examination of the ratio in Sawhney. It would be useful to notice that unanimity in a given bench (termed as a supermajority) denoting a 5‑0 unanimous decision in a Constitution Bench cannot be construed as per se a strong or compelling reason to doubt the legitimacy of a larger bench ruling that might contain a narrow majority (for instance a 4‑3 vote, resulting in overruling of a previous unanimous precedent). The principle of stare decisis operates both vertically—decisions of appellate courts bind tribunals and courts lower in the hierarchy—and horizontally—a larger bench formation ruling would be binding and prevail upon the ruling of a smaller bench. The logic stems from the raison d’être for the doctrine of precedents, i.e. stability in the law. If this rule were to be departed from and the legitimacy of a subsequent larger bench ruling were to be doubted on the ground that it comprises either a plurality of opinions or a narrow majority as compared with a previous bench ruling, there would be uncertainty and lack of clarity in the realm of precedential certainty.
id_886	16	In view of the above reasoning, it is held that the existence of a plurality of opinions or discordant or dissident judgments in the past which might even have led to a majority on an overall headcount supporting a particular rule in a particular case cannot detract from the legitimacy of a rule enunciated by a later, larger bench, such as the nine‑judge ruling in Indra Sawhney., So far as the argument that Indra Sawhney was concerned only with reservations under Article 16(4) is concerned, the Supreme Court of India is inclined to accept the submissions of the petitioner. The painstaking reasoning in various judgments in Indra Sawhney, including the judgments of Pandian and Sawant, Judges, would show that almost all the previous precedents on both Article 15(4) and Article 16(4) were considered., The tenor of all the judgments shows the anxiety of the Supreme Court of India to decisively rule on the subject of reservations under the Constitution in regard to backward classes and socially and educationally backward classes. This is also evident from M.R. Balaji v. State of Mysore, 1963 Supp. 1 Supreme Court Reports 439; P. Rajendran v. State of Tamil Nadu (1968) 2 Supreme Court Reports 786 [Article 15(4)]; A. Peeriakaruppan v. State of Tamil Nadu (1971) 1 Supreme Court Cases 38 [Article 15(4)]; State of Andhra Pradesh v. USV Balram (1972) 1 Supreme Court Cases 660 [Article 15(4)]; T. Devadasan (supra); State of Uttar Pradesh v. Pradeep Tandon (1975) 1 Supreme Court Cases 267; Janki Prasad Parimoo v. State of Jammu & Kashmir (1973) 1 Supreme Court Cases 420; N.M. Thomas [Article 16(4)] and K.C. Vasanth Kumar [Article 15(4)]. The history of Article 15(4) which was noticed and the phraseology adopted (socially and educationally backward classes) was held to be wider than backward classes though the later expression pointed to social backwardness. Such conclusions cannot be brushed aside by sweeping submission pointing to the context of the adjudication in Indra Sawhney., The argument on behalf of the States that a decision is to be considered as a ratio only as regards the principles decided, having regard to the material facts, is, in the opinion of this Supreme Court of India, insubstantial. The reference of the dispute, i.e., notification of various backward classes for the purpose of Union public employment under Article 16(4) and the issuance of the Office Memorandum dated 1990, no doubt provided the context for the Court to decide as it did in Indra Sawhney. However, to characterize its conclusions and the considerations through the judgments of various Judges as not ratios but mere obiter or observations not binding upon the States is an over‑simplification. The Office Memorandum did lead to widespread protests and discontent. Initially, the writ petitions were referred to a five‑judge bench which, upon deliberation and hearing, felt that the matter required consideration by a larger bench, presumably in view of the previous ruling by the seven judges in N.M. Thomas where two judges had expressly stated that there was no ceiling on reservation and the later five‑judge judgment in K.C. Vasanth Kumar where one judge had expressed a similar reservation. It was for the purpose of decisively declaring the law that the nine‑judge bench was formed and the question formulated by it. Not only did the judges who constituted a majority speak about this rule; even the two other judges who did not agree with the 50 % ceiling rule dealt with this aspect. This is evident from the judgment of Sawant, Judge., To summarise, the question may be answered thus. There is no legal infirmity in keeping the reservations under Clause (4) alone or under Clause (4) and Clause (1) of Article 16 together, exceeding 50 %. However, validity of the extent of excess of reservations over 50 % would depend upon the facts and circumstances of each case including the field in which and the grade or level of administration for which the reservation is kept. Although, further, legally and theoretically the excess of reservations over 50 % may be justified, it would ordinarily be wise and nothing much would be lost if the intentions of the framers of the Constitution and the observations of Dr. B. R. Ambedkar on the subject in particular are kept in mind. The reservations should further be kept category‑wise and grade‑wise at appropriate percentages and for practical purposes the extent of reservations should be calculated category‑wise and grade‑wise., Likewise, Pandian, Judge, after elaborate discussion, recorded his conclusions in this manner: I fully share the above views of Fazal Ali, Krishna Iyer, Chinnappa Reddy, Judges holding that no maximum percentage of reservation can be justifiably fixed under Articles 15(4) and/or 16(4) of the Constitution. Both show that the extent of whether a 50 % limit is applicable was considered by all the judges. Therefore, the arguments on behalf of the States and the contesting respondents in this regard are unmerited. Likewise, to say that whether a 50 % limit of reservation existed or not was not an issue or a point of reference is without basis; clearly that issue did engage the anxious consideration of the Court., The States had argued that providing a ceiling of 50 % amounts to restricting the scope of Part III and Part IV of the Constitution. A provision of the Constitution cannot be read down as to curtail its width, or shackle State power, which is dynamic. The State legislatures and executives are a product of contemporary democratic processes. They are alive to the needs of society and are rightfully entitled to frame policies for the people. Given the absence of any caste census but admitted growth of population, there can be no doubt that the proportion of the backward classes has swelled, calling for greater protection under Articles 15(4) and 16(4). Also, every generation has aspirations, which democratically elected governments are bound to meet while framing policies. In view of these factors, the fixed limit of 50 % on reservations requires to be reconsidered. Counsel submitted that whether reservations in a given case are unreasonable and excessive can always be considered in judicial review, having regard to the circumstances of the particular case, the needs of the State and by weighing the rights in the context of the State's priorities, having regard to its obligations under the Directive Principles of State Policy, which are now deemed as fundamental as the rights under Part III of the Constitution. The Court's flexibility in testing whether a measure is reasonable or not can always be retained and moulded appropriately., Lt. Col Khajoor Singh v. Union of India is an authority for the approach that this Supreme Court of India should adopt when it is asked to reconsider a previous precedent of long standing. The Court observed: We are of opinion that unless there are clear and compelling reasons, which cannot be denied, we should not depart from the interpretation given in these two cases and indeed from any interpretation given in an earlier judgment of this Supreme Court of India, unless there is a fair amount of unanimity that the earlier decisions are manifestly wrong. This Supreme Court of India should not, except when it is demonstrated beyond all reasonable doubt that its previous ruling, given after due deliberation and full hearing, was erroneous, go back upon its previous ruling, particularly on a constitutional issue., In Keshav Mills the Supreme Court of India elaborated what considerations would weigh with it when a demand for review of the law declared in a previous judgment is made: Frequent exercise by this Supreme Court of India of its power to review its earlier decisions on the ground that the view pressed before it later appears to be more reasonable may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. It would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations: what is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based; on the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Supreme Court bearing on the point not noticed; is the Court hearing such plea fairly unanimous that there is such an error in the earlier view; what would be the impact of the error on the general administration of law or on public good; has the earlier decision been followed on subsequent occasions either by this Supreme Court or by the High Courts; and would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Supreme Court of India is called upon to exercise its jurisdiction to review and revise its earlier decisions., Identical observations were made in Jindal Stainless. In Union of India v. Raghubir Singh, a Constitution Bench articulated the challenges often faced by this Supreme Court of India: The social forces which demand attention in the cauldron of change from which a new society is emerging appear to call for new perceptions and new perspectives. The acceptance of this principle ensured the preservation and legitimation provided to the doctrine of binding precedent, and therefore certainty and finality in the law, while permitting necessary scope for judicial creativity and adaptability of the law to the changing demands of society. The question then is not whether the Supreme Court of India is bound by its own previous decisions. It is not. The question is under what circumstances and within what limits and in what manner should the highest Court overturn its own pronouncements., What the respondents seek, in asking this Supreme Court of India to refer the issue to a larger bench, strikes at the very essence of equality. The review of precedents undertaken by Indra Sawhney not only spanned four turbulent decades, which saw several amendments to the Constitution, but led to a debate initiated by five judges in M.R. Balaji and followed up in at least more than ten decisions, later continued by seven judges in N.M. Thomas. This debate—between Balaji and Indra Sawhney—saw the Court's initial declaration that a 50 % ceiling on reservations should be imposed, which was questioned in three judgments, though not in majority decisions of various benches. Therefore, to decisively settle this important issue, the nine‑judge bench was constituted. Indra Sawhney decisively ruled that reservations through special provisions should not exceed 50 % by a 7‑2 majority. Two judges did not indicate any limit on reservations, nor did they indicate any clear guiding principle about what should be the Court's approach when a party complains that reservations are excessive or unreasonable. Indra Sawhney is equally decisive on whether reservations can be introduced for any new class, or the quantum of reservations, when introduced or changed, can be the subject matter of judicial review, for which, according to the majority of judges, the guiding principle would be the one enunciated in Barium Chemicals v. Company Law Board, 2019 Suppl. 3 Supreme Court Reports 311, to the effect that where a statutory power can be exercised through the subjective satisfaction of any authority or the State, it should be based on objective materials and on relevant considerations, eschewing extraneous factors., The salience of the issue under consideration is that equality has many dimensions. In the context of Articles 15(4) and 16(4), and indeed the power of classification vested in the State to adopt protective discrimination policies, there is an element of obligation, or a duty, to equalise those sections of the population who were hitherto invisible or did not matter. The reach of the equalising principle, in that sense, is compelling. Thus while, as explained by this Supreme Court of India in Mukesh Kumar v. State of Uttarakhand, there is no right to claim a direction that reservations should be provided (the direction in that case being sought was reservation in promotions in the State of Uttarakhand), the Court would intervene if the State acts without due justification, but not to the extent of directing reservations. Equally, the State's obligation to ensure that measures to uplift the educational and employment opportunities of all sections, especially vulnerable sections such as Scheduled Castes, Scheduled Tribes and backward classes of citizens, is underscored—not only in Article 15(4) but also by Article 46, though it is a Directive Principle., As this Supreme Court of India did, in P & T Scheduled Caste/Tribe Employee Welfare Association v. Union of India & Others, 1988 Supreme Court Reports Supplement (2) 623, when, upon withdrawal of a government order, reservation in promotion hitherto enjoyed by the employees was denied, the Court held: While it may be true that no writ can be issued ordinarily competing the Government to make reservation under Article 16(4) which is only an enabling clause, the circumstances in which the members belonging to the Scheduled Castes and the Scheduled Tribes in the Posts and Telegraphs Department are deprived of indirectly the advantage of such reservation which they were enjoying earlier while others who are similarly situated in the other departments are allowed to enjoy it make the action of the Government discriminatory and invite intervention by this Supreme Court of India., Protective discrimination, affirmative action, or any other term used by this Supreme Court of India means the measure of the State to ensure that past inequities are not carried on as today’s burdens, that full and meaningful opportunities are given to all in participation in governance structures: access to public institutions through special provisions under Article 15(4) and adequate representation through reservations under Article 16(4). They are tools in the repertoire of the States to empower those hitherto barred from sharing power and all that went with it, bringing first‑hand perspectives in policy making, acting as pathbreakers, breaking the glass ceiling, in short, imparting dimensions in democratic governance which were absent., A constant and recurring theme in the several judgments of Indra Sawhney was the concept of balance. This expression was used in two senses: one, to correct the existing imbalance which existed due to past discriminatory practices that kept large sections of society backward; two, the quest for achieving the balance between the guarantee of equality to all, and the positive or affirmative discrimination sanctioned by Articles 15(4) and 16(4)., B.P. Jeevan Reddy, Judge (for himself and four other judges) held that it needs no emphasis to say that the principal aim of Articles 14 and 16 is equality and equality of opportunity and that clause (4) of Article 16 was intended to share State power. The State power which was almost exclusively monopolised by the upper castes, a few communities, was now sought to be made broad‑based. The backward communities who were till then kept out of the apparatus of power were sought to be inducted therein and, since that was not practicable in the normal course, a special provision was made to effectuate the said objective. In short, the objective behind Article 16(4) is empowerment of the deprived backward communities to give them a share in the administrative apparatus and in the governance of the community., This theme of balance occurs forty‑nine times in various judgments. All the judges deal with it; although Pandian and Sawant, Judges, reject the numerical ceiling of 50 %, their judgments acknowledge the need to maintain the balance between the main parts of Articles 15 and 16, while ensuring that past discrimination is remedied. Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision though not an exception to clause (1). Both provisions have to be harmonised keeping in mind that both are restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4) conceived in the interest of certain sections of society should be balanced against the guarantee of equality enshrined in clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society., Dr. Thommen, Judge, expressed that reservations should not be an end‑all and should not be perpetuated beyond the objectives they were designed to achieve and that a balance has to be maintained between the competing values and the rival claims and interests so as to achieve equality and freedom for all. R.M. Sahai, Judge, expressed the idea that any State action, whether affirmative or benign, protective or competing, is constitutionally restricted first by operation of Article 16(4) and then by the interplay of Articles 16(4) and 16(1). The State has been empowered to invade the constitutional guarantee of all citizens under Article 16(1) in favour of any backward class of citizens only if, in the opinion of the Government, it is inadequately represented. The objective is to remove disparity and enable the unfortunate ones in society to share the services to secure equality in opportunity and status. Any State action must be founded on firm evidence of clear and legitimate identification of such backward class and their inadequate representation. Absence of either renders the action suspect. Both must exist in fact to enable the State to assume jurisdiction to take remedial measures. The State's latitude is further narrowed when, on existence of the two primary, basic jurisdictional facts, it proceeds to make reservation as the wisdom and legality of it has to be weighed in the balance of equality pledged and guaranteed to every citizen and tested on the anvil of reasonableness to smoke out any illegitimate use and restrict the State from crossing the clear constitutional limits., Constitutional adjudication involves making choices, which necessarily means that lines have to be drawn, and at times re‑drawn depending on the cauldron of change. It has been remarked that decisions dealing with fundamental concepts such as the equality clause are heavily value‑laden, and necessarily so, since value premises other than the values of equality and rationality are necessary to the determination that the clause requires., Interpretation of the Constitution, in the light of its uniqueness, was remarked upon by Dr. Aharon Barak, the distinguished former President of the Israeli Supreme Court: Some argue that giving a modern meaning to the language of the constitution is inconsistent with regarding the constitution as a source of protection of the individual from society. Under this approach, if the constitution is interpreted in accordance with modern views, it will reflect the view of the majority to the detriment of the minority. My reply to this claim is that a modern conception of human rights is not simply the current majority’s conception of human rights. The objective purpose refers to fundamental values that reflect the deeply held beliefs of modern society, not passing trends. These beliefs are not the results of public opinion polls or mere populism; they are fundamental beliefs that have passed the test of time, changing their form but not their substance., As noticed previously, the search of this Supreme Court of India, in Indra Sawhney after an exhaustive review of all previous precedents, was to indicate an enduring principle for application by courts that would strike the just balance between the aspirational rights and the corresponding duty of the States to introduce affirmative measures to combat inequality under Articles 15(4) and 16(4) on the one hand, and the principle of equality and its command against practising inequality in proscribed areas (caste being one, in both Articles 15 and 16). It was suggested during the hearing that the quantitative criteria (50 % limit on reservation) is too restrictive leaving no breathing room for democratically elected governments. This Court remarked in R.C. Poudyal v. Union of India that in the interpretation of a constitutional document, words are but the framework of concepts and concepts may change more than words themselves. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth. It is aptly said that the intention of a Constitution is rather to outline principles than to engrave details., The idea of a definitive and objective principle, in the form of a 50 % ceiling on limitation, emerges on an overall reading of Indra Sawhney. The argument made by the respondents was that this Court should not go by such a ceiling limit, but rather, while exercising its judicial review power, proceed on a case‑by‑case approach, resting its conclusions on fact‑dependent exercises, using other criteria such as reasonableness, proportionality, etc., for judging excessive reservations. However, what constitutes reasonableness and what is proportionate in a given case would be uncharted and indeterminate areas. It is one thing to try persuading the Court to discard a known principle in the light of its loss of relevance, yet for that argument to prevail, not only should the harm caused by the existing principle be proved, but also a principle that is sought to be substituted should have clarity; otherwise, the argument would be asking the Court to take a leap in the dark. It is not enough, therefore, to resort to observations such as the length of the leap to be provided depends upon the gap to be covered or the proportionality doctrine, because they reveal no discernible principle. Reasonableness is a familiar phrase in the constitutional lexicon; yet there is considerable subjectivity and relativity in its practice. Again, to quote Dr. Barak there are zones of reasonableness., This places the Supreme Court of India in a difficult situation, where the State’s choices require greater deference, and a corresponding narrowing of judicial review, given that the standard of review is the one indicated in Barium Chemicals. The South African Constitutional Court voiced a similar idea, in connection with an affirmative action program, when it observed that the fairness of a measure differentiating on any prohibited ground depends not only on its purpose, but on the cumulative effect of all relevant factors, including the extent of its detrimental effects on non‑designated groups., In another case, City Council of Pretoria v. Walker, Sachs, Judge of the South African Constitutional Court, remarked that processes of differential treatment which have the legitimate purpose of bringing about real equality should not be undertaken in a manner which gratuitously and insensitively offends and marginalises persons identified as belonging to groups who previously enjoyed advantage., Upon examination of the issue from this perspective, the ceiling of 50 % with the extraordinary circumstances exception is the just balance—the Goldilocks solution—that allows the State sufficient latitude to ensure meaningful affirmative action to those who deserve it, and at the same time ensures that the essential content of equality, and its injunction not to discriminate on the various proscribed grounds (caste, religion, sex, place of residence), is retained. This Supreme Court of India in M. Nagaraj v. Union of India observed that a numerical benchmark is the surest immunity against charges of discrimination. To dilute the 50 % benchmark further would be to effectively destroy the guarantee of equality, especially the right not to be discriminated against on the grounds of caste under Articles 15 and 16., In view of all these reasons, the argument that Indra Sawhney requires reconsideration and ought to be referred to a larger bench is hereby rejected., Affirmative Action and the Reservation Paradigm – Special Provisions. Before parting with this section, this opinion would dwell upon affirmative action and possibilities under the Constitution from a larger perspective. Most debates and precedents in the country have centred round the extent of reservation and the optimal balance between two extremes., During the hearing, it was pointed out that there are not enough opportunities for education of backward classes of citizens, and that schools and educational institutions are lacking. It was argued by the States that a sufficient number of backward classes of young adults are unable to secure admissions in institutions of higher learning.
id_886	17	It would be, in this context, relevant to notice that two important amendments to the Constitution of India, which have the effect of transforming the notion of equality, were made in the last 15 years. The first was the eighty sixth amendment which inserted Article 21A which had the effect of enjoining the state to provide free and compulsory education to all children in the age group six to fourteen. The second was the Constitution Ninety Third Amendment Act, which inserted Article 15 (5) enabling the state to make special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided. The transformative potential of these provisions is yet to be fully realized. Article 21A guarantees minimum universal education; whereas Article 15(5) enables access to backward classes of citizens admissions, through special provisions by the state, in private educational institutions. The Right to Education Act, 2009 provides a broad statutory framework for realization of Article 21A., The availability of these constitutional provisions, however does not mean that those belonging to backward class of citizens would be better off or would reap any automatic benefits. Here, it is relevant to consider that often, any debate as to the efficacy or extent of reservation, invariably turns to one stereotypical argument of merit. Long ago, in his important work Marc Galanter had dealt with the issue of merit in this manner: Let us take merit to mean performance on tests (examinations, interview, character references or whatever) thought to be related to performance relevant to the position (or other opportunity) in question and commonly used as a measure of qualification for that position. (In every case it is an empirical question whether the test performance is actually a good predictor of performance in the position, much less of subsequent positions for which it is a preparation.) Performance on these tests is presumably a composite of native ability, situational advantages (stimulation in the family setting, good schools, sufficient wealth to avoid malnutrition or exhausting work, etc.), and individual effort. The latter may be regarded as evidence of moral desert, but neither native ability nor situational advantages would seem to be. The common forms of selection by merit do not purport to measure the moral desert dimension of performance. Unless one is willing to assume that such virtue is directly proportionate to the total performance, the argument for merit selection cannot rest on the moral deservingness of individual candidates. Marc Galanter, Competing Equalities Law and the Backward Classes in India., In his judgment in Indra Sawhney, Justice J. Sawant also spoke of this phenomenon: The inequalities in Indian society are born in homes and sustained through every medium of social advancement. Inhuman habitations, limited and crippling social intercourse, low‑grade educational institutions and degrading occupations perpetuate the inequities in myriad ways. Those who are fortunate to make their escape from these all‑pervasive dragnets by managing to attain at least the minimum of attainments in spite of the paralysing effects of the debilitating social environment, have to compete with others to cross the threshold of their backwardness. Are not those attainments, however low by the traditional standards of measuring them, in the circumstances in which they are gained, more creditable? Do they not show sufficient grit and determination, intelligence, diligence, potentiality and inclination towards learning and scholarship? Is it fair to compare these attainments with those of one who had all the advantages of decent accommodation with all the comforts and facilities, enlightened and affluent family and social life, and high quality education? Can the advantages gained on account of the superior social circumstances be put in the scales to claim merit and flaunted as fundamental rights? Perhaps in many cases, those coming from the high classes have not utilised their advantages fully and their score, though compared with others, is high, is in fact not so when evaluated against the backdrop of their superior advantages – may even be lower. Those who advance merit contention, unfortunately, also ignore the very basic fact – that the traditional method of evaluating merit is neither scientific nor realistic. Marks in one‑time oral or written test do not necessarily prove the worth or suitability of an individual to a particular post, much less do they indicate his comparative calibre. What is more, for different posts, different tests have to be applied to judge the suitability. The basic problems of this country are mass‑oriented. India lives in villages, and in slums in towns and cities. To tackle their problems and to implement measures to better their lot, the country needs personnel who have firsthand knowledge of their problems and have personal interest in solving them. What is needed is empathy and not mere sympathy. One of the major reasons why during all these years after Independence, the lot of the downtrodden has not even been marginally improved and why majority of the schemes for their welfare have remained on paper, is perceptibly traceable to the fact that the implementing machinery dominated as it is by the high classes, is indifferent to their problems., There were observations earlier in the judgment of Justice Chinnappa Reddy in K.C. Vasant Kumar. Anatole France had in his ironic observations remarked once, that in its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread., The previous rulings in Vasant Kumar, and the comments of Dr. Amartya Sen in his work Merit and Justice were considered in some detail, in the recent ruling in B.K. Pavitra v. Union of India. Merit must not be limited to narrow and inflexible criteria such as one's rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration. The Supreme Court of India also noted that merit as we understand – i.e., performance in standardised tests – is largely dependent upon neutral factors, which discriminate in favour of those who are privileged., The argument of merit thus ignores the inherent and situational inequity between those who have no access to the means of achieving the goal of meaningful education, i.e., to colleges and professional institutions, based on competitive evaluations like tests, and those who have all the wherewithal for it. Those from low‑income groups cannot join coaching programmes, which hone candidates' skills in succeeding in an entrance test., Overemphasis on merit therefore ignores the burdens of the past, assumes that everything is perfectly fair now and asks the question of how the candidate fares in examinations that test only a narrow range of skills, mainly of linear‑type thought. This decontextualised, neutrality‑based thinking glosses over historical and centuries‑old inequalities, the burdens of which continue to plague those who labour under disadvantage, and through the so‑called level playing field of a common exam or evaluation, privileges those who had, and continue to have, access to wealth, power, premium education and other privileges, thus consolidating these advantages. Merit is a resource attractor. Those with it accumulate more of it, more wealth and acquire more power. They use that money and power to purchase more increments of merit for themselves and their children., The eminent legal thinker Michael Sandel, in his Tyranny of Merit, bemoans that the United States has now become a sorting machine that promises mobility on the basis of merit but entrenches privilege and promotes attitudes toward success corrosive of the commonality democracy requires (p. 155). He further says that first, all are told that although the promise of a mobile society based on merit is better than a hereditary hierarchy, it is important to comprehend that this promise does not come with any attendant promise to attenuate inequality in society. On the contrary, this promise legitimises inequalities that arise from merit rather than birth (p. 161). Second, we learn that a system that rewards the most talented is likely to undervalue the rest, either explicitly or implicitly., The context of these observations is to highlight that even when reservations are provided in education, sufficient numbers of the targeted students may not be able to achieve the goal of admission, because of the nature of the entrance criteria. Equality of opportunity then, to be real and meaningful, should imply that the necessary elements to create those conditions, should also be provided for. It would therefore be useful to examine, by way of illustration, the schemes that exist for advancing educational opportunities to Scheduled Caste (SC) and Scheduled Tribe (ST) and socially and educationally backward classes (SEBC) students., Central government scholarships are available to students from SC communities for studies in Class IX and X, conditional on parents’ or guardians’ income being less than ₹2,50,000 per annum. Eligible students must also not be covered by any other central government scholarships or funding, but may be eligible for the National Means‑cum‑Merit Scholarship Scheme. Under the pre‑matric scholarship scheme, day scholars receive ₹225 per month for ten months, with a books and ad‑hoc grant of ₹750 per annum. Hostellers receive ₹525 per month for ten months, with a similar grant of ₹1,000 per annum. For 2020‑21 a total amount of ₹750 crore was allocated, of which ₹404.93 crore was released. In the previous years, from 2015‑16 to 2019‑20, the total allocated budget was ₹1,922 crore, of which ₹1,561.90 crore was released to 12.185 lakh beneficiaries., Pre‑matric scholarships are provided for students of Class I to X whose parents are manual scavengers, tanners, waste‑pickers, or persons engaged in hazardous cleaning, as defined under the Manual Scavengers Act, 2013. Hostellers are provided ₹700 per month, while day scholars receive ₹225 per month through the academic year (ten months). Grants of ₹750 and ₹1,000 per annum are available to day‑scholars and hostellers respectively. Selected candidates are excluded from all other scholarships., At the post‑matric level, the Central Sector Scholarship Scheme of Top Class for SC Students makes scholarships available to SC students who have secured admission at IIMs, IITs, AIIMS, NITs, NLUs, other central government institutions, institutions of national importance, etc. The scholarship covers tuition fee (capped at ₹2 lakh per annum for private institutions), living expenses at ₹2,220 per month, allowance for books and stationery, and a computer and accessories (capped at ₹45,000 as one‑time assistance). Eligibility criteria require total family income from all sources to be less than ₹8,00,000 per annum. Under this scheme, in 2020‑21 the total budget allocation was ₹40 crore; of this, as on 31‑12‑2020 ₹24.03 crore were spent on 1,550 beneficiaries. For the previous years, i.e., 2016‑17 to 2019‑20, the total allocated budget was ₹131.50 crore, with a total expenditure of ₹127.62 crore, on 6,676 beneficiaries., Similar pre‑matric and post‑matric scholarships are also available to ST students. At the state level, various scholarship schemes are made available to SC and ST students, and to students belonging to minority communities and backward classes., In respect of the post‑matric scholarship for ST students, for the financial year 2020‑21 an amount of ₹1,833 crore was budgeted, out of which ₹1,829.08 crore was released. For the pre‑matric scholarship for ST students, for the financial year 2020‑21 an amount of ₹250 crore was budgeted, out of which ₹248.9 crore was released. Under the Central Scholarship Scheme of Top‑Class for ST students, in the year 2020‑21 a total budget of ₹29.31 crore was allocated, out of which ₹20 crore was disbursed among 2,449 beneficiaries (1,973 male and 512 female). In the year 2019‑20 a total budget of ₹20 crore was allocated, with disbursement of ₹19.1 crore to 1,914 beneficiaries. The State of Telangana had the highest number of beneficiaries, at 988, followed by Rajasthan at 363 and Andhra Pradesh at 147. The States of Chhattisgarh and Madhya Pradesh had 69 and 49 beneficiaries respectively., Under the National Fellowship Scheme for ST students (at higher levels of education such as Ph.D., M.Phil), an amount of ₹90.78 crore was disbursed to 2,525 fellowship scholars. Under the National Overseas Scholarship for ST students, for post‑graduate study abroad, in the year 2020‑21 an amount of ₹4.76 crore was disbursed to 30 beneficiaries., In respect of Other Backward Classes (OBCs), central government pre‑matric and post‑matric scholarships are available for students whose parents’ or guardians’ income from all sources does not exceed ₹2.5 lakh. Under the pre‑matric scholarship, ₹100 per month for ten months is given to day scholars and ₹500 per month for ten months to hostellers. For the year 2020‑21 (as on 31‑12‑2020) a total budget of ₹175 crore was allocated, of which ₹118.09 crore was provided to 2 million beneficiaries. In the previous years, from 2015‑16 to 2019‑20, a total of ₹759.9 crore was allocated, of which ₹701.42 crore was released to 4.6308 million beneficiaries., Under the post‑matric scholarship for OBCs, for the year 2020‑21 a total budget of ₹1,100 crore was allocated, of which ₹802.27 crore was provided to 8 million beneficiaries. In the previous years, from 2015‑16 to 2019‑20, a total budget of ₹5,035.75 crore was allocated, of which ₹4,827.89 crore was released for 20.796 million beneficiaries., A national fellowship is also available to OBC students at the degree levels of M.Phil and Ph.D. Fellowships are awarded to research students at ₹31,000 per month for junior research fellows and at ₹35,000 per month for senior research fellows. Under this fellowship, for the year 2020‑21 a budget of ₹45 crore was allocated, of which ₹18 crore is expected to be provided to 2,900 anticipated beneficiaries. In the previous years, from 2016‑17 to 2019‑20, ₹149.5 crore was allocated, of which approximately ₹154 crore was provided to 7,200 beneficiaries (5,100 provisional)., A report of the NITI Aayog, based on data from the 2001 Census, analysed that the gap between literacy rates of the general population and that of the SC population had not reduced over the years. The rate of school drop‑outs was seen as a crucial indicator of lack of educational development. The dropout rates for SC children were very high: 32.7 % in Classes I‑V; 55.2 % in Classes I‑VIII; and 69.1 % in Classes I‑X in 2004‑05. The gap between the SC population and the general category was seen to increase at higher levels of schooling. Data on dropout rates for ST students in the year 2006‑07 shows that the primary level (Class I‑V) 33.2 % ST students drop out. At the elementary level (Class I‑VIII) this increases to 62.5 %, while at the secondary level (Class I‑X) the drop‑out rate is 78.7 %. For the same time frame, the drop‑out rates for SC students at the primary level was 36 %, at the elementary level 53.1 %, and at the secondary level 69 %. According to the Annual Report (Periodic Labour Force Survey) for the year 2018‑19, the literacy rate for age 7 and above was 69.4 % for STs, 72.2 % for SCs, 77.5 % for OBCs, and 85.9 % for others., This data makes a case for an intensive study into diverse areas such as the adequacy or otherwise of scholarships, quantum disbursed, eligibility criteria (the maximum family income limit of ₹2,50,000 possibly excludes large segments of beneficiaries, given that even Group D employment in the Central Government can result in exclusion of any scholarships to children of such employees), and reconsideration about introducing other facilities, such as incentivising scholarships, grants and interest‑free or extremely low‑interest education loans to widen the net of recipients and beneficiaries. States and the Union government may also revisit the threshold limits and their tendency to exclude otherwise deserving candidates. For instance, even if an SC/ST or SEBC household has an income of ₹6,00,000 per year, the denial of scholarship to a deserving student from that background cannot equate him or her with another candidate whose family income might be four times that amount and who might be able to pay annual fees for medical education in private educational institutions. In other words, there needs to be constant scrutiny, review and revision of these policies and their effectiveness, besides the aspect of increasing funding., The United States Experience: In Fullilove v. Klutznick, the US Supreme Court rejected a challenge to the constitutionality of a federal law demanding preferential treatment of minority‑owned businesses through a racial quota system. The challenged law prescribed pre‑conditions for receipt of state and local government public works grants upon the private entity’s assurance that at least 10 % of the amount of each grant would be spent on contracts with minority business enterprises (MBEs). Public contracts normally were awarded to the lowest bidder; the provision operated to grant public works contracts to the lowest bidder who complied with the 10 % set‑aside goal. The executive policy framed pursuant to the Act imposed upon those receiving grants and their prime contractors an affirmative duty to seek out and employ available, qualified, and bona‑fide MBEs. As the objective of the MBE provision was to overcome longstanding barriers to minority participation in public contracting opportunities, the set‑aside provision favoured a higher MBE bid as long as the higher price reflected inflated costs resulting from past disadvantage and discrimination. The administrative program therefore authorized the Economic Development Agency to waive the minority participation requirement where a high minority business bid is not attributable to the present effects of past discrimination. The plaintiffs in Fullilove were non‑minority associations of construction contractors and subcontractors. They alleged that enforcement of the Public Works Act’s MBE requirement caused economic injury to the non‑minority business plaintiffs and asserted that the MBE 10 % quota provision violated the equal protection clause of the Fourteenth Amendment and the equal protection element of the due process clause of the Fifth Amendment. The US Supreme Court held that the interference with the business opportunities of non‑minority firms caused by the 10 % set‑aside program did not render the Act constitutionally defective. The Court rejected the alleged equal protection violation on the grounds that the Act ensured equal protection of the laws by providing minority businesses an equal opportunity to participate in federal grants. The later decision Adarand Constructors, Inc. v. Penal held that federal affirmative action programs are now subject to strict scrutiny, just as state and local programs were since 1989. The court held that federal racial classifications, like those of a state, must serve a compelling governmental interest, and must be narrowly tailored to further that interest., South Africa: Under South Africa’s Constitution of 1998, Chapter 2, Article 9(3) dealing with Equality reads: “The state may not unfairly discriminate directly or indirectly against any one on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” Chapter 10 says that public administration must be broadly representative of the South African people, with objectivity and fairness, and it needs to redress the imbalances of the past to achieve broad representation. In furtherance of these provisions, in October 1998, the Employment Equity Act was legislated. The Act starts with the premise that “pronounced disadvantages” created by past policies cannot be redressed by a simple repeal of past discriminatory laws, and there was a need to enforce “employment equity to redress the effects of discrimination,” and “achieve a diverse workforce broadly representative” of the people of South Africa. The Act has two purposes: (1) to promote equal opportunity and fair treatment in employment through the elimination of unfair discrimination, and (2) to implement affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workforce. Designated groups are defined as black people (who include Africans, Coloureds and Indians), women, and people with disabilities. Affirmative action measures for designated groups must include identification and removal of barriers adversely affecting them, actions to further diversity, reasonable accommodations to ensure equal opportunity and equitable representation, and efforts at training to retain and develop them. Representation is extended to all occupational categories and levels in the workforce and this is to be ensured through preferential treatment and numerical goals, but not with quotas. The Employment Equity Plan itself must state the objectives to be achieved each year, the affirmative action measures with timetables and strategies to be implemented to accomplish them, and the procedure to evaluate the plan. Each plan ought not to be for a period of less than one year, and not longer than five years. While preferential treatment is meant for only suitably qualified people, such suitability may be a product of formal qualifications, prior learning, relevant experience, or capacity to acquire, within a reasonable time, the ability to do the job., Under the Employment Equity Act, employers must consult with their employees and representative trade unions, after which an audit of employment policies and practices in the workplace must be undertaken. Analysis of the information garnered in the audit is meant to assist in developing demographic profiles of the workforce, and identifying barriers to the employment or advancement of designated groups. Under‑representation of designated groups in all categories of work must also be identified. Quotas are expressly prohibited under Section 15(3) of the Act. In 2003, the Black Economic Empowerment Act was legislated. This Act has as its purpose the economic empowerment of all black people, including women, workers, youth, people with disabilities and people living in rural areas. To measure compliance with black economic empowerment (BEE) requirements, the Department of Trade and Industry uses a balanced scorecard, consisting of three broad components. The scorecard will be used for government procurement, public‑private partnerships, sale of state‑owned enterprises, when licences are applied for, and for any other relevant economic activity. Strategies aimed at levelling the playing field may include the elimination of employment barriers such as adapting testing requirements to compensate for educational disadvantage or lack of work experience; reviewing recruitment, selection and promotion procedures to ensure fairness in job competition; accelerated and corrective training; and the transformation of work environments that exclude or otherwise disadvantage designated groups, e.g., integrating career and family responsibilities (flexible work schedules, child care structures, facilitating career breaks, etc.)., Canada: In Canadian National Railway Co v. Canada (Canadian Human Rights Commission), Justice Dickson reasoned that the purpose of an affirmative action programme is to break a continuing cycle of systemic discrimination. The goal is not to compensate past victims or even to provide new opportunities for specific individuals who have been unfairly refused jobs or promotion in the past, but to ensure that future applicants and workers from the affected groups will not face the same insidious barriers that blocked their forebears. In Ontario (Human Rights Commission) v. Ontario (Ministry of Health), the Ontario Court of Appeal interpreted the affirmative action provisions of the Ontario Human Rights Code 1990 and the Canadian Human Rights Act 1985, to reinforce the important insight that substantive equality requires positive action to ameliorate the conditions of disadvantaged groups. One of the important purposes of the provisions is to protect affirmative action programmes from being challenged as violating the formal equality provisions contained elsewhere in the Code or Act. Affirmative action, according to the court, is aimed at achieving substantive equality by enabling or assisting disadvantaged persons to acquire skills so that they can compete equally for jobs on a level playing field with those who do not have the disadvantage. The purpose of section 14(l) is not simply to exempt or protect affirmative action programs from challenge. It is also an interpretative aid that clarifies the full meaning of equal rights by promoting substantive equality., Possibilities for affirmative action other than reservation in India: The United States practice of encouraging diversity by incentivising it, for instance, the award of government contracts to firms that have a good record of recruiting members from racially or ethnically disadvantaged groups, has found echo in policies in Madhya Pradesh. Other states such as Uttar Pradesh, Bihar, Karnataka, Andhra Pradesh and Telangana have followed a policy of affirmative action in awarding contracts and in that manner protecting SC and ST entrepreneurs’ entry into trade, business and other public works as contractors. Recently, Karnataka enacted legislation, namely the Karnataka Transparency in Public Procurement (Amendment) Act, 2016, which reserves 24.1 % for SC and ST contracts in all government works, public contracts up to ₹50 lakh. This law aims to ensure the presence of SC and ST contractors and to get the award of government work without rigid tender process. Orissa also provides for a price preference to SC/ST entrepreneurs to the extent of 10 % of contracts of a certain value., There is empirical evidence in India, in different sectors, that access to productive employment is confined to a few sections of the workforce, among the most backward of classes, while the rest eke out a living in the informal economy. The faultlines of division between those who are employed in good jobs and those who are excluded run deep, and are based on caste, religion, region, and other sectarian divisions all of which overlap with class and gender, such that even within the small section of the workforce which is productively employed in decent jobs, some groups are better represented than others, placed higher than others, while some castes and communities are practically absent in the top echelons of the private corporate sector. While private employers firmly believe that jobs should be allocated on the basis of individual merit, their views about how merit is distributed overlap strongly with existing stereotypes around caste, religion, gender and regional differences., A method by which the private sector can substantively contribute to alleviate discrimination and inequality is through its corporate social responsibility (CSR) programmes. CSR has been compulsory in India since 2013. These initiatives have taken two major forms: education of the under‑privileged either through special schools or other programmes to support school‑going children, and support to poor women through home‑based work or micro‑finance.
id_886	18	While these measures are significant, there are other spheres where Corporate Social Responsibility could be directed, with even greater benefits. The definition and scope of Corporate Social Responsibility needs to be broadened to include measures to counteract the natural tendencies towards exclusion of certain groups. Private sector management needs to show sensitivity to societal patterns of exclusion and must consciously make an attempt not to fall prey to dominant social stereotypes, which penalise people due to their birth into stigmatising jobs, even if they might be individually qualified and competent., In addition to being sensitised to the problem of under‑representation at the time of employment (by actively pursuing policies to promote and/or by equal‑opportunity employment policies), private companies can also pay attention to supplier diversity in matters of procurement. By encouraging supplies from firms owned by Scheduled Castes, Scheduled Tribes, or those from backward or deprived classes, the large organised private sector in India could give a huge boost to the micro, medium and small enterprises owned by entrepreneurs from such marginalised groups. Indeed, this is also one of the planks used in the United States, where minority‑owned businesses are not only given active financial incentives by the government, but larger firms are expected to source a part of their supplies from minority‑owned businesses. Given that typically, Scheduled Caste, Scheduled Tribe and backward‑class individuals owned micro‑enterprises are likely to employ a greater proportion of persons from these communities (as compared to enterprises owned by upper‑caste groups), an active supplier‑diversity programme would also boost employment., In view of all these developments, it is time that the States and the Union Government gather data about the extent and reach of the existing schemes for employment, and in the field of education take steps to ensure greater access by, wherever necessary, increasing funding, increasing the number and extent of coverage of scholarships, and setting up all manner of special institutions which can train candidates aspiring for higher education to increase their chances of entry in admission tests, etc. Likewise, innovative employment incentives to the private sector, especially in the manner of employment in contracts or projects awarded by the State or its instrumentalities, need to be closely examined and implemented. These welfare measures can also include giving tax incentives to schemes that fund scholarships and easy (or interest‑free) loans to Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Class students, which can enhance their access to educational institutions. Today, even if a Scheduled Caste or Socially and Educationally Backward Class candidate secures admission in a common entrance examination for a medical seat in a private institution, the amounts charged as annual fees would exclude most of such candidates (even those who are ineligible to government scholarships, as being marginally above the threshold of 2,50,000 per annum family income). Other incentives, such as awarding marks while evaluating private entities for the purpose of public tenders and giving them appropriate scores or advantage if their workforce employs defined percentages of Scheduled Caste, Scheduled Tribe or Socially and Educationally Backward Class individuals, would also make a substantial difference., Re Point No (2) whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes Act, 2018 as amended in 2019 granting 12 % and 13 % reservation for Maratha community in addition to 50 % social reservation is covered by exceptional circumstances as contemplated by the Constitution Bench in Indra Sawhney’s case? and Re Point No (3) whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M. C. Gaikwad has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney? I agree, with respect, with the reasoning and conclusions of Justice Ashok Bhushan on the above two points of reference and have nothing to add., Re: Point No. 4 whether Article 342 of the Constitution abrogates State power to legislate or classify in respect of any backward class of citizens and thereby affect the federal policy/structure of the Constitution of India? And Point No. 5 whether State power to legislate in relation to any backward class under Articles 15(4) and 16(4) is anyway abridged by Article 342A read with Article 366(26C) of the Constitution of India? Both the above points of reference, by their nature, have to be and therefore are considered together., The Constitution (One Hundred and Second Amendment) Act, 2018, after its passage became the Constitution (One Hundred and Second Amendment) Act, 2018; it received the assent of the President of India and came into force on 15 August 2018. The amendment inserted Articles 338B and 342A. These are reproduced below:, 338B. (1) There shall be a Commission for the socially and educationally backward classes to be known as the National Commission for Backward Classes. (2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice‑Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice‑Chairperson and other Members so appointed shall be such as the President may by rule determine. (3) The Chairperson, Vice‑Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal. (4) The Commission shall have the power to regulate its own procedure. (5) It shall be the duty of the Commission (a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes; (c) to participate and advise on the socio‑economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports the recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio‑economic development of the socially and educationally backward classes; and (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the socially and educationally backward classes as the President may, subject to the provisions of any law made by Parliament, by rule specify. (6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non‑acceptance, if any, of any of such recommendations. (7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the State Government which shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non‑acceptance, if any, of any of such recommendations. (8) The Commission shall, while investigating any matter referred to in sub‑clause (a) or inquiring into any complaint referred to in sub‑clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses and documents; (f) any other matter which the President may, by rule, determine. (9) The Union and every State Government shall consult the Commission on all major policy matters affecting the socially and educationally backward classes., 342A. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification., Article 366(26C), which defined socially and educationally backward classes, was inserted; it is reproduced below for reference: (26C) \socially and educationally backward classes\ means such backward classes as are so deemed under Article 342A for the purposes of this Constitution., The Bill which was moved in Parliament by which the 102nd amendment was introduced, inter alia, stated as follows: Vide the Constitution (Eighty‑ninth Amendment) Act, 2003, a separate National Commission for Scheduled Tribes was created by inserting a new Article 338A in the Constitution. Consequently, under Article 338 of the Constitution, the reference was restricted to the National Commission for the Scheduled Castes. Under clause (10) of Article 338 of the Constitution, the National Commission for Scheduled Castes is presently empowered to look into the grievances and complaints of discrimination of Other Backward Classes also. In the year 1992, the Supreme Court of India in the matter of Indra Sawhney and others Vs. Union of India and others (All India Reporter 1993, Supreme Court of India 477) directed the Government of India to constitute a permanent body for entertaining, examining and recommending requests for inclusion and complaints of over‑inclusion and under‑inclusion in the Central List of Other Backward Classes. Pursuant to the said judgment, the National Commission for Backward Classes Act was enacted in April 1993 and the National Commission for Backward Classes was constituted on 14 August 1993 under the said Act. At present the functions of the National Commission for Backward Classes are limited to examining requests for inclusion of any class of citizens as a backward class in the lists, hearing complaints of over‑inclusion or under‑inclusion of any backward class in such lists and tendering advice to the Central Government as it deems appropriate. Now, in order to safeguard the interests of the Socially and Educationally Backward Classes more effectively, it is proposed to create a National Commission for Backward Classes with constitutional status at par with the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes., The National Commission for the Scheduled Castes has recommended in its Report for 2014‑15 that the handling of the grievances of the Socially and Educationally Backward Classes under clause (10) of Article 338 should be given to the National Commission for Backward Classes., In view of the above, it is proposed to amend the Constitution of India, inter alia, to provide the following, namely: (a) to insert a new Article 338 so as to constitute the National Commission for Backward Classes which shall consist of a Chairperson, Vice‑Chairperson and three other Members. The said Commission will hear the grievances of Socially and Educationally Backward Classes, a function which has so far been discharged by the National Commission for Scheduled Castes under clause (10) of Article 338; and (b) to insert a new Article 342A so as to provide that the President may, by public notification, specify the Socially and Educationally Backward Classes which shall for the purposes of the Constitution be deemed to be Socially and Educationally Backward Classes., The appellants argue that the Maharashtra Socially and Educationally Backward Classes Act (which was enacted and brought into force on 30 November 2018) could not have been enacted and is clearly void. It is argued that on a plain reading of Article 342A read with Article 366(26C), it is clear that States were denuded of their power to identify backward classes and the task was to be performed exclusively by the National Commission for Backward Classes set up under Article 338B (hereafter NCBC)., Mr. Arvind Datar, Mr. Shyam Divan and Mr. Gopal Sankaranarayanan, learned senior counsel emphasized that the expression \for the purposes of this Constitution\ under Article 366(26C) and Article 342A(1) can only imply that the State's jurisdiction and power to identify a community as a backward class stood denuded. Consequently, it is only upon the recommendation of the NCBC that any community can henceforth be included in the list of Socially and Educationally Backward Classes. It was submitted that by virtue of Article 342A, even the Union or the Central Government ceases to have any power to modify, add to or delete from the list so notified under Article 342A(1). It is Parliament alone which can make such modification, deletion or alteration., Learned senior counsel argued that the decision in Indra Sawhney required the setting up of permanent commissions for identifying communities or castes such as backward classes to enable their notification by their respective governments. In the light of this recommendation and having regard to the principal existing provision under Article 340, Parliament had enacted the National Commission for Backward Classes Act, 1993 (hereafter the NCBC Act). That enactment used the expression \Central List\ in Section 2(c)., Learned counsel for the appellants submitted that while amending the Constitution, the expression Central List meant the list to be published by the President on the aid and advice of the Council of Ministers, after consultation with the Governors, i.e., the aid and advice of the State Governments. Thus, having regard to the plain language of Article 366(26C) and Article 342A as well as the provisions in Article 338B(7), (8) and (9), there is no question of the State Governments or State Legislatures retaining any power to identify backward classes. That power is with the President., It was submitted by Mr. Gopal Sankaranarayan, learned senior counsel that the object which impelled the Constitution (One Hundred and Second Amendment) Act, 2018 appears to be to set up a national body for evolving scientific criteria of uniform application with regard to the identification of communities as backward classes. It was submitted that the frequent demands by various communities to be included in the list of backward classes to gain access to State‑funded institutions and for public employment meant that States either succumb to such pressure or apply ad‑hoc criteria and set up ad‑hoc bodies which could not consider issues in a dispassionate and holistic manner., Learned counsel relied upon the decision of this Supreme Court of India in Ram Singh & Ors. v. Union of India to say that demands made by such communities led to States providing special reservation, which became the subject matter of judicial scrutiny., Learned counsel also referred to agitations for inclusion of communities in other States such as Rajasthan which also led to repeated litigation., The perception of a self‑proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunate” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. Neither can backwardness any longer be determined on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State. Therefore, it was argued that to avoid these instances, and to ensure that a national standard for considering the relevant indicia for backwardness is constitutionally applied, an amendment to the Constitution was made., Learned counsel urged that the position adopted by the States, i.e., that they were not denuded of executive and legislative power and that the amendment only sought to give additional constitutional status to the existing NCBC, is unfounded. It was pointed out that before the coming into force of the Constitution (One Hundred and Second Amendment) Act, 2018, Article 340 existed under the original Constitution. Parliament, in exercise of its legislative power, enacted the NCBC Act. The NCBC had existed for 27 years and had conducted surveys and identified several communities as backward. The lists published by it were in existence and were used by the Central Government for its purposes, including public employment. Undoubtedly, not all communities included in the States' lists were part of the NCBC list, but the list was broadly common to a large extent., Learned counsel emphasized that there was no necessity for bringing any constitutional amendment if the new Commission were to be given constitutional status and the lists published by it made binding only on the Central Government, which could be modified by Parliament alone. It was submitted that State interference with the Central List did not warrant such a drastic measure as a constitutional amendment., Mr. Sankaranarayanan submitted that although there are passages in the report of the Select Committee of the Rajya Sabha, Parliament had discussed the amendment and taken into account the views of certain individuals; the fact remains that it is the text of the Constitution as amended which is to be interpreted. Learned counsel relied upon the decisions reported as State of Travancore‑Cochin v. Bombay Company Ltd; Aswini Kumar Ghose & Anr. v. Arabinda Ghose & Anr.; and P. V. Narasimha Rao v. State. He also referred to the decision in Sanjeev Coke Manufacturing v. Bharat Coking Coal Ltd. & Anr., It was submitted that the consistent opinion of this Supreme Court of India has been the one adopted in Pepper v. Hart, which permits reference to statements made in the House at the time of the introduction of a Bill as an aid to construction of legislation which is ambiguous or obscure, and not in any other circumstances. It was thus submitted that the intention of the amendment was to ensure that a uniform standard, applied objectively to backwardness, was adopted for the purposes of the Constitution. This was also aimed at eliminating the mischief that led to the introduction of communities as a consequence of protests triggered by political considerations on the eve of elections., The submissions articulated on behalf of the respondent States by Mr. Mukul Rohatgi, Mr. Kapil Sibal, Dr. A. M. Singhvi and Mr. Naphade, Additional Advocates General and Standing Counsel appearing on behalf of the various States, were that the interpretation suggested by the appellants is drastic. It was emphasized that the States' responsibility under Articles 15(4) and 16(4) to make special provisions including reservations is undeniable. In the absence of any amendment to these provisions, learned counsel submitted that the Constitution (One Hundred and Second Amendment) Act, 2018 cannot be so interpreted as to denude the States of their powers altogether., Learned counsel submitted that pursuant to the recommendations and directions in Indra Sawhney, not only was the NCBC Act enacted; in addition, different States also set up permanent commissions to identify communities as backward classes for the purpose of the Constitution. Those commissions were set up in exercise of legislative powers traceable to one or the other entry in List II of the Seventh Schedule to the Constitution. The plenary legislative power of the States remains unaltered. That being the case, this Supreme Court of India should not accept the appellants' submission that Articles 338B and 342A place fetters upon the exercise of such legislative and executive power of the States., Learned counsel submitted that this Supreme Court of India should closely examine the contents of the report of the Select Committee of the Rajya Sabha and the statements made by the Government, particularly that the power and jurisdiction of the States would remain unaffected. It was further urged that this Supreme Court of India can and should have looked into the contents of these reports to discern the true meaning and intent behind the Constitution (One Hundred and Second Amendment) Act, 2018, which was not to disrupt the existing legislative arrangement between the Centre and the State. In this regard, learned counsel placed reliance upon the judgment of this Supreme Court of India in Kalpana Mehta and Ors. v. Union of India and Ors., and submitted that the Court can take aid of reports of Parliamentary Committees for the purpose of appreciating the historical background of statutory provisions and to resolve ambiguity in the legislation., It was submitted that if the matter were considered in the true perspective and the report of the Select Committee examined as an aid to interpretation of the Constitution (One Hundred and Second Amendment) Act, 2018, especially Article 342A, it would be apparent that Parliament never intended, by the amendment, to disturb the existing order and denude the States of their executive or legislative power to identify backward classes while making special provisions under Articles 15(4) and 16(4). It was submitted that Indra Sawhney only created a larger movement for the setting‑up of commissions by the Union and the States. Learned counsel emphasized that even while identifying the communities for the purpose of the Central List, the views of the States were always ascertained. Parliament merely sought to replicate the amendment by which collection of data has been undertaken under Article 338 (in relation to Scheduled Castes). The introduction of Article 338B was in line with the introduction of Articles 338A and 338 which enable the setting‑up of National Commissions for Scheduled Castes and Scheduled Tribes., It was submitted that Articles 366(26C), 338B and 342A(1) have to be read harmoniously in the light of the expression \Central List\ which occurs in Article 342A(2). This would be in keeping with the debates and assurances held out in the Select Committee report that the States' power would continue to remain unaffected. Such construction would result in a harmonious interpretation of all provisions of the Constitution., The learned Attorney General, appearing on account of notice issued by this Supreme Court of India, urged that the 102nd Amendment did not bring about a radical change in the power of identification of backward classes in relation to the States and that this power continues to remain with the States. He submitted that the comparison by the appellants with the powers conferred by Article 338 and the Presidential powers under Articles 341 and 342 is inapt, because those were original provisions of the Constitution having a historical background. It was submitted that the States' responsibilities to uplift weaker sections, apparent from the directive principle under Article 46, are carried out through affirmative policies under Articles 15(4) and 16(4). To alter this balance, which had existed since the Constitution came into force, is too drastic, and nothing in the debates leading to the 102nd Amendment or in any material such as the Select Committee Report suggests that end., The learned Attorney General also submitted that the object of the 102nd Amendment was to ensure that a commission with constitutional status would periodically examine the needs of Socially and Educationally Backward Classes (SEBC), suggest inclusion or exclusion of such classes in a list for the purposes of the Central Government or central public sector corporation employment, and extend other benefits under Union educational and other institutions, under Articles 15(4) and 16(4). In case such a list is drawn and published under Article 342A(1), only Parliament has the power to modify it. This does not disturb or take away the States' power to identify or include communities as backward classes of citizens for the purposes of benefits they wish to extend through state policies and legislation, or for reservation in state employment under Article 16(4). He highlighted that the phrase \Unless the context otherwise requires\ is the controlling phrase preceding the definition of various terms under Article 366 of the Constitution. Therefore, if the context is different—as is evident from Article 342A(2)—the term \Central List\ should be given meaning, and that meaning should prevail in the construction of the entire provision., The learned Attorney General further argued that this Supreme Court of India had specifically recognized the States' power to identify, make special provisions, and provide reservations in Indra Sawhney. He urged that the 102nd Amendment was not meant to limit this constitutional obligation of the States, but rather to streamline the method of identification of socially and educationally backward classes of citizens for the purpose of central employment and centrally funded schemes, institutions and facilities. It was urged that this is apparent from the use of the expression \Central List\ in Article 342A(2), which must guide the interpretation of the list referred to in Article 342A(1)., Before proceeding with the interpretation of the provisions of the 102nd Amendment, it would be useful to briefly recapitulate the provisions that existed for the identification of Scheduled Castes and Scheduled Tribes. Before the Constitution was framed, the Government of India Act, by Section 26 defined Scheduled Castes. Dr. J. H. Hutton, a Census Commissioner of India, framed a list of the depressed classes systematically, and that list formed the basis of an order promulgated by the British Government in India called the Government of India (Scheduled Castes) Order, 1936. This Supreme Court of India, in one of its decisions, noticed that such list became the basis for the Constitution (Scheduled Castes) Order, 1950., Article 338 as originally enacted provided for the appointment of a special officer for the Scheduled Castes and Scheduled Tribes to investigate all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes under the Constitution and to report to the President on their working. In 1990, this position changed, and the Constitution (Sixty‑Fifth) Amendment Act was enacted to create a five‑member commission under Article 338. The statement of objects envisioned that such a commission would be a more effective arrangement for the constitutional safeguards for Scheduled Castes and Scheduled Tribes than a single Special Officer. It is also felt that it is necessary to elaborate the functions of the said Commission so as to cover measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio‑economic development of the Scheduled Castes and Scheduled Tribes., The composite Commission for Scheduled Castes and Scheduled Tribes was bifurcated by another amendment—the Constitution (Eighty‑Ninth) Amendment Act, 2003—which inserted Article 338A, enabling the creation of a commission exclusively to consider measures and make recommendations for the amelioration of Scheduled Tribes., The relevant provisions relating to Scheduled Castes and Scheduled Tribes under the Constitution are extracted below: Article 366 Definitions (24) Scheduled Castes means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution; (25) Scheduled Tribes means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution; Article 338.
id_886	19	There shall be a Commission for the Scheduled Castes to be known as the National Commission for the Scheduled Castes. Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice‑Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice‑Chairperson and other Members so appointed shall be such as the President may by rule determine. The Chairperson, Vice‑Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal. The Commission shall have the power to regulate its own procedure. It shall be the duty of the Commission (a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes; (c) to participate and advise on the planning process of socio‑economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio‑economic development of the Scheduled Castes; and (f) to discharge such other functions in relation to the protection, welfare, development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by rule specify., The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non‑acceptance, if any, of any of such recommendations. Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non‑acceptance, if any, of any of such recommendations., The Commission shall, while investigating any matter referred to in sub‑clause (a) or inquiring into any complaint referred to in sub‑clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters: (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any documents; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses and documents; (f) any other matter which the President may, by rule, determine. The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes., Before the 102nd Amendment Act, the following sub‑Article formed part of Article 338: In this article, references to the Scheduled Castes and to such other backward classes as the President may, on receipt of the report of a Commission appointed under clause (1) of Article 340, by order specify and also shall be construed as including references to the Anglo‑Indian community. By the 102nd Amendment Act, the words ‘and to such other backward classes as the President may, on receipt of the report of a Commission appointed under clause (1) of Article 340, by order specify’ were deleted. The other provisions relating to Scheduled Castes and Scheduled Tribes are as follows: Article 338A establishes the National Commission for Scheduled Tribes., There shall be a Commission for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes. Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice‑Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice‑Chairperson and other Members so appointed shall be such as the President may by rule determine. The Chairperson, Vice‑Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal. The Commission shall have the power to regulate its own procedure. It shall be the duty of the Commission (a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes; (c) to participate and advise on the planning process of socio‑economic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio‑economic development of the Scheduled Tribes; and (f) to discharge such other functions in relation to the protection, welfare, development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify. The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non‑acceptance, if any, of any such recommendations. Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non‑acceptance, if any, of any of such recommendations. The Commission shall, while investigating any matter referred to in sub‑clause (a) or inquiring into any complaint referred to in sub‑clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters: (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses and documents; (f) any other matter which the President may, by rule, determine. The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes., Article 341 provides that the President may, with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory. Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification any caste, race or tribe or part of or group within any caste, race or tribe, but a notification issued under clause (1) shall not be varied by any subsequent notification. Article 342 provides that the President may, with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory. Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification any tribe or tribal community or part of or group within any tribe or tribal community, but a notification issued under clause (1) shall not be varied by any subsequent notification., It would be useful at this stage to recollect that before Indra Sawhney, two commissions were set up at the national level to examine and make suitable recommendations in respect of identification of other backward classes. These were the Kaka Kalelkar Commission and the B.P. Mandal Commission. The Kalelkar Commission, after an exhaustive survey and study, identified 2,399 backward groups and recommended several measures for their advancement. The Mandal Commission report identified individuals belonging to 3,743 different castes and communities as backward., The consistent view while interpreting Articles 341 and 342 has been that the power which the Constitution conferred is initially upon the President, who, after the introduction of the 65th and 89th Amendments and the insertion of Articles 338 and 338A, is aided in the task of identification of the Scheduled Castes and Scheduled Tribes by two separate Commissions to include or exclude members claiming to be Scheduled Castes or Scheduled Tribes. The view of the Supreme Court of India has been that once a determination has been done, no court can, by interpretive process, or even the executive through its policies, include members of other communities as falling within a particular class or described community or extend the terms of the determination under Articles 341 or 342. The power to further include or modify the contents of the existing list of Scheduled Castes/Scheduled Tribes is with Parliament only by reason of Article 341(2) and Article 342(2). This position has been consistently followed in a series of decisions. Likewise, in the interpretation as to which communities are categorized as Scheduled Castes or Scheduled Tribes, the Supreme Court of India has been definite that only such classes or communities who specifically fall within one or the other lists constitute Scheduled Castes or Scheduled Tribes for the purpose of this Constitution under Article 366(24) and Article 366(25). This has been established in the decisions of the Supreme Court of India in Bhaiya Lal v. Harikishan Singh, Basavalingappa v. Munichinnappa and Kishori Lal Hans v. Raja Ram Singh. The recent Constitution Bench decision in Bir Singh v. Delhi Jal Board reiterated this position clearly: The upshot of the aforesaid discussion would lead to the conclusion that the Presidential Orders issued under Article 341 in regard to Scheduled Castes and under Article 342 in regard to Scheduled Tribes cannot be varied or altered by any authority including the Court. It is Parliament alone which has been vested with the power to so act, that too by laws made. Scheduled Castes and Scheduled Tribes thus specified in relation to a State or a Union Territory do not carry the same status in another State or Union Territory. Any expansion or deletion of the list of Scheduled Castes/Scheduled Tribes by any authority except Parliament would be against the constitutional mandate under Articles 341 and 342 of the Constitution of India., It is an unquestionable principle of interpretation that interrelated statutory as well as constitutional provisions have to be harmoniously construed and understood so as to avoid making any provision nugatory and redundant. If the list of Scheduled Castes/Scheduled Tribes in the Presidential Orders under Articles 341/342 is subject to alteration only by laws made by Parliament, the operation of the lists of Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated under the Presidential Order for a particular State/Union Territory by exercise of the enabling power vested by Article 16(4) would have the obvious effect of circumventing the specific constitutional provisions in Articles 341/342. In this regard, it must also be noted that the power under Article 16(4) is not only capable of being exercised by a legislative provision but also by an Executive Order issued under Article 166 of the Constitution. It will therefore be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of Scheduled Castes/Scheduled Tribes enumerated in the Presidential Orders for a particular State/Union Territory within the geographical area of that State and not beyond. If, in the opinion of a State, it is necessary to extend the benefit of reservation to a class or category of Scheduled Castes/Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its views known to the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution., The original Constitution did not contain any special provision similar to Articles 341 and 342. It did not define Socially and Educationally Backward Classes. The only reference to Socially and Educationally Backward Classes was in Article 340, which enabled the Central Government to set up a Commission to recommend measures for the progress and upliftment of backward classes of citizens. Article 340 provides that the President may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State, the conditions subject to which such grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission. A Commission so appointed shall investigate the matters referred to them and present to the President a report setting out the facts as found by them and making such recommendations as they think proper. The President shall cause a copy of the report so presented together with a memorandum explaining the action taken thereon to be laid before each House of Parliament., After the decision of the Supreme Court of India in Champakam Dorairajan v. State of Madras, Article 15 was amended and Article 15(4) was introduced. The term ‘socially and educationally backward class of citizens’ was inserted, conferring power upon the State to make special provisions for their advancement. This term has been held to also give colour to the term ‘backward class’ in the decision in Indra Sawhney as indeed in the earlier decision in N.M. Thomas. The Supreme Court of India noticed that ‘backward class of citizens’, though wider in context, has to take colour from social backwardness, which also results in educational backwardness., Indra Sawhney, in paragraph 859(13), issued directions with regard to the desirability of setting up Commissions by the Central and State Governments to ascertain the position and identification of backward classes of citizens, evaluation of rational criteria and periodic review of such lists. Pursuant to this direction, Parliament introduced the National Commission for Backward Classes Act, 1993. This Act defined the Central List under Section 2(c). The terms of this enactment make it clear that the lists of backward classes of citizens prepared by the Commission and recommended to the Central Government were to be for the purposes of providing reservations in employment under Article 16(4), and for reservations and other ameliorative measures that the Central Government can initiate and introduce under Article 15(4). Acting on the recommendations of the Supreme Court of India, post Indra Sawhney, several State Governments enacted laws for setting up commissions for backward classes and backward caste groups. In four States—Tamil Nadu, Gujarat, Punjab and Haryana—the Commissions were set up by executive action., The Constitution (One Hundred and Twenty‑third Amendment) Bill, the 102nd Amendment Act and the report of the Parliamentary Standing Committee dealt with the introduction of Articles 338B and 342A. Learned counsel for the respondents referred extensively to the deliberations recorded in and assurances given, and reflected in the Report of the Select Committee of the Rajya Sabha, submitted to Parliament when the 123rd Amendment Bill was introduced. The Report noted that seven meetings were held by the Select Committee, which comprised 25 members with a Secretariat of seven officials. It took note of statements made by three representatives of the Ministry of Social Justice, two from the Department of Legal Affairs and three from the Legislative Department., The Report recorded that members raised the concern as to whether Article 342A(1) would exclude state consultation. It was clarified that sub‑clause (9) of Article 338B does not interfere with the powers of the State Governments to prepare their own list. Classes so included in the State Backward Classes List do not automatically come in the Central List. The Committee also sought clarification on whether the list would be issued by the President after consultation with the State Government or only with the Governor. The Ministry clarified that Articles 154 and 163 of the Constitution state that the Governor shall act on the advice of the Council of Ministers, and therefore consultation with the Governor implies consultation with the State Government. Article 341 provides for consultation with the Governor of the State with respect to Scheduled Castes and Article 342 provides for consultation of the President with the Governor of the State in respect of Scheduled Tribes. In practice, the State Government has never been excluded from the consultation process., The Committee noted apprehension with respect to setting up a new Commission in Article 342B instead of creating it under Article 340. It was clarified that Article 340 enabled setting up of ad hoc bodies like the Kaka Kalelkar Commission and Mandal Commission, whereas Article 338B sought to confer constitutional status on a multi‑member permanent body. The Committee discussed the amendment proposing a new sub‑clause (10) to Article 338B, which would read: ‘Notwithstanding anything provided in clause 9, the State Government shall continue to have powers to identify Socially and Educationally Backward Classes.’ The Ministry clarified that the proposed amendment does not interfere with the powers of the State Governments to identify Socially and Educationally Backward Classes and that the existing powers of the State Backward Classes Commission would continue even after the passage of the Constitution (One Hundred and Twenty‑third Amendment) Bill, 2017., The Report set out proposals to amend Article 342A to limit it to making provisions for reservations in appointments or posts under the Government of India, and consequential amendment to Article 342A(2). A proposed Article 342A(3) sought to empower the State Government—or the Governor, on the advice of the State Commission of Backward Classes—to specify Socially and Educationally Backward Classes by public notification for the purposes of reservation of posts under the State. A similar amendment was proposed in Article 342A(4) that the Governor may, on the advice of the State Commission of Backward Classes, include or exclude from the State list of Socially and Educationally Backward Classes specified in a notification issued under clause (3). Other amendments discussed included allowing the President, with prior recommendation of the State Government, to make inclusions in the list for a State or Union Territory, and enabling the State to issue public notifications similar to Article 342A(1)., The Ministry clarified that time‑bound decadal revision of lists by the proposed Commission is a continuous process and that the Commission is empowered to enquire into specific complaints with respect to the deprivation of right and safeguards of the Socially and Educationally Backward Classes. The Ministry also clarified that reservation of posts under the State or any other authority of the State, or seats in educational institutions within that State, was beyond the purview of the Bill and therefore the proposed amendments were not allowed. The Ministry reiterated that Articles 154 and 163 state that the Governor shall act on the advice of the Council of Ministers, and that consultation with the Governor implies consultation with the State Government. The phrase ‘for the purpose of this Constitution’ in Article 342A(1) is on lines similar to Articles 341 and 342. The setting up of the proposed Commission will not be retrograde to the interest of the Socially and Educationally Backward Classes. Article 342A will provide for a comprehensive examination of each case of inclusion or exclusion from the Central List, with the ultimate power for such inclusion or exclusion vested in Parliament., Clause 5 proposes to insert a new clause (26C) in Article 366 which reads: ‘(26C) socially and educationally backward classes means such backward classes as are so deemed under Article 342A for the purposes of this Constitution.’, The Committee feels that the constitutional amendments proposed in the Bill would further strengthen affirmative action in favour of Socially and Educationally Backward Classes as well as further boost the concept of cooperative federalism between the Centre and the States. The Committee observes that the amendments do not affect the independence and functioning of State Backward Classes Commissions, and they will continue to exercise unhindered powers of inclusion or exclusion of other backward classes with relation to the State List. The Committee also noted concerns regarding the composition of the Commission and suggested that while framing the rules for the Chairperson and Members of the National Commission for Scheduled Castes and National Commission for Scheduled Tribes, it should be ensured that persons belonging to Socially and Educationally Backward Classes be given due representation, that at least one woman member be part of the Commission, and that the composition inspire confidence amongst the Socially and Educationally Backward Classes.
id_886	20	Extrinsic aids to interpretation of statutes: the extent to which they can be relied upon. The parties presented rival submissions with respect to interpretation of the words of the statute in the light of the reports of the Select Committee as well as the debates in Parliament at the time of introduction of the amendment, or the law as enacted. The appellants asserted that such debates are of limited assistance only as external aids in the case of an ambiguity and relied upon a line of decisions starting with State of Travancore-Cochin v. Bombay Trading Company and culminating in P. V. Narasimha Rao. The respondent States alluded to the larger bench decision of this Court in Kalpana Mehta which emphatically held that Standing Committee reports and statements made on the floor of the House can be limited extrinsic aids for considering and interpreting express terms of a statute, or even the Constitution., In the present case, the Statement of Objects and Reasons does not throw much light on why the provisions of the 102nd Amendment Act were introduced. Certain passages in the Select Committee Report suggest that the power of identification carved out through the newly inserted Articles 338B and 342A would not disturb the powers of the State to carry on their work in relation to special provisions or reservations for backward classes, whether through legislative or executive measures. A holistic reading of the report indicates that the Select Committee reflected both points of view and recorded assurances given by the Ministry that the State's power would not be disturbed. At the same time, the report emphatically stated that the States' concerns would be given due regard and that the exercise would be in line with the existing procedure under Articles 341 and 342. The report also contains notes of dissent, which highlight that the amendments would deprive the States of their existing power to identify and provide reservations and other special provisions for the benefit of socially and educationally backward classes., The Ministry also clarified to the Committee that the phrase \for the purpose of this Constitution\ as provided under clause (1) of Article 342A is on lines similar to Articles 341 and 342 of the Constitution. The setting up of the proposed Commission will not be retrograde to the interest of the socially and educationally backward classes. Article 342A will provide for a comprehensive examination of each case of inclusion or exclusion from the Central List. The ultimate power for such inclusion or exclusion would stand vested with Parliament., There can be no disagreement with the proposition that where the provisions of the statute or its wordings are ambiguous, the first attempt should be to find meaning through internal aids in the statute itself. Failing this, it is open to the Supreme Court of India to find meaning and resolve the ambiguity by turning to external aids, which include the statements of objects and reasons, as well as Parliamentary reports or debates. To this Court, the task of interpreting the provisions of the 102nd Amendment does not begin by relying on external aids such as the Statement of Objects and Reasons, which throw practically no light on the meaning of the provisions, or even the Select Committee Report. The task of interpretation is first to consider the overall scheme of the provisions, and secondly, after considering the provision, to resolve any perceived ambiguity, if found, by resorting to aids within the statute. It is at the third stage, when such resolution is impossible, that external aids are to be looked into., In a seven‑judge bench decision, the Supreme Court of India, in State of Karnataka v. Union of India, administered the following caution while outlining the Court's task of interpreting the Constitution: The dynamic needs of the nation, which a Constitution must fulfil, leave no room for merely pedantic hair‑splitting play with words or semantic quibblings. This does not mean that the Courts, acting under the guise of judicial power, which certainly extends to even making the Constitution in the sense that they may supplement it in those parts where the letter of the Constitution is silent or may leave room for its development by either ordinary legislation or judicial interpretation, can actually nullify, defeat, or distort the reasonably clear meaning of any part of the Constitution in order to give expression to some theories of their own about the broad or basic scheme of the Constitution. The theory behind the Constitution which can be taken into account for purposes of interpretation, even to fill what have been called the \interstices\ or spaces left unfilled due to deliberate vagueness or indefiniteness in the letter of the Constitution, must itself be gathered from express provisions of the Constitution. Dubious expressions may be cured by the Court by making their meanings clear and definite if necessary in the light of the broad and basic purposes set before themselves by the Constitution makers. These meanings may, in keeping with the objectives that the Constitution of every nation must serve, change with changing requirements of the times. The power of judicial interpretation, even if it includes what may be termed \interstitial\ law‑making, cannot extend to direct conflict with express provisions of the Constitution or to ruling them out of existence., The primary duty of the Supreme Court of India, while interpreting a constitutional provision (in the present case, an amendment to the Constitution), was underlined in GVK Industries Ltd. v. Income Tax Officer. In interpreting any law, including the Constitution, the text of the provision under consideration is the primary source for discerning the meanings that inhere in the enactment. However, in light of the serious issues, it is always prudent, as a matter of constitutional necessity, to widen the search for the true meaning, purport and ambit of the provision. No provision, and indeed no word or expression, of the Constitution exists in isolation; they are necessarily related to, transforming and in turn being transformed by, other provisions, words and phrases in the Constitution., Our Constitution is both long and an intricate matrix of meanings, purposes and structures. It is only by locating a particular constitutional provision within that constitutional matrix that one can discern its true meaning, purport and ambit. As Professor Laurence Tribe points out, to understand the Constitution as a legal text, it is essential to recognize the sort of text it is: a constitutive text that purports, in the name of the people, to bring into being a number of distinct but inter‑related institutions and practices, at once legal and political, and to define the rules governing those institutions and practices., It has been repeatedly appreciated by this Court that our Constitution is one of the most carefully drafted, where every conceivable situation was considered, deliberated upon, and appropriate features and text chosen to enable the organs of the State in discharging their roles. While dynamic interpretation is necessary, if the meaning necessary to fit the changed circumstances can be found in the text itself, we should tread as close as possible to the text, gathering the plain ordinary meaning, and sweeping our vision across the entire document to see whether that meaning is validated by constitutional values and scheme. In examining provisions of the Constitution, courts should adopt the primary rule and give effect to the plain meaning of the expressions; this rule can be departed from only when there are ambiguities. In Kuldip Nayar v. Union of India, after quoting from G. Narayanaswami v. G. Panneerselvam, this Court held that we endorse and reiterate the view that it may be desirable to give a broad and generous construction to constitutional provisions, but the rule of plain meaning or literal interpretation, which remains the primary rule, must also be kept in mind. The rule of literal construction is the safe rule unless the language used is contradictory, ambiguous, or leads to absurd results., While dealing with the task of the Court and the permissible extent to which it can resort to internal and extrinsic aids to construction of a statute, this Court remarked in Pushpa Devi v. Milkhi Ram that when a word has been defined in the interpretation clause, prima facie that definition governs wherever that word is used in the body of the statute unless the context requires otherwise. The internal context requires the interpreter to situate the disputed words within the section of which they are part and in relation to the rest of the Act. The external context involves determining the meaning from ordinary linguistic usage (including any special technical meanings), from the purpose for which the provision was passed, and from the place of the provisions within the general scheme of statutory and common law rules and principles. The opening sentence in the definition of the section states that unless there is anything repugnant in the subject or context, the court must look at the words and also examine the context and collocation in the light of the object of the Act and the purpose for which a particular provision was made by the legislature., In Karnataka State Financial Corporation v. N. Narasimahaiah it was observed that interpretation of a statute would not depend upon a contingency; it has to be interpreted on its own. It is a trite law that the Court would ordinarily take recourse to the golden rule of literal interpretation. It is not a case where we are dealing with a defect in legislative drafting. We cannot presume any. Where a Court has to weigh between a right of recovery and protection of a right, it would lean in favour of the person who is going to be deprived. The object of the Act would be a relevant factor for interpretation only when the language is not clear and when two meanings are possible, not when the plain language leads to only one conclusion., In another recent decision, Laurel Energetics (P) Ltd. v. Securities Exchange Board of India, this Court observed that the validity of a statutory notification cannot be judged merely on the basis of the Statement of Objects and Reasons accompanying the Bill, nor can it be tested by the government policy taken from time to time. The executive policy of the Government, or the Statement of Objects and Reasons of the Act or Ordinance, cannot control the actual words used in the legislation. In Central Bank of India v. Workmen, Justice S. K. Das said that the Statement of Objects and Reasons is not admissible for construing the section; far less can it control the actual words used. In State of West Bengal v. Union of India, Chief Justice Sinha observed that the Statement of Objects and Reasons accompanying a Bill, when introduced in Parliament, cannot be used to determine the true meaning and effect of substantive provisions of the statute. They can be used only for the limited purpose of understanding the background and antecedent state of affairs leading up to the legislation, but not as an aid to the construction of the enactment. In the factual scenario before us, having regard to the aforesaid judgment, it is not possible to construe the regulation in the light of its object when the words used are clear. This statement of law is made with the well‑known caveat that the object of a provision can certainly be used as an extrinsic aid to the interpretation of statutes and subordinate legislation where there is ambiguity in the words used., The position in the United Kingdom is that the report of a Select Committee may be considered as background to the construction of an Act; however, such reports could not be invested with any interpretive authority. In R (Baiai) v. Home Secretary, a report of the Parliamentary Joint Committee on Human Rights was considered. The committee's opinions on compatibility and other matters of law were held to have persuasive value, but they could have no greater weight than, for example, the views of distinguished academic writers., The Court has to interpret provisions of the Constitution introduced through an amendment. The proper method of interpreting such an amendment was indicated by a five‑judge bench in Kihoto Hollohan v. Zachillhu, where it was held that the Constitution must be treated as a logical whole. Westel Woodbury Willoughby in The Constitutional Law of the United States states that the Constitution is a logical whole, each provision of which is an integral part thereof, and it is therefore logically proper, and indeed imperative, to construe one part in the light of the provisions of the other parts. In considering the validity of a constitutional amendment, the changing and changed circumstances that compelled the amendment are important criteria. The observations of the United States Supreme Court in Maxwell v. Dow are worthy of note: read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen, and then construe any doubtful expressions in a way as far as reasonably possible to forward the known purpose or object for which the amendment was adopted., The 102nd Amendment brought in an entirely new dimension – an attempt to identify backward classes, firstly by inserting Sub‑Article (26C) into the definition clause under Article 366. This insertion, in the opinion of the Court, accords with the statutory scheme of defining terms for the purposes of the Constitution. The term for the purposes of this Constitution occurs twelve times in the Constitution., The interpretation of the definition in relation to the Constitution indicates that for the purpose of the entire Constitution, the meaning ascribed in the definition clause by Article 366(26C) has to prevail. While interpreting whether members of Scheduled Castes or Scheduled Tribes who find mention in the Presidential notification in two states could claim reservation benefits in both states, this Court considered the pari materia provisions, i.e., Articles 366(24) and (25) which defined Scheduled Castes for the purposes of this Constitution. In Marri Chandra Shekhar Rao v. Dean, Seth G. S. Medical College, a Constitution Bench of this Court held that it is necessary to give proper meaning to the expressions for the purposes of this Constitution and in relation to that State appearing in Articles 341 and 342. The Court noted divergent views of the High Courts and observed that statutory and constitutional provisions should be interpreted broadly and harmoniously. Where there is conflict between two provisions, they should be interpreted so as to give effect to both. Nothing is surplus in a Constitution and no part should be made nugatory., The expression \for the purposes of this Constitution\ in Articles 341 and 342 implies that Scheduled Castes and Scheduled Tribes so specified would be entitled to enjoy all constitutional rights that are enjoyable by all citizens. It has been argued that the right to migration or the right to move from one part to another is a right given to all, including Scheduled Castes or Tribes and non‑Scheduled Castes or Tribes. When a Scheduled Caste or Tribe migrates, there is no inhibition in migrating, but the person does not carry any special rights or privileges attributed to him in the original State. If that right is not given in the migrated State, it does not interfere with his constitutional right of equality, migration, or carrying on trade, business or profession. Neither Article 14, 16, 19 nor Article 21 is denuded by migration, but the person must enjoy those rights in accordance with the law of the place where he migrates., There should be harmonious construction, meaning that both parts of a constitutional provision should be read so that one part does not become nugatory to the other. The only way to give effect to the fundamental rights of the petitioner under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) is by construing Article 342 in a manner whereby a member of a Scheduled Tribe gets the benefit of that status for the purposes of the Constitution throughout the territory of India. The words \for the purposes of this Constitution\ must be given full effect. The expression in relation to that State would become nugatory if in all States the special privileges or rights granted to Scheduled Castes or Scheduled Tribes are carried forward, which would be inconsistent with the purpose of the reservation scheme., The Court observed that all provisions should be read harmoniously and no provision should be read so as to make other provisions nugatory or restricted. Harmonious construction requires giving each expression its full meaning and effect, without negating the other. The construction that reservation made in respect of the Scheduled Caste or Tribe of a State is entitled to all privileges and rights under the Constitution in that State is the correct way of reading, consistent with the language, purpose and scheme of the Constitution., This Constitution Bench decision was followed in another decision, again by five judges, in Action Committee on Issue of Caste Certificate to Scheduled Castes & Scheduled Tribes in the State of Maharashtra v. Union of India. The Court reiterated its previous view and observed that considerations for specifying a particular caste or tribe for inclusion in the list of Scheduled Castes or Scheduled Tribes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State, which may be entirely absent in another State to which persons may migrate. A caste or tribe bearing the same nomenclature may be specified in two States, but the considerations on which they have been specified may be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that a caste bearing the same name in another State would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State for the purposes of this Constitution., The recent judgment in Bir Singh v. Delhi Jal Board reiterated the previous two Constitution Bench judgments. Justice Bhanumati observed that clause (24) of Article 366 defines Scheduled Castes and clause (25) defines Scheduled Tribes. The latter means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution., Article 341(1) of the Constitution empowers the President, in consultation with the Governor of the State concerned, to specify Scheduled Castes by public notification. Similarly, Article 342(1) empowers the President, with respect to any State or Union Territory, after consultation with the Governor, to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of this Constitution, be deemed to be Scheduled Tribes in relation to that State or Union Territory. Article 342(2) empowers Parliament, by law, to include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1), any tribe or tribal community or part of or group within any tribe or tribal community, but such a notification shall not be varied by any subsequent notification. Until the Presidential notification is modified by appropriate amendment by Parliament under Article 341(2), the Presidential notification issued under Article 341(1) is final and conclusive and any caste or group cannot be added to it or subtracted by any action either by the State Government or by a court on adducing of evidence. In other words, it is the constitutional mandate that the tribes or tribal communities specified by the President, after consultation with the Governor in the public notification, will be Scheduled Tribes subject to the law made by Parliament alone, which may, by law, include in or exclude from the list of Scheduled Tribes specified by the President. Thereafter, it cannot be varied except by law made by Parliament., The President of India alone is competent to issue an appropriate notification in terms of Articles 341(1) and 342(1). A cumulative reading of Articles 338, 341 and 342 indicates that (a) only the President can notify castes or tribes as Scheduled Castes or Scheduled Tribes and also indicate conditions attaching to such declaration; a public notification by the President specifying the particular castes or tribes as Scheduled Castes or Scheduled Tribes shall be final for the purpose of the Constitution and shall be exhaustive. (b) Once a notification is issued under clause (1) of Articles 341 and 342, Parliament can by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes any caste or tribe, but save for that limited purpose the notification issued under clause (1) shall not be varied by any subsequent notification., These three Constitution Bench judgments – Marri, Action Committee and Bir Singh – have set the tone for the manner in which determination by the President is to be interpreted, having regard to the definition clause in Article 366, which must be applied consistently for the purpose of the Constitution. Thus, the expression \Scheduled Castes\ in relation to a State for the purposes of this Constitution means the member of a Scheduled Caste declared as such under the Presidential notification. The terms of such Presidential notification insist that such a citizen ought to be a resident of the concerned State or Union Territory. This aspect is important, given that there are a large number of communities common to several States. However, the decisions of this Court are uniform since Marri stated that only citizens residing in a particular State can claim the benefit of reservation either of that State or of the Centre for the purposes of the Constitution in relation to that State.
id_886	21	Necessarily, therefore, the resident of State A is entitled to claim reservation benefits under Articles 15(4) and 16(4) if he or she resides (the residential qualification that needs to be fulfilled is that specified by the concerned State) in that State, i.e., State A and none else. As a sequitur, if such a person or community or caste of State A is also described as a Scheduled Caste in State B, for the purposes of State services or admission to State institutions, he cannot claim the benefits of reservation as a Scheduled Caste in State B. However, Bir Singh (supra) has made it clear that for the purposes of Union employment and admissions to Union institutions the position is different because Scheduled Castes living within the territory of India in relation to one State or the other are deemed to be Scheduled Castes or Scheduled Tribes for the purposes of this Constitution in relation to Union employment., The interpretation of Articles 341 and 342 of the Constitution, read with Articles 366(24) and 366(25), have to, in our opinion, be the guiding factors in interpreting Article 366(26C), which follows a similar pattern, i.e., defining, for the purpose of the entire Constitution, with reference to the determination of those communities who are notified as Socially and Educationally Backward Classes, under Article 342A (which again uses the expression for the purpose of this Constitution)., Quite similarly, when Article 366 was amended by the Forty‑sixth Amendment Act and Article 366(29A) was introduced, the Supreme Court of India considered the previous amendments, which are the 6th Amendment to the Constitution and the 46th Amendment which amended Article 269 and Article 286, besides introducing Entry 92A to the Union List. The Supreme Court of India, in a five‑judge bench decision in 20th Century Finance Corporation Ltd. v. State of Maharashtra, held that the interpretation adopted by this Court led to the inexorable conclusion that a limitation was placed upon the State's power of taxation. Article 366(29A) on the one hand expanded the species of sale which could be the legitimate subject of taxation by the State, but at the same time introduced limitations upon the State power which were subjected to controls by Parliament. Therefore, in the context of the amendment the expression sale underwent alteration, partly allowing and partly restricting the State's power to tax goods. The Supreme Court of India, after recounting the history of the previous litigation, held that the power of State Legislatures to enact law to levy tax on the transfer of right to use any goods under Entry 54 of List II of the Seventh Schedule has two limitations: one arising out of the entry itself, which is subject to Entry 92A of List I, and the other flowing from the restrictions embodied in Article 286. By virtue of Entry 92A of List I, Parliament has power to legislate in regard to taxes on sales or purchase of goods other than newspapers where such sale or purchase takes place in the course of inter‑State trade or commerce. Article 269 provides for levy and collection of such taxes. Because of these restrictions, State Legislatures are not competent to enact law imposing tax on the transactions of transfer of right to use any goods which take place in the course of inter‑State trade or commerce. Further, by virtue of clause (1) of Article 286, the State Legislature is precluded from making law imposing tax on the transactions of transfer of right to use any goods where such deemed sales take place (a) outside the State; and (b) in the course of import of goods into the territory of India. Yet, there are other limitations on the taxing power of the State Legislature by virtue of clause (3) of Article 286. Although Parliament has enacted law under clause (3)(a) of Article 286, no law so far has been enacted by Parliament under clause (3)(b) of Article 286. When such law is enacted by Parliament, the State Legislature would be required to exercise its legislative power in conformity with such law. Thus, the limitations on the powers of State Legislatures on levy of sales tax on deemed sales envisaged under sub‑clause (d) of clause (29‑A) of Article 366 of the Constitution are as stated., In a similar manner, the expression ‘unless the context otherwise provides’ (which is the controlling expression in Article 366(1)) was interpreted by an earlier Constitution Bench in Builders Association of India v. Union of India when the amendment to Article 366 was considered. Before proceeding further, it is necessary to understand what sub‑clause (b) of clause (29‑A) of Article 366 of the Constitution means. Article 366 is the definition clause of the Constitution. It says that unless the context otherwise requires, the expressions defined in that article have the meanings respectively assigned to them in that article. The expression ‘goods’ is defined in clause (12) of Article 366 as including all materials, commodities and articles. After discussing the previous decisions in respect of the unamended provisions, the Supreme Court of India stated that the emphasis is on the transfer of property in goods (whether as goods or in some other form). The latter part of clause (29‑A) makes the position very clear. While referring to the transfer, delivery or supply of any goods that takes place as per sub‑clauses (a) to (f) of clause (29A), the latter part says that such transfer, delivery or supply shall be deemed to be a sale of those goods by the person making the transfer and a purchase of those goods by the person to whom such transfer is made. Hence, a transfer of property in goods under sub‑clause (b) of clause (29‑A) is deemed to be a sale of the goods involved in the execution of a works contract by the person making the transfer and a purchase of those goods by the person to whom such transfer is made. The object of the new definition introduced in clause (29‑A) is, therefore, to enlarge the scope of tax on sale or purchase of goods wherever it occurs in the Constitution so that it may include within its scope the transfer, delivery or supply of goods that may take place under any of the transactions referred to in sub‑clauses (a) to (f) wherever such transfer, delivery or supply becomes subject to levy of sales tax. So construed, the expression ‘tax on the sale or purchase of goods’ in Entry 54 of the State List therefore includes a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract also. The tax leviable by virtue of sub‑clause (b) of clause (29‑A) thus becomes subject to the same discipline to which any levy under entry 54 of the State List is made subject to under the Constitution. The position is the same when we look at Article 286. Clause (1) of Article 286 says that no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India. Here again we have to read the expression ‘a tax on the sale or purchase of goods’ found in Article 286 as including the transfer of goods referred to in sub‑clause (b) of clause (29‑A) which is deemed to be a sale of goods and the tax leviable thereon would be subject to the terms of clause (1) of Article 286. Similarly, the restrictions mentioned in clause (2) of Article 286, which says that Parliament may by law formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause (1), would also be attracted to a transfer of goods contemplated under Article 366(29‑A)(b). Clause (3) of Article 286 is also applicable to a tax on a transfer of property referred to in sub‑clause (b) of clause (29‑A). Clause (3) consists of two parts. Sub‑clause (a) deals with a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter‑State trade or commerce, which is generally applicable to all sales including the transfer, supply or delivery of goods which are deemed to be sales under clause (29‑A). If any declared goods referred to in Section 14 of the Central Sales Tax Act, 1956 are involved in such transfer, supply or delivery, the sales tax law of a State which provides for levy of sales tax thereon will have to comply with the restrictions mentioned in Section 15 of the Central Sales Tax Act, 1956. The Supreme Court of India is of the view that all transfers, deliveries and supplies of goods referred to in clauses (a) to (f) of clause (29‑A) are subject to the restrictions and conditions mentioned in clause (1), clause (2) and sub‑clause (a) of clause (3) of Article 286, and the transfers and deliveries that take place under sub‑clauses (b), (c) and (d) are subject to an additional restriction mentioned in sub‑clause (b) of Article 286(3)., In Commissioner of Income Tax v. Williamson Financial Services, the Supreme Court of India had to interpret ‘agricultural income’, a term defined in Article 366(1) as follows: ‘(1) agricultural income means agricultural income as defined for the purposes of the enactments relating to Indian income tax.’ Noticing that the definition itself referred to the term as defined by the Income Tax Act, and after considering the definition in the existing enactment, the Supreme Court of India held that the expression ‘agricultural income’, for the purpose of the aforementioned entries, means agricultural income as defined for the purpose of the enactments relating to Indian income tax. Therefore, the definition of agricultural income in Article 366(1) indicates that it is open to the income tax enactments in force from time to time to define agricultural income in any particular manner and that would be the meaning not only for tax enactments but also for the Constitution. This mechanism has been devised to avoid a conflict with the legislative power of States in respect of agricultural income., Another important decision is Tata Consultancy Services v. State of Andhra Pradesh. The issue involved was interpretation of the expression in Article 366(12), i.e., ‘goods includes all materials, commodities, and articles.’ The Supreme Court of India expansively interpreted the definition and held that it includes software programmes, observing that the term goods includes intangible property. In our view, the term ‘goods’ as used in Article 366(12) of the Constitution and as defined under the said Act is very wide and includes all types of movable property, whether tangible or intangible. A software program may consist of various commands which enable the computer to perform a designated task. The copyright in that program may remain with the originator, but the moment copies are made and marketed, it becomes goods, which are susceptible to sales tax. Even intellectual property, once it is put on to a media, whether it be in the form of books, canvas, computer discs or cassettes, and marketed, would become goods. The term ‘all materials, articles and commodities’ includes both tangible and intangible/incorporeal property which is capable of abstraction, consumption and use and which can be transmitted, transferred, delivered, stored, possessed, etc. Software programmes have all these attributes., It is therefore apparent that whenever the definition clause, i.e., Article 366, has arisen for interpretation, the Supreme Court of India has consistently given effect to the express terms, and in the broadest manner. Whenever new definitions were introduced, full effect was given to the plain and grammatical terms, often limiting existing legislative powers conferred upon the States., Before proceeding to examine whether the term ‘Central List’ in Article 342A indicates an expression to the contrary, per Article 366(1), it is also necessary to consider some decisions that have interpreted amendments which introduced entirely new provisions, either affecting State legislative powers or limiting fundamental rights. In Bimolangshu Roy v. State of Assam, the State's legislative competence to enact a law providing for appointment of Parliamentary Secretaries, in the context of the Constitution (Ninety‑First Amendment) Bill, 2003, which introduced Article 164(1‑A) limiting the total number of Ministers in the Council of Ministers in a State, was challenged. The Supreme Court of India held that the existence of a dedicated article in the Constitution authorising the making of law on a particular topic would eliminate the possibility of legislative authority to legislate in Article 246 read with any entry in the Seventh Schedule indicating a field of legislation closely associated with the topic dealt with by the dedicated article. The Court explained that Article 194 deals exclusively with the powers and privileges of the legislature, its members and committees, and does not expressly authorise the State Legislature to create offices such as the one in question. Articles 178, 179, 182, 183 and 187 make specific provisions for offices of Speaker, Deputy Speaker, Chairman, Deputy Chairman and secretarial staff of the legislature. Therefore, creating new offices by legislation would be a wholly irrational construction of the scope of Article 194(3) and Entry 39 of List II., In Ashoka Kumar Thakur v. Union of India, the issue was the correct interpretation of Article 15(5), introduced by the Constitution (Ninety‑Third Amendment) Act, 2005. It enabled the State to make special provisions for the advancement of any Socially and Educationally Backward Classes or for Scheduled Castes or Scheduled Tribes as far as they related to admission to educational institutions, including private institutions, whether aided or unaided by the State, other than minority educational institutions referred to in clause (1) of Article 30. The Supreme Court of India held that, on a true construction, special provisions for admission to such categories of candidates, even in private educational institutions, were permissible. Both Articles 15(4) and 15(5) are enabling provisions. Article 15(4) was introduced after the Communal Government Order in the State of Madras was struck down in the Champakam Dorairajan case. In Unni Krishnan the Court held that Article 19(1)(g) is not attracted for establishing and running educational institutions, whereas in T.M.A. Pai Foundation the Court held that the right to establish and run educational institutions is an occupation within the meaning of Article 19(1)(g). The scope of that decision was later explained in P. A. Inamdar, where it was held that, as regards unaided institutions, the State has no control and such institutions are free to admit students of their own choice. The Constitution (Ninety‑Third Amendment) Act was enacted to address this. Thus, both Articles 15(4) and 15(5) operate in different areas. Article 15(5) does not exclude Article 15(4). It is a well‑settled principle of constitutional interpretation that while interpreting the provisions of the Constitution, effect shall be given to all the provisions and no provision shall be interpreted in a manner as to make any other provision inoperative or otiose. If Parliament intended to exclude Article 15(4), it could have deleted it. Minority institutions are also entitled to the exercise of fundamental rights under Article 19(1)(g), whether aided or unaided. However, in the case of Article 15(5), minority educational institutions, whether aided or unaided, are excluded from its purview. Both being enabling provisions, they would operate in their own field and the validity of any legislation made on the basis of Article 15(4) or 15(5) has to be examined on the basis of the provisions contained in such legislation or the special provision that may be made under the respective article., The Supreme Court of India, similarly, gave full effect to the definition clause in Article 366 (in the definition of Union territory under Article 366(30)) while examining the argument that immunity from inter‑governmental taxation under Article 289, which exempts States from Union taxation, extends to Union Territories and municipalities. It was argued that many Union Territories have Legislative Assemblies by statutory enactments, or special provisions, and that municipalities, through amendment and introduction of Article 243X, were authorized by States to levy municipal taxes. The Supreme Court of India, in New Delhi Municipal Council v. State of Punjab, held that Article 246(4) as originally enacted allowed Parliament to make laws for any part of the territory of India not included in a State. The Seventh Amendment changed Article 246 to its present form, empowering Parliament to make laws for any part of the territory of India not included in a State. Article 1(3) defines the territory of India as comprising the territories of the States, the Union Territories specified in the First Schedule, and such other territories as may be acquired. Article 366(30) defines Union Territory as any Union Territory specified in the First Schedule and includes any other territory comprised within the territory of India but not specified in that Schedule. Although the word ‘State’ is not defined in the Constitution, it is defined in the General Clauses Act, 1897, and Article 367 states that the General Clauses Act shall, unless the context otherwise requires, apply for the interpretation of the Constitution. Article 372 is the saving clause, and Article 372‑A empowers the President to make further adaptations. The Court observed that even under the new scheme, municipalities do not have an independent power to levy taxes; they must be delegated such power by their parent legislatures. In States, municipalities require specific delegation by the State Legislature; in Union Territories without Legislative Assemblies, the power must be delegated by Parliament; Union Territories with Legislative Assemblies must also empower municipalities through the Assembly. All taxation falls within either State taxation or Union taxation, and Article 289(1) does not contain the words found in Article 285(1); nevertheless, Union taxation will encompass municipal taxes levied by municipalities in Union Territories. The Court was guided by the definition of State in Article 367., Interpreting provisions of the 102nd Amendment—Article 366(26C), Article 338B and Article 132—what is noticeable in the decisions preceding this section, including those dealing with constitutional amendments, is that whenever the definition clause (Article 366) arose for consideration, the Supreme Court of India gave full effect to the substantive amendments as well as the definition, as in the cases of Builders Association and Twentieth Century Leasing, and also to the newly introduced provisions, as in the cases of Bimolangshu Roy and Ashoka Kumar Thakur. In Williamson Financial Services and New Delhi Municipal Council, the Court gave full effect to the plain meaning of the definition clause in Article 366(1)(1) and (30) respectively., In this background, the crucial point to be decided is whether Parliament, acting in its constituent capacity, whereby any amendment needed a special majority of two‑thirds of its members present and voting in both Houses separately, wished to bring about a change in the status quo or not., Parliament was aware that the procedure for identification of Scheduled Castes and Scheduled Tribes culminated with the final decision by the President on the aid and advice of the Union Council of Ministers. This position in law underwent little change, despite the Constitution (Sixty‑Fifth) and Constitution (Eighty‑Ninth) Amendment Acts, which set up commissions for Scheduled Castes and Scheduled Tribes, replacing the provisions of the original Constitution which had created an authority called the Special Officer. Through the amended Articles 338 and 338A, consultation with the States in the matter of inclusion or exclusion was and continues to be given due consideration. It is also possible for States to initiate the process and propose the inclusion or deletion of new communities or castes by sending their proposals, duly supported by relevant material, for consideration. This constitutional procedure, culminating in the final word of Parliament, was well known in relation to Scheduled Castes and Scheduled Tribes. The States were, and are, bound to consult these two commissions for Scheduled Castes and Scheduled Tribes (under Articles 338 and 338A). Till the 102nd Amendment, when it came to backward classes, or Socially and Educationally Backward Classes, the Constitution was silent definitionally, as well as regarding the manner by which their identification could take place., The interpretive exercise carried out in Indira Sawhney saw the Supreme Court of India enjoining the Central and State governments to set up permanent mechanisms in the form of commissions, to identify Socially and Educationally Backward Classes through a systematic and scientific manner and to carry out regular periodic reviews. The respondent states emphasized that pursuant to this direction, State enactments were framed and brought into force. The arguments on their behalf as well as the Attorney General were that, given these directions by a nine‑judge bench, it could not be inferred that the 102nd Amendment was ever intended to bring about such a drastic change as to exclude the States' role altogether in the task of making special provisions under Article 15(4) and Article 16(4) in regard to identification of Socially and Educationally Backward Classes., It is correct that Indira Sawhney clearly voiced the need for the Central Government and the States to take measures for setting up permanent commissions or bodies, if need be through legislation, to carry out the task of identification of communities as Socially and Educationally Backward Classes for the purposes of Articles 15 and 16.
id_886	22	However, that articulation or even direction could not have, in the opinion of the Supreme Court of India, been an injunction never to depart from the existing mechanisms of setting standards for identification of such classes, nor was it a direction in perpetuity that the status quo remain forever. It cannot be seriously assumed that if Parliament were so minded, it could not bring about changes to the Constitution regarding how identification of backward classes is to take place. The existence of the provision in Article 368 enabling amendments, and the inapplicability of the proviso to Article 368(2) in relation to the kind of changes to the Constitution brought about by the introduction of Articles 366 (26C), Article 338B and Article 342A, negates this argument., A reading of the Select Committee's Report in relation to the 102nd Amendment bears out that various changes to the proposed amendments were suggested on the ground that, on a fair and reasonable interpretation of its terms, the States' powers to make reservations could be impacted. The Central Government's representatives and officials assured that the States' role in the process of backward class identification and listing would be maintained. None of the amendments expressly preserving the State power were accepted. The dissenting members were aware that a fair and reasonable interpretation of the terms of the amendment clearly ousted the States' powers to identify backward classes of citizens. This emerges from a note by Shri Sukhendu Shekhar Roy, a Member of Parliament, who relied on extracts of the judgment in Indra Sawhney and observed that the amendments prescribed for the unitary authority would encroach upon the jurisdiction of the States in the matter of identifying and specifying the socially and educationally backward classes. Three Members, Shri Digvijaya Singh, Shri B.K. Hariprasad, and Shri Hussain Dalwai, submitted a joint note of dissent dealing with the powers of the commission under Article 342A and suggested changes in its composition. Shri Sharad Yadav, another Member of Parliament, was of the view that there was no need for any inclusion or exclusion of castes and that approval should not be left to the Governor, Parliament and President as it would be a step backward. Dr. Dalip Kumar Tirkey, Member of the Rajya Sabha, proposed sub‑articles (3) and (4) to Article 342A, enabling the State to publish a list which could be modified by State Assemblies. Ms. Kanimozhi, in her long letter of dissent, also highlighted the effect of the proposed amendment and insertion of Article 342A, which had the effect of ousting the States' power that they had hitherto exercised to identify SEBCs., The debates in Parliament also witnessed members voicing apprehensions that the power hitherto enjoyed by the States would be whittled down drastically. These fears were allayed by the concerned Minister who piloted the Bill before both Houses of Parliament. Extracts of these statements have been set out in extenso in the judgment of Justice Ashok Bhushan; they are not reproduced here for brevity. These materials show that, on the one hand, there was an assumption that the changes ushered by the amendments would not disturb any part of the States' powers; however, a sizeable number of members, after a careful reading of the terms of the amendment, dissented, saying that State power would be adversely impacted., In these circumstances, the debate which ensued at the time of passing of the Bill into the 102nd Amendment was by way of an assurance by the Minister concerned that the existing power of the States would not be affected. Given all these circumstances, it is difficult to accept the contention that the Select Committee's Report, to the extent it holds out an assurance, should be used as a determinative external aid for interpretation of the actual terms of the 102nd Amendment. Likewise, debates and statements cannot be conclusive about the terms of the changes brought about by an amendment to the Constitution. The duty of the court always is to first interpret the text, and only if there is ambiguity in the meaning, to resort first to internal aids before seeking external aids outside the text., It would be useful to recollect that the Supreme Court of India, through a seven‑judge bench, held that the words of the statute are to be construed on their own terms and that the task of interpretation should not be determined by statements made by Ministers and Members of Parliament. In Sanjeev Coke Manufacturing (supra) it was held that no one may speak for Parliament and Parliament is never before the Court. After Parliament has said what it intends to say, only the Court may say what Parliament meant to say. Once a statute leaves Parliament House, the Court's is the only authentic voice which may interpret the Parliament. This the Court will do with reference to the language of the statute and other permissible aids., This aspect was highlighted more vividly in a recent decision of the Supreme Court of India in Shivraj Singh Chauhan v. Speaker, Madhya Pradesh Legislative Assembly, where it was held that in interpreting the Constitution it would not be correct to rely on the speeches of individual members of the Constituent Assembly. Each speech represents the view of one individual in the Assembly, which taken as a whole formed a kaleidoscope of competing political ideologies. There may arise instances where the Court, of independent opinion, finds that the views raised by individual members warrant examination, but the general rule is to examine the decisions taken by the Constituent Assembly by majority vote, as those votes represent the final and dispositive expressions of the constitutional choices., The use of external aids such as speeches and parliamentary reports was commented upon earlier, rather strongly, by Chief Justice Sabyasachi Mukherjee in the decision reported as DTC Mazdoor Congress v. Delhi Transport Corporation. Construction or interpretation of legislative or rule provisions proceeds on the assumption that courts must seek to discover and translate the intention of the legislature or the rule‑making body. This is a legal fiction, as experience shows that the legislature, the vast majority of the people who are supposed to represent the views of the people, often have no clear intention, or are unable to articulate it. The machinery of a bureaucratic set‑up drafts the legislation, and what is passed is often the work of a power lobby rather than the genuine will of the people., The polyvocality of parliamentary proceedings, where the views expressed by Ministers or Parliamentarians may not be common or unanimous, and the danger of attributing a particular intention to the terms of a statute through the words of a Minister or other functionary which may be at odds with the plain words, cannot be lost sight of., In the decision reported as BBC Enterprises v. Hi‑Tech Xtravision Ltd., the Court cautioned against the use of the purposive interpretation rule, saying that courts should now be very reluctant to hold that Parliament has achieved nothing by the language it used when the language is tolerably plain about what Parliament wished to achieve., This caution was accepted in Balram Kumawat v. Union of India, where it was held that courts will reject a construction which defeats the plain intention of the legislature even though there may be some inexactitude in the language used. Reducing legislative futility shall be avoided, and where the intention of the legislature cannot be given effect, courts may adopt a bolder construction to achieve an effective result, but should be reluctant to disregard plain language., Taking into consideration the amendment to Section 123 of the Representation of the People Act, which introduced a new corrupt practice—namely, the candidate making an appeal on the basis of his religion or caste—this Court took the aid of the doctrine of purposive construction in Abhiram Singh v. C.D. Commachen. The majority judgment adopted a wide interpretation, whereby any appeal on proscribed grounds by the candidate, his agent, or any other person with the candidate's consent, would constitute a corrupt practice., The provisions of clause (3) of Section 123 of the Representation of the People Act, 1951 are required to be read and appreciated in the context of simultaneous and contemporaneous amendments inserting clause (3‑A) in Section 123 of the Act and inserting Section 153‑A in the Penal Code, 1860. So read together, and for maintaining the purity of the electoral process, clause (3) must be given a broad and purposive interpretation, bringing within the sweep of a corrupt practice any appeal made to an elector for the furtherance of the prospects of the election of a candidate or for prejudicially affecting the election on the grounds of religion, race, caste, community or language of any candidate, his agent, any other person making the appeal with the candidate's consent, or the elector. It is a matter of evidence to determine whether an appeal has been made and whether it violates clause (3)., After the decision in Indra Sawhney, the National Commission for Backward Classes Act was enacted by Parliament in 1993. The scheme showed that the NCBC was tasked with making recommendations, especially under Section 9(1), to examine requests for inclusion of any class of citizens as a backward class in the lists, hear complaints of over‑inclusion or under‑inclusion, and tender advice to the Central Government. By all accounts, the commission identified SEBCs in all 31 states and union territories. Approximately 2,479 castes and communities have been notified as backward classes throughout the country. There is no suggestion that the NCBC was not functioning properly or that states voiced resentment at its decisions., It was asserted by the Attorney General and the states that the move to amend the Constitution was only to empower the Central Government to publish a list for union employment and Central public sector undertakings. That power always existed under the NCBC Act. The Union always had and exercised power to add or vary the contents of such lists for central posts, whether it enacted a law or not. There is no reason why rigidity had to be imparted to the position by taking away the flexibility of the President to amend the lists and requiring Parliament to act after initially publishing a list under Article 342A., The interpretation suggested by the respondents, and by Justice Ashok Bhushan, that the power of the States, which existed till the 102nd Amendment, continues unimpeded, is not borne out. Such an interpretation amounts to saying that Parliament, for the first time, defined the term SEBC in the Constitution, provided for one notification under Article 342A issued by the President specifying the socially and educationally backward classes for that State or Union territory, and then restricted the term to the Central List. This interpretation limits the specification of a community as backward in relation to that State or Union territory only for purposes of the Central List, i.e., central government employment and institutions. It deprives the plain grammatical meaning of the provisions introduced by the 102nd Amendment and ties the hands of the Central Government while granting the States unlimited latitude., The claim that the respondents' interpretation is pragmatic and conforms to the doctrine of purposive interpretation cannot be accepted. It undermines the breadth of (a) the deeming fiction introduced by the 102nd Amendment while inserting Article 366 (26C), which means such backward classes as are deemed under Article 342A for the purposes of the Constitution; (b) the use of the term 'means' which has been interpreted in several decisions of this Court as an exhaustive definitional expression, placing the matter beyond the pale of interpretation; thus SEBCs are, by reason of Article 366 (26C), only those deemed under Article 342A; (c) the emphasis on the community being deemed socially and educationally backward in Article 366 (26C); (d) the logical corollary that such inclusion is for the purposes of the Constitution to enable state and central government benefits under Articles 15(4), 15(5) and 16(4); and (e) the expression 'for the purposes of this Constitution' in Article 342A(1), which means that only the communities deemed under Article 342A are treated as SEBCs in relation to the State or Union territory concerned., If all these factors are kept in mind, there can be no doubt that the Central List in Article 342A(2) is none other than the list published in Article 342A(1) for the purposes of the Constitution. This means that after the introduction of these provisions, the final say in regard to inclusion, exclusion or modification of SEBCs is firstly with the President and, thereafter, in case of modification or exclusion, with Parliament., This sequitur is the only reason why change was envisioned by Parliament, sitting in its constituent capacity, to alter the entire regime by ensuring that the final say in the matter of identification of SEBCs would follow the same pattern as exists for the most backward classes—Scheduled Castes and Scheduled Tribes—under Articles 338, 338A, 341 and 342. The term 'Central List' carries no other signification than the list notified under Article 342A(1) by the President at the behest of the Central Government. The Council of Ministers headed by the Prime Minister advises the President, and Article 78 uses the term 'Government of India', while Article 77 uses 'the Government of India'. These terms are used interchangeably and mean the same, so the Central List is the list notified under Article 342A(1)., It is noticeable that Article 367 of the Constitution incorporates, by reference, the definitions set out in the General Clauses Act, 1897, as those operating in relation to expressions not defined expressly in the Constitution. By Section 3(8)(b) of that Act, Central Government means, after commencement of the Constitution, the President of India., In a recent decision, K. Lakshminarayanan v. Union of India, this Court held that the definition of Central Government, which means the President, is not controlled by the second expression and shall include the Administrator where authorised. Article 342A(1) does not use the expression 'Central Government', but Article 342A(2) uses the expression 'Central List', which, under the logic of Article 367 and the General Clauses Act, necessarily refers to the list under Article 342A(1) prepared by the President for the purpose of the Constitution. Any restrictive interpretation limiting the exercise of identification to central employment would be unduly narrow., There are other compelling reasons why the restrictive interpretation of Article 342A, limiting identification to central employment and benefits, should be avoided. Parliament, through the 102nd Amendment, clearly intended that the existing legal regime for identification of communities as Scheduled Castes and Scheduled Tribes and their inclusion under Articles 341 and 342 be replicated for identification of SEBCs. To achieve that, Parliament inserted Article 338B, a mirror image of Articles 338 and 338A. The new Commission for Backward Classes, envisioned as a multi‑member commission, has duties radically different from those assigned to the NCBC under the earlier Act. Under Section 9 of the erstwhile NCBC Act, the commission examined requests for inclusion of any class of citizens as backward classes and its advice was ordinarily binding upon the Central Government. Section 11 provided for periodical revision of lists. Article 338B envisions a larger role for the new Commission, which not only advises the Central Government but also the States.
id_886	23	It is impossible to read Article 338B in isolation from the pre‑existing parimateria provisions; it must be interpreted in the light of the other two provisions which had existed all this while Articles 338 and 338A. Those provisions clearly contemplate the same consultative role with the Commission on policy matters of the Central Government as well as the State Governments. This is evident from sub‑article (9) of these Articles. Thus, the Commission under Article 338B is not only assigned a constitutional role but is also expected to act as an expert and engage with experts in the determination of the communities. Article 338B(5) uses the term Socially and Educationally Backward Classes (SEBC) no less than on six occasions. The expression also occurs in Article 338B(9). Thus, for the purposes of the Constitution, the Commission newly established under Article 338B, i.e., the National Commission for Backward Classes shall be the only body to whom both the Central Government and the State Governments have to turn in all matters of policy. Necessarily, the question of matters of policy would also include identification of castes or communities as backward classes., If the intention of Parliament in amending the Constitution were to merely confer or clothe the National Commission for Backward Classes with constitutional status, the matter would have ended by inserting Article 338B. To that end, the argument of the respondents is understandable. Short of the task of identification, which could have continued with the states, if the amendment had not inserted Article 342A, the states would have been duty bound to consult the Commission under Article 338B. The interpretation by Justice Ashok Bhushan might have been acceptable. However, the Constitution was amended further to introduce Article 342A, adding an entirely new dimension which the Supreme Court of India has to interpret, after considering the light of the previous authorities, as also whenever new provisions were added to the Constitution and, more importantly, when such amendments were accompanied by changes in the definition clause., The previous part of this judgment has discussed various authorities which had considered one or the other clauses of Article 366, i.e., the NDMC case, Tata Consultancy (supra), Williamson Financial Services (supra). The NDMC case was decided by a nine‑judge bench; in all the other decisions, the Supreme Court of India gave the fullest latitude to the expressions in the definition clause while interpreting them in the peculiar facts of the case. Similarly, when constitutional amendments introduced new definitions such as in Article 366(29A), judicial interpretation leaned in favour of giving literal meaning to the terms used, which led to change in the existing tax regime. Such changes also limited the State's legislative powers. Thus, for instance, in the Constitution‑bench judgments in Builders Association (supra) and in 20th Century Leasing (supra), the Supreme Court of India decisively ruled that the taxing power of the states was explained by the amendment but was also limited in more than one manner by the express terms which introduced a new entry in the Central or Union legislative field. Furthermore, the principles on which taxation could be resorted to by the states had to be defined by the Union Government. In other cases, whenever constitutional amendments brought about changes in the existing status quo like in Kihoto Hollohan (supra) or limited the legislative power constraining the state from expanding its council of ministers beyond a certain percentage as with the introduction of Article 164(1A) in Bimolangshu Roy (supra), the Supreme Court of India gave full literal effect to the terms of the amendment after understanding the rationale for the change., In Ashok Kumar Thakur (supra) and N. Nagaraj (supra) the changes brought through constitutional amendments were the subject matter of interpretation. In Nagaraj, they were also the subject matter of challenge on the ground that the amendments violated the basic structure of the Constitution. There too, the Supreme Court of India interpreted the terms of the amendment by adopting a plain and literal meaning and not by cutting down or reading down any term or phrase. In Ashok Kumar Thakur (supra), the introduction of the new and radical Article 15(5) enabled states to make special provisions for Socially and Educationally Backward Classes of citizens in unaided private educational institutions., Given the weight of such precedents – which point to the Supreme Court of India (i) giving full effect to newly added provisions, (ii) adopting the literal meaning in the definition set out in the Constitution, (iii) as well as in the amendments to the definition clause, and (iv) giving plain effect to the changes brought about through the amendments – it is difficult to accept that the power of amendment of the Constitution, in accordance with the special procedure set out in Article 368, was used merely to bring cosmetic changes conferring constitutional status to the National Commission for Backward Classes. The conferment of constitutional status, as noticed previously, is achieved by only inserting Article 338B. However, the fact that it mirrors the previous two provisions of Articles 338 and 338A and borrows from that pattern clearly suggests that the new Commission is to have an identical role much like the commissions that advise the Central Government and Parliament with respect to all matters pertaining to Scheduled Castes and Scheduled Tribes. Therefore, the new Commission is expected to play a decisive role in the preparation of lists, which the Constitution set apart as one list, deemed to be the list of Socially and Educationally Backward Classes for the purposes of the Constitution in relation to every state and Union Territory. The interplay between Articles 366(26C) and 338B is therefore crucial. The term \deemed to be\ for the purposes of this Constitution and a reference to Article 342A would necessarily mean that even the provision under Article 338B is to be interpreted in the same light. In other words, if the intention were merely to confer constitutional status, that would have been achieved by an insertion of the provision in Article 338B without any other amendment, such as being in the definition clause under Article 366 or the insertion of Article 342A., The change brought about by the 102nd Amendment by introducing Sub‑Article (26C) to Article 366 and inserting a new provision – Article 342A – brings about a total alignment with the existing constitutional scheme for identification of backward classes, with the manner in which identification of Scheduled Castes and Scheduled Tribes has been undertaken hitherto by the Central Government culminating in Presidential notifications. That task is aided by two commissions – respectively for Scheduled Castes and Scheduled Tribes – much as in the case of the new National Commission for Backward Classes which will aid and advise the Central Government for issuing the notification for the purposes of the Constitution under Article 342A. The pattern of finality and a single list, in relation to every state and Union Territory which exists in relation to Scheduled Castes and Scheduled Tribes (Articles 341 and 342) has now been replicated with the introduction of Article 161. There have to be strong, compelling reasons for the Supreme Court of India to depart from the interpretation which has been hitherto placed on the definition clause. As demonstrated in more than one case, the interpretation of the definition clause in its own terms, in respect of the original constitutional provisions as well as the new terms brought in by way of amendment (which also brought substantive amendments), has consistently shown a particular trend. If one keeps in mind the interpretation of Articles 341 and 342 from the earliest decisions in Bhayalal (supra) and Bir Singh (supra), the only conclusion is that the task of examining requests or demands for inclusion or exclusion is in the first instance only with the President (Article 342(1)). In this task, the President, i.e., the Central Government, is aided by the work of the commissions set up under Articles 338 and 338A. Upon the publication of the list containing the notification under Articles 341(1) and 342(1), for the purposes of the Constitution in relation to the concerned state or Union Territory, the list of Scheduled Castes and Scheduled Tribes is conclusive. Yet, one must be mindful of a crucial fact, which is that the task for making special provisions under Article 15 and for making reservations under Article 16(4) extends to the states. The power exercised by the President in relation to every state vis‑vis Scheduled Castes and Scheduled Tribes has been smooth and, by all accounts, there has been no resentment or friction. Once the concerned community or caste is reflected in the list of a state or Union Territory, the extent of the benefits to be provided to members of such community lies entirely in the state's domain. The amendment or modification of any state list can be undertaken only by Parliament, not even by the President., Much like in the case of the alignment of Article 338B with the other two previously existing provisions of the Constitution, Article 342A aligns the function of identification of Socially and Educationally Backward Classes and publishing the list by the President with Articles 341 and 342. These three sets of consecutive provisions share their umbilical cord with the definition clause – Article 366(24) in relation to Scheduled Castes, Article 366(25) in relation to Scheduled Tribes and the new Article 366(26C) in relation to Socially and Educationally Backward Classes. This two‑way linkage between the definition clause and the substantive provisions is not without significance. As held in Marri Chandra Shekar (supra), Action Committee (supra) and Bir Singh (supra), the expression \for the purposes of the Constitution\ has to be given fullest weight. Therefore, whenever lists are prepared under these three provisions in relation to states or Union Territories, the classes and castes included in such list and no other are deemed to be castes or classes falling within the one or the other category – Scheduled Castes, Scheduled Tribes or Socially and Educationally Backward Classes – in relation to the particular state or Union Territory for the purposes of the Constitution., If one were to, for the sake of argument, consider the deliberations before the Select Committee reflected in its report, it is evident that amendments at three places were moved to place the matter beyond controversy and clarify that the state's jurisdiction and power to identify Socially and Educationally Backward Classes would remain undisturbed. To achieve this, proposed Articles 342A(3) and (4) were introduced. These proposed amendments were not accepted and were dropped. The rationale for dropping the amendments was the impression that the express terms of the amendment did not divest the states of their power. Further, paragraphs 56 and 57 of the Select Committee report clearly state that the Governor acts on the aid and advice of the Council of Ministers of the state and that Articles 341 and 342 provide for consultation with the Governor in relation to Scheduled Castes and Scheduled Tribes of the concerned states. The assurance held out was that, at no time has the state been excluded from the consultation process. It is by way of the state government that the recommendation to the President for inclusion or exclusion in the Scheduled Castes and Scheduled Tribes is made. A similar provision is provided for in the case of conferring constitutional status to backward classes for inclusion in the Central List of Socially and Educationally Backward Classes in consultation with the Governor, thereby implying consultation with the state government. Paragraph 57 of the report also states that the expression \for the purpose of this Constitution\ is identical to that phrase in Article 341 and Article 342., The deliberations of the Select Committee report only show that the existing pattern of identification and inclusion of Scheduled Castes and Scheduled Tribes, which entailed the active involvement of the states, was sought to be replicated for the purpose of preparing the list of Other Backward Classes by the President. It was emphasised during the arguments, an aspect that finds due reflection in the draft judgment of Justice Ashok Bhushan, that the term \Central List\ is of crucial significance because it controls the entire provision, i.e., Article 342A, and is in line with the Select Committee Report as well as Parliamentary debates, and that the Supreme Court of India has to give it a purposive interpretation. In my respectful opinion, an isolated consideration of the expression \Central List\ containing classes and communities which are deemed to be backward for the purpose of the Constitution would undermine the entire constitutional scheme. Parliamentary intent, on the contrary, was clearly to replicate the existing pattern for inclusion in the list of Scheduled Castes and Scheduled Tribes for Socially and Educationally Backward Classes – a term that had not been defined in the Constitution till then. Article 342A(1) is the only provision which enables the publication of one list of Socially and Educationally Backward Classes. This provision clearly talks of publication of a list through a Presidential notification for the purpose of the Constitution after the process of identification. It is this list which contains members of classes or communities which can be called as Socially and Educationally Backward Classes by virtue of Article 366(26C). In other words, the subject of Article 342A(1) determines the subject of Article 366(26C), which in turn controls and guides the definition of the term Socially and Educationally Backward Classes for the entire Constitution. This is achieved by using emphatic terms such as \means\ and \deemed to be\. A similar emphasis is found in Article 342A(1), which uses \shall\ for the purposes of the Constitution. In both cases – Articles 366(26C) and 342A(1) – there are no words limiting or terms indicative of restriction as to the extent to which such inclusion is to operate. Thus, like in the case of Articles 341 and 342, those classes and castes included in the list of Socially and Educationally Backward Classes in relation to every state and every Union Territory are (i) for the purposes of the Constitution and (ii) deemed to be Socially and Educationally Backward Classes in relation to the concerned state or Union Territory., The width and amplitude of the expression \shall be deemed\ cannot be diluted or cut down in any manner whatsoever. If one understands that this list in fact identifies Socially and Educationally Backward Classes for the purposes of the Constitution, all that follows in Article 342A(2) is that such list can only be amended by Parliament. The Supreme Court of India, therefore, has to see the object and content of the entire article to determine what it means. Viewed thus, firstly it is linked with Article 366(26C) and the use of the terms \means\ and \deemed\ in the definition is decisive, i.e., there can be no class or caste deemed for the purposes of the Constitution other than those listed under Article 342A. Secondly, Article 342A(1) is the only provision conferring power by which identification is undertaken by the President in the first instance. This identification and publication of the list containing the cases and communities is in relation to each state and each Union Territory. Thirdly, after publication of this notification, if changes are brought about by inclusion or exclusion from that list (called the Central List of Socially and Educationally Backward Classes for the first time), Parliament alone can amend it. It is important that the expression \Central List\ is clarified by the phrase \Socially and Educationally Backward Classes\ specified in a notification under Clause (1), which is reinforced subsequently by the use of the term \aforesaid notification\. Thus, the subject matter of initial identification and publication of the list for the purposes of the Constitution is the President alone (under the aid and advice of the Union Council of Ministers), and any subsequent variation by way of inclusion or exclusion can be achieved only through an amendment by law of that list., If one interprets the entire scheme involving Articles 366(26C), 342A(1) and 342A(2), the irresistible conclusion is that the power of publishing the list of Socially and Educationally Backward Classes in relation to every state and Union Territory for the purposes of the Constitution is with the President only. Such notification is later called the Central List by Article 342A(2) and can only be amended by Parliament. The contrary interpretation would virtually read into the Constitution amendments that were proposed and expressly rejected in the proceedings of the Select Committee; it would also have the effect of reading in what certain dissenting members had proposed. Furthermore, by taking into account the deliberations before the Select Committee and speeches on the floor of Parliament, the Supreme Court of India would be reading into the Constitution provisions which no longer exist, i.e., that the state can continue to carry out identification of Socially and Educationally Backward Classes. This exercise would be contrary to the express terms., Therefore, the above expressions, having regard to the precedents of the Supreme Court of India with respect to (i) interpretation of the definition clause under Article 366; (ii) interpretation of new definitions inserted in Article 366; and (iii) interpretation of amendments made to the Constitution which inserted new provisions, where the Court always leaned in favour of giving fullest effect to the substantive provisions, the Supreme Court of India has to adopt the same approach, to usher change, by plain, literal construction. The Court never whittles down the terminology through extrinsic aids such as speeches made on the floor of Parliament or Select Committee reports. In this instance, doing so would give effect to what Parliamentarians or Ministers said, ignoring the plain terms of the Constitution. As stated earlier, the Court cannot assume that Parliament merely indicated a cosmetic change by conferring constitutional status, which could have been achieved by introducing Article 338B alone., Besides the judgment in Kihoto Hollohan (supra), the Supreme Court of India, in Raghunathrao Ganpatrao v. Union of India, dwelt on the duty of the Court to discern the meaning and give effect to amendments to the Constitution. The Court quoted from Walter F. Murphy, who in Constitutions, Constitutionalism and Democracy explained that an amendment corrects errors of commission or omission, modifies the system without fundamentally changing its nature; an amendment operates within the theoretical parameters of the existing Constitution. The Court observed: \In our Constitution, there are specific provisions for amending the Constitution. The amendments must be made only under and by the authority of the Constitution, strictly following the modes prescribed, subject to the limitations either inherent or implied. The said power cannot be limited by any vague doctrine of repugnancy. There are many outstanding interpretative decisions delineating the limitations so that the constitutional fabric may not be impaired or damaged. An amendment which is a change or alteration is only for the purpose of making the Constitution more perfect, effective and meaningful. But at the same time, one should guard the process of amending any provision of the Constitution so that it does not result in abrogation or destruction of its basic structure or loss of its original identity and character and render the Constitution unworkable. The Court is not concerned with the wisdom behind or propriety of the constitutional amendment because these are matters for those vested with the authority to make the constitutional amendment. All that the Court is concerned with are (1) whether the procedure prescribed by Article 368 is strictly complied with, and (2) whether the amendment has destroyed or damaged the basic structure or the essential features of the Constitution.\, In his article Statutory Interpretation and Constitutional Legislation (sourced from the Cambridge Repository), David Feldman states that at times there is no clear indication why a statute or amendment is introduced: statutes usually carry on their faces no indication of the mischief at which they are aimed; they do not tell a story. Looking at the statute as a whole will not always help; many statutes are collections of knee‑jerk reactions to a number of different stimuli, and the degree of coherence is further reduced where changes in government policy are given effect by amending earlier legislation drafted to give effect to different policies. The article emphasizes that the context and the pre‑existing regime have to be considered while interpreting the amendment or provision. Constitutional provisions establishing the state and its main institutions will often not be a response to a particular mischief. A state's institutional design is more likely to reflect a political theory and idea of good government, as in the United States of America, or to be a result of gradual accretion, as in the United Kingdom, than to be a reaction to an identifiable problem. Problems arising in the pre‑constitutional period may have directly influenced the choice of political theory and thus indirectly affected the distribution of responsibilities between institutions, the powers allocated to each institution, their relationships with each other, and forms of accountability., As to the rationale for introducing Article 366(26C) and the other substantive amendments by the 102nd Amendment, the statement of objects and reasons is not precise. Even the Select Committee Report only voices that constitutional status is to be conferred upon the new commission which would undertake its task and that the pattern existing with respect to Scheduled Castes and Scheduled Tribes would be followed. In these circumstances, given that a limited interpretation would virtually continue the status quo, the Supreme Court of India has to take into account the state of affairs which existed at the time of introduction of the amendment., The rationale for the amendment, highlighting the need for provisions such as Article 338B, Article 342A read with Article 366(26C), is that Parliament had about 71 years of experience working with the Constitution and the system regarding identification of the most backward classes of communities, i.e., Scheduled Castes and Scheduled Tribes. By the 102nd Amendment, one commission for Socially and Educationally Backward Classes was set up to meet the aspirations and expectations of the population who might have become Socially and Educationally Backward Classes for various reasons, to voice their concerns directly for consideration by the National Commission under Article 338B, which could then become the subject matter of inclusion under Article 172. An offshoot of the 102nd Amendment possibly would be that dominant groups or communities, once included as Socially and Educationally Backward Classes by states, would, due to their relatively forward status, likely take a disproportionate share of state benefits of reservation in employment and admission to state institutions. Their inclusion can result in shrinkage of the real share of reservation benefits for the most backward., The existence of a permanent body, which would objectively, without being pressurised by the dust and din of electoral politics, consider the claims for inclusion – not based on ad‑hoc criteria but upon uniformly evolved criteria, with the aid of experts, in a scientific manner – is in consonance with the constitutional objectives of providing benefits to Socially and Educationally Backward Classes, having regard to relative regional and intra‑state levels of progress and development. Given all these factors, the Supreme Court of India is of the opinion that the 102nd Amendment, by inserting Article 366(26C), Article 342A, Article 338B and Article 342A, aligned the mechanism for identification of Socially and Educationally Backward Classes with the existing mechanism for identification of Scheduled Castes and Scheduled Tribes., At this stage, a word about Article 338B is necessary. Earlier, it was noticed that this provision mirrors Articles 338 and 338A and sets out various provisions for setting up a National Commission which is like its counterparts in relation to Scheduled Castes and Scheduled Tribes. The consultative provisions under Articles 338B(7) and 338B(9), in the opinion of the Supreme Court of India, only imply that in matters of identification the states can make their recommendations. However, by reason of Article 342A, it is the President, i.e., the Union Government, whose decision is final and determinative. The determination made for inclusion or exclusion can be amended through a law made by Parliament alone. Given that Article 338B(9) enjoins the state or Union Territory to consult the commission on all major policy matters affecting Socially and Educationally Backward Classes, this consultation cannot imply that the state's view would be determinative or final. The states can, by virtue of Article 338(7), consider the report of the commission and are obliged to table the recommendations before their legislature. The state can even voice its reservations and state why it cannot accept the report. Further, given the imperative and categorical phraseology of Article 342A, the final decision of whether to include any caste or community in the list of Socially and Educationally Backward Classes is that of the Union Government, i.e., the President., The Supreme Court of India is also of the opinion that the change brought about by the 102nd Amendment, especially Article 342A, is only with respect to the process of identification of Socially and Educationally Backward Classes and their list. Necessarily, the power to frame policies and legislation with regard to all other matters – the welfare schemes for Socially and Educationally Backward Classes, setting up of institutions, grants, scholarships, extent of reservations and special provisions under Article 15(4), Article 15(5) and Article 16(4) – is entirely with the state government in relation to its institutions and public services (including services under agencies, corporations and companies controlled by the state government). In other words, the extent of reservations, the kind of benefits, the quantum of scholarships, the number of schools to be specially provided under Article 15(4) or any other beneficial or welfare scheme conceivable under Article 15(4) can all be achieved by the state through its legislative and executive powers. This power would include making suggestions and collecting data, if necessary, through statutory commissions, for making recommendations towards inclusion or exclusion of castes and communities to the President on the aid and advice of the Union Council of Ministers under Article 342A. This accords with the spirit of the Constitution under Article 338B and the principle of cooperative federalism, which guides the interpretation of this Constitution., The President has not yet prepared and published a list under Article 342A(1). In view of the categorical mandate of Article 342A, which must be read along with Article 366(26C), from the date of coming into force of the 102nd Amendment Act only the President, i.e., the Central Government, has the power of ultimately identifying the classes and castes as Socially and Educationally Backward Classes. The Supreme Court of India is conscious that, though the amendment came into force more than two years ago, no list has been notified under Article 342A. It is also noteworthy that the National Commission for Backward Classes Act has been repealed. In these circumstances, the Court holds that the President should, after due consultation with the commission set up under Article 338B, expeditiously publish a comprehensive list under Article 342A(1). This exercise should be completed with utmost expedition given the public importance of the matter. Till such time, the Socially and Educationally Backward Classes lists prepared by the state governments – as in Jindal Stainless Ltd. v. State of Haryana, 2016 Supreme Court Cases OnLine SC 1260; State of Rajasthan v. Union of India (1978) – would continue to hold the field. These directions are given under Article 142, having regard to the drastic consequences which would flow if all state lists were to cease to operate. The consequences of Article 342A would then be so severe as to leave a vacuum with respect to Socially and Educationally Backward Classes' entitlement to claim benefits under Articles 15 and 16 of the Constitution., Re: Point No. 6 Whether Article 342A of the Constitution abrogates the states' power to legislate or classify in respect of any backward class of citizens and thereby affects the federal policy/structure of the Constitution of India?, In Writ Petition 938/2020, learned counsel for the petitioner, Mr. Amol P. Karande urged that the provisions of the 102nd Amendment, especially Article 366(26C) and Article 342A, violate the essential features or the basic structure of the Constitution. It was argued that these provisions impact the federal structure by denuding the state of its power to fully legislate in favour of Socially and Educationally Backward Classes under Entry 25 and Entry 41 of List II, and provide for reservations in favour of Socially and Educationally Backward Classes. It was argued that the power to identify and make suitable provisions in favour of Socially and Educationally Backward Classes has always been that of the states. This constitutional position was recognized in Indra Sawhney (supra), when the Court required the state government to set up permanent commissions. Through the impugned provisions, the President has now been conferred exclusive power to undertake the task of identification of Socially and Educationally Backward Classes for the purposes of the Constitution. It was submitted that this strikes at the root of the federal structure because it is the people who elect the members of the state legislatures, who frame policies suitable for their peculiarly situated needs, having regard to the demands of the region and its people., Learned counsel argued that the original Constitution had set apart the power to identify Scheduled Castes and Scheduled Tribes and conferred it upon the President, after which amendment could be carried out by Parliament. However, such a power was advisably retained as far as the states were concerned, with their executives and legislatures. The deprivation of the states' power strikes at the root of its jurisdiction to ensure that its residents get suitable welfare measures in the form of schemes applicable to Socially and Educationally Backward Classes as well as reservations., Learned counsel relied upon certain passages of the judgment of the Supreme Court of India in Kesavananda Bharati v. State of Kerala to support the argument that, without submitting the amendment for rectification under the proviso to Article 368(2), to the extent it denuded the state legislatures of their powers to make laws in respect of various fields under the State List, the amendment would be void., The Learned Attorney General who represented the Union argued that there is no question of the 102nd Amendment Act or any of its provisions violating any essential feature of the Constitution.
id_886	24	It was submitted that unless the amendment in question directly affects (i.e., takes away the legislative power altogether in the list rather than a part of its content by amending any of the provisions in List II or List III of the Seventh Schedule to the Constitution), there is no need for seeking rectification of a majority of the statutes. The Attorney General relied upon a judgment of the Supreme Court of India in Sajjan Singh v. State of Rajasthan., Two issues arise with respect to the validity of provisions inserted by the 102nd Amendment Act. The first is a facial challenge inasmuch as the petitioner urges that without following the procedure indicated in the proviso to Article 368(2), i.e., seeking approval or ratification of at least one half of the legislative assemblies of all the States, the amendment is void. In this regard what is noticeable is that direct amendments to any of the legislative entries in the three lists of the Seventh Schedule to the Constitution require ratification. Thus, the insertion of substantive provisions that might impact future legislation by the State in an indirect or oblique manner would not necessarily fall afoul of the Constitution for not complying with the procedure spelt out in the proviso to Article 368(2). In Sajjan Singh (supra), the Supreme Court of India held as follows: The question which calls for our decision is: what would be the requirement about making an amendment in a constitutional provision contained in Part III, if as a result of the said amendment, the powers conferred on the High Courts under Article 226 are likely to be affected? The Sajjan Singh Court repelled the challenge, holding that., If that be so, the effect of the amendment on the area over which the High Courts' powers prescribed by Article 226 operate is incidental and in the present case can be described as of an insignificant order. The impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso cannot be sustained., The majority judgment, therefore, decisively held that an interpretation which hinges on indirect impact of a provision, the amendment of which needs ratification of the states, does not violate the Constitution and that unless the amendment actually deletes or alters any of the entries in the three lists of the Seventh Schedule, or directly amends an Article for which ratification is necessary, recourse to the proviso to Article 368(2) was not necessary., More recently, this issue was gone into in Kihoto Hollohan, where a challenge on the ground that all provisions of an amendment which introduced the Tenth Schedule were void for not following the procedure under the proviso to Article 368 were questioned. The Court proceeded to analyse every provision of the Tenth Schedule and held that paragraph 7, which excluded the jurisdiction of all Courts, had the effect of divesting the jurisdiction of Courts under Articles 226 and 32 of the Constitution. In other words, the direct result of the amendment was to bar the jurisdiction of High Courts and thus it directly impacted Chapter 5 of Part VI; a ratification was required by a majority of the States. Since that procedure was not followed, paragraph 7 was held to be violative of the basic structure of the Constitution. The Court applied the doctrine of severability and held that the other parts of the amendment contained in the Tenth Schedule did not need any such ratification and that paragraph 7 alone would be severed on the ground of its being contrary to express constitutional provisions., This Court ruled as follows: In Sajjan Singh case [(1965) 1 Supreme Court Reporter 933 : All India Reporter 1965 Supreme Court 845] a similar contention was raised against the validity of the Constitution (Seventeenth Amendment) Act, 1964 by which Article 31-A was again amended and 44 statutes were added to the Ninth Schedule to the Constitution. The question again was whether the amendment required ratification under the proviso to Article 368. This Court noticed the question thus: (Supreme Court Reporter p. 940)., The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable. If the provisions of the Tenth Schedule are considered in the background of the legislative history, namely, the report of the Committee on Defections as well as the earlier Bills which were moved to curb the evil of defection, it would be evident that the main purpose underlying the constitutional amendment and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body politic. The ouster of jurisdiction of courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions., We accordingly hold on contentions (C) and (D): That there is nothing in the said proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that thereupon the Constitution shall stand amended, the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification. Accordingly, the Constitution (Fifty-second Amendment) Act, 1985, insofar as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal‑sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area. There is no justification for the view that even the rest of the provisions of the Constitution (Fifty-second Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified. Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves, workable and are not truncated by the excision of Paragraph 7., As far as the question of whether the amendment has the effect of violating the basic or essential features so far as it impacts the federal structure of the Constitution is concerned, past decisions have emphasized that a mere change brought about through amendments, however serious the impact, cannot per se be regarded as violative of the basic structure. In Raghunathrao Ganpatrao (supra) the deletion of Articles 291 and 362 of the Constitution by amendment was questioned on the ground that they affected the basic structure or essential features of the Constitution. This Court rejected the argument and held that, on a deep consideration of the entire scheme and content of the Constitution, there is no force in the submissions. In the present case, there is no question of change of identity on account of the Twenty‑sixth Amendment. The removal of Articles 291 and 362 has not made any change in the personality of the Constitution either in its scheme or in its basic features, or in its basic form or in its character. The question of identity will arise only when there is a change in the form, character and content of the Constitution. In fact, in the present case, the identity of the Constitution even on the tests proposed by the counsel of the writ petitioners and interveners remains the same and unchanged., In N. Nagaraj (supra) this aspect was analysed in the following terms: For a constitutional principle to qualify as an essential feature, it must be established that the said principle is a part of the constitutional law binding on the legislature. Only thereafter is the second step to be taken, namely, whether the principle is so fundamental as to bind even the amending power of Parliament, i.e., to form a part of the basic structure. The basic structure concept accordingly limits the amending power of the Parliament. The values impose a positive duty on the State to ensure their attainment as far as practicable. The rights, liberties and freedoms of the individual are not only to be protected against the State, they should be facilitated by it. Overarching and informing these rights and values is the principle of human dignity under the German Basic Law. Similarly, secularism is the principle which is the overarching principle of several rights and values under the Indian Constitution. Therefore, axioms like secularism, democracy, reasonableness, social justice etc. are overarching principles which provide a linking factor for fundamental rights like Articles 14, 19 and others. These principles are beyond the amending power of Parliament., Under the Indian Constitution, the word 'federalism' does not exist in the preamble. However, its principle (not in the strict sense as in the United States) is delineated over various provisions of the Constitution. In particular, one finds this concept in separation of powers under Articles 245 and 246 read with the three lists in the Seventh Schedule to the Constitution. To conclude, the theory of basic structure is based on the concept of constitutional identity. The basic structure jurisprudence is a preoccupation with constitutional identity., The word 'amendment' postulates that the old constitution survives without loss of its identity despite the change and it continues even though it has been subjected to alteration. This is the constant theme of the opinions in the majority decision in Kesavananda Bharati. To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty., Along similar lines, Krishna Iyer, Judge had remarked as to what kind of an amendment would be abhorrent and violate the basic structure in Maharao Sahib Shri Bhim Singhji v. Union of India in the following terms: Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice., By these parameters, the alteration of the content of state legislative power in an oblique and peripheral manner would not constitute a violation of the concept of federalism. It is only if the amendment takes away the very essence of federalism or effectively divests the federal content of the Constitution, and denudes the states of their effective power to legislate or frame executive policies (co‑extensive with legislative power) that the amendment would take away an essential feature or violate the basic structure of the Constitution. Applying such a benchmark, this Court is of the opinion that the power of identification of SEBCs hitherto exercised by the states and now shifted to the domain of the President (and for its modification, to Parliament) by virtue of Article 342A does not in any manner violate the essential features or basic structure of the Constitution. The 102nd Amendment is also not contrary to or violative of the proviso to Article 368(2) of the Constitution of India. As a result, it is held that the writ petition is without merit; it is dismissed., Conclusions. In view of the above discussion, my conclusions are as follows: (1) Indra Sawhney (supra) does not require to be referred to a larger bench nor does it require reconsideration in the light of subsequent constitutional amendments, judgments and changed social dynamics of the society, for the reasons set out by Ashok Bhushan, Judge and my reasons, in addition. (2) The Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by the Constitution Bench in Indra Sawhney's case. I agree with the reasoning and conclusions of Ashok Bhushan, Judge on this point. (3) I agree with Ashok Bhushan, Judge that the State Government, on the strength of the Maharashtra State Backward Commission Report chaired by M.C. Gaikwad, has not made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in Indra Sawhney. (4) Whether the Constitution One Hundred and Second Amendment deprives the State Legislature of its power to enact legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power; and (5) Whether the State's power to legislate in relation to any backward class under Articles 15(4) and 16(4) is abridged by Article 342A read with Article 366(26C) of the Constitution of India. On these two interrelated points of reference, my conclusions are as follows: (i) By introduction of Articles 366(26C) and 342A through the 102nd Constitution of India, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A(1), which shall be deemed to include SEBCs in relation to each State and Union Territory for the purposes of the Constitution. (ii) The States can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission under Article 338B for inclusion, exclusion or modification of castes or communities in the list to be published under Article 342A(1). (iii) The reference to the Central List in Article 342A(2) is the one notified by the President under Article 342A(1). It is to be the only list for all purposes of the Constitution, in relation to each State and in relation to every Union Territory. The use of the term the Central List is only to refer to the list prepared and published under Article 342A(1) and no other; it does not imply that the States have any manner of power to publish their own list of SEBCs. Once published, under Article 342A(1), the list can only be amended through a law enacted by Parliament, by virtue of Article 342A(2). (iv) In the task of identification of SEBCs, the President shall be guided by the Commission set up under Article 338B; its advice shall also be sought by the State in regard to policies that might be framed by it. If the Commission prepares a report concerning matters of identification, such a report has to be shared with the State Government, which is bound to deal with it in accordance with the provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e., the Central Government, under Article 342A(1), by reason of Article 367 read with Section 3(8)(b) General Clauses Act)., (v) The States' power to make reservations in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 except with respect to identification of SEBCs, remains undisturbed. (vi) The Commission set up under Article 338B shall conclude its task expeditiously and make its recommendations after considering which the President shall expeditiously publish the notification containing the list of SEBCs in relation to States and Union Territories for the purpose of the Constitution. (vii) Till the publication of the notification mentioned in direction (vi), the existing lists operating in all States and Union Territories, and for the purposes of the Central Government and central institutions, continue to operate. This direction is issued under Article 142 of the Constitution of India. (6) Article 342A of the Constitution, by denuding the States' power to legislate or classify in respect of any backward class of citizens, does not affect or damage the federal polity and does not violate the basic structure of the Constitution of India., The reference is answered in the above terms. The appeals and writ petitions are therefore disposed of in terms of the operative order of Ashok Bhushan, Judge in paragraph 444 of his Judgment.
id_887	0	W.P. (Cr.) No. 145 of 2024 Hemant Soren, Petitioner, versus Directorate of Enforcement, Government of India, represented through its Assistant Director, Ranchi Zonal Office, Plot No. 1502/B, Airport Road, Ranchi, Jharkhand (email: ed-reanchi@gov.in), P.O. & P.S. Hinoo, District Ranchi, Respondent. For the petitioner: Mr. Kapil Sibal, Senior Advocate; Mr. Rajiv Ranjan, Senior Advocate; Mr. Piyush Chitresh, Advocate; Mr. Shray Mishra, Advocate; Mr. Zoheb Hossain, Advocate; Mr. Amit Kumar Das, Advocate; Mr. Saurav Kumar, Advocate; Mr. Risabh Dubey, Advocate; C.A.V. on 26/02/2024. Pronounced on 28/02/2024., The High Court of Jharkhand, before proceeding to pass an order on merit, refers to the order passed by this Court on 26 February 2024, which reads as follows: The case was listed under the heading 'For Orders with defects'. The learned Senior Counsel for the petitioner submitted that the defect pointed out by the office had already been removed. Mr. Amit Kumar Das, counsel for the Enforcement Directorate, sought leave to file a counter‑affidavit, and a copy was served upon Mr. Rajiv Ranjan. The counter‑affidavit was taken on record. The petitioner indicated that no response to the counter‑affidavit was required. A supplementary affidavit was also filed and taken on record. The Enforcement Directorate did not require time to file any response. The compilation of judgments was filed by Mr. Amit Kumar Das and served upon Mr. Rajiv Ranjan. Both parties submitted that the matter may be heard on merit. The hearing concluded and the judgment was reserved., The instant writ petition is filed under Article 226 read with Article 227 of the Constitution of India seeking the following reliefs: (a) Quashing of the order dated 22 February 2024 passed by the learned Additional Judicial Commissioner (First) cum Special Judge, Prevention of Money Laundering Act, Ranchi, in connection with ECIR No. 06/2023, whereby an application filed on behalf of the petitioner seeking permission to participate in the Budget Session scheduled from 23 February 2024 to 02 March 2024 was rejected in an arbitrary manner; and (b) Granting permission to the petitioner to participate in the Budget Session scheduled from 23 February 2024 to 02 March 2024 in the Jharkhand Vidhan Sabha., The factual background is as follows: An FIR bearing No. 272 of 2023 dated 01 June 2023 was registered by P.S. Sadar, Ranchi, against Bhanu Pratap Prasad, Revenue Sub‑Inspector, under Sections 465, 467, 468, 469, 476, 466, 420, 379 and 474 of the Indian Penal Code. On the basis of this FIR, ECIR No. RNZO/25/23 was recorded by the Enforcement Directorate, Ranchi Zonal Office on 26 June 2023. Various summons were issued to the petitioner, Hemant Soren, and on 20 January 2024 he was questioned by Enforcement Directorate officials and taken into custody on 31 January 2024. He was produced before the Additional Judicial Commissioner (First) cum Special Judge, Prevention of Money Laundering Act, Ranchi on 01 February 2024. The Enforcement Directorate applied for remand, which was granted on 02 February 2024 for five days, extended on 07 February 2024 for another five days, and further extended on 12 February 2024 for 72 hours. The petitioner was produced on 15 February 2024 upon expiry of the remand period and remains in judicial custody. On 20 February 2024, the petitioner applied to the learned court for permission to participate in the Budget Session, but the application was rejected on 22 February 2024 on the ground that such power lies with the Constitutional Court., The petitioner's political background is that he was a Member of Rajya Sabha from June 2009 to January 2010, elected to the Legislative Assembly in December 2009, served as Deputy Chief Minister of Jharkhand from September 2010 to January 2013, and as Chief Minister from July 2013 to December 2014. He again assumed the office of Chief Minister in December 2019 and is presently serving as Chief Minister of the State. A supplementary affidavit states that he was serving as Chief Minister until the date of arrest, i.e., 31 January 2024. The Honorable Governor has called for a Session of the House from 23 February 2024 to 02 March 2024 under Article 174(1) of the Constitution of India, and Notification No. 2575/Vi. Sa dated 12 February 2024 has been issued by the Jharkhand Vidhan Sabha inviting all members to attend the Session. The petitioner contends that, as a sitting member of the Legislative Assembly, he has a right to participate in the Session and therefore seeks an order permitting his participation from 23 February 2024 to 02 March 2024., Mr. Kapil Sibal, Senior Advocate, assisted by Mr. Rajiv Ranjan, Senior Advocate, argued on behalf of the petitioner that the Court’s jurisdiction includes protection of fundamental rights guaranteed under the Constitution of India; that no charge‑sheet has been filed against the petitioner and that the right to participate in the Budget Session cannot be taken away merely on the basis of the ECIR; that the issue does not fall under Section 62(2) and 62(5) of the Representation of the People Act, 1951; and that there is no embargo in that Act denying the right to participate in the Session. The petitioner relied upon the following judgments: Ankul Chandra Pradhan v. Union of India [(1997) 6 SCC 1]; People’s Union for Civil Liberties v. Union of India [(2003) 4 SCC 399]; K. Ananda Nambiar v. Chief Secretary, Government of Madras [(1965) SCC OnLine 74]; Kalyan Chandra Sarkar v. Rajesh Ranjan [(2005) 3 SCC 311]; Mohd. Shahabuddin v. State of Bihar; Nalin Soren v. State of Jharkhand [2013 SCC OnLine Jhar 1216]; and Anil Vasantrao Deshmukh v. Directorate of Enforcement [Special Leave to Appeal (Cr.) No. 5825 of 2022]. The petitioner prayed that the impugned order be quashed and that he be permitted to participate in the Budget Session., The Enforcement Directorate filed a counter‑affidavit vehemently opposing the petitioner’s prayer. It raised the issue of maintainability, contending that a petition under Article 226 is not maintainable against a judicial order. It further argued that the petitioner’s inability to participate in the Session does not infringe any fundamental or constitutional right, as no irreparable loss is shown; the ruling party enjoys a majority of 47 votes against 29 votes of the opposition, so the passage of the Money Bill is not jeopardised. The respondent also alleged that the petitioner, when allowed a trust vote on 5 February 2024, abused the privilege by commenting on proceedings under the Prevention of Money Laundering Act, thereby influencing the investigation. It submitted that any relief granting participation would breach the principle of equality applicable to all persons in lawful custody., Mr. S.V. Raju, Additional Special Government Investigator, assisted by Mr. Amit Kumar Das, counsel for the Enforcement Directorate, submitted that the order of the Additional Judicial Commissioner (First) cum Special Judge, Prevention of Money Laundering Act, Ranchi, is a judicial order and therefore not amenable to writ jurisdiction under Article 226; instead, supervisory jurisdiction under Article 227 would be applicable. It was further submitted that the petition seeks a writ of certiorari, which can be issued only under the extraordinary jurisdiction of Article 226 and not under Article 227, rendering the petition misconceived and liable to be dismissed. The respondent contended that the question of participation does not involve a fundamental right of speech under Article 19(1)(a) or a right of speech within the Assembly under Article 194, and that there is no irreparable loss as the ruling party’s majority would ensure passage of the Money Bill. It distinguished permission to vote or take oath from permission to participate in the Session and argued that no apparent error on the face of the order justifies supervisory intervention under Article 227., Mr. Rajiv Ranjan, Senior Advocate and Advocate General, responded that the objection to maintainability under Article 226 is misplaced because the order dated 22 February 2024 passed by the Additional Judicial Commissioner is a judicial order that can be assailed only under the supervisory jurisdiction of Article 227. He submitted that the petition’s first prayer (quashing the order) is not pressed; the only relief sought is permission to participate in the Budget Session, which can be directed under Article 226 as an extraordinary writ., The High Court, after hearing counsel for both parties and considering the pleadings, addressed the issue of maintainability. It noted that under the Constitution of India, the High Court possesses extraordinary original jurisdiction under Article 226 to issue prerogative writs, including certiorari, whereas Article 227 confers supervisory jurisdiction over subordinate courts and tribunals. The Court referred to the judgment in Shalini Shyam Shetty v. Rajendra Shankar Patii [(2010) 8 SCC 329] for the scope of Article 227, and to the recent decision of the Supreme Court in Garment Craft v. Prakash Chand Goel [(2022) 4 SCC 181] emphasizing that supervisory power is exercised sparingly and only where there is a clear error on the face of the order. The Court also cited Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675] for the distinction that proceedings under Article 226 are original jurisdiction matters, while those under Article 227 are purely supervisory., The judgment is reserved.
id_887	1	Hon'ble Supreme Court of India in the case of Surya Dev Rai (supra) has been pleased to conclude that under Article 226 of the Constitution of India, a writ is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted: without jurisdiction, by assuming jurisdiction where there exists none; in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction; or acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice., The Hon'ble Supreme Court of India, through this judgment, brought all the subordinate judicial bodies under the ambit of Article 226 of the Constitution of India. The judgment rendered in the case of Surya Dev Rai (supra) fell for consideration before the Three Judges Division Bench of the Supreme Court of India in the case of Radhey Shyam & Another vs. Chhabi Nath & Ors. [(2015) 5 SCC 423] in order to consider the correctness of law laid down therein. The view taken by the Supreme Court of India in the case of Surya Dev Rai (supra) has been reversed to the extent that the order passed by the judicial officer will only be amenable under Article 227 of the Constitution of India under its supervisory jurisdiction. The exercise of Article 226 of the Constitution of India is only for the purpose of issuance of a privilege writ., Coming back to the facts of the present case regarding the issue of maintainability, since Mr. Rajiv Ranjan, learned senior counsel (Advocate General), is not in dispute with respect to the aforesaid proposition of law, he has confined his prayer by admitting the ratio laid down by the Supreme Court of India in the case of Radhey Shyam & Another vs. Chhabi Nath & Ors. (supra). He has confined his prayer with respect to prayer No. II only; hence this Court is proceeding to examine the right of the petitioner as far as prayer No. II is concerned, which pertains to the grant of permission to participate in the Budget Session of the Jharkhand Vidhan Sabha., Here it needs to be referred to as per the objection made by Mr. S.V. Raju, learned senior counsel, and the learned Additional Solicitor General of India appearing for the respondent Enforcement Directorate, that the impugned order is operative against the petitioner whether the prayer of the petitioner to participate in the Budget Session has been refused., The Supreme Court of India, so far as this issue is concerned, after going through the impugned order, finds that the learned Additional Judge, 1st cum Special Judge, has not gone into the merit of the issue; rather the claim has been rejected on the ground that the relief, taking into consideration the nature of the prayer, is only to be granted by the Supreme Court of India. Since the same has not been decided on the merits, this Court is of the view that when the prayer made in this writ petition is confined to prayer No. II seeking permission for the petitioner to participate in the Budget Session, which is to be considered by this Court under its extraordinary original jurisdiction, the objection raised by the respondent Enforcement Directorate is without substance., Accordingly, the instant petition is maintainable and to be heard on merit as far as prayer No. II is concerned. The reason for considering the issue on merit is the essence of time, since it has been submitted at the Bar by Mr. Rajiv Ranjan, learned senior counsel (Advocate General) appearing for the petitioner, that 29‑02‑2024, 01‑03‑2024 and 02‑03‑2024 are the probable dates for voting on the Money Bill; hence, the Supreme Court of India deems it fit and proper to decide the issue on merit taking into consideration the second prayer made in the writ petition., The prayer No. II is seeking a direction to the effect that granting permission to the petitioner to participate in the Budget Session scheduled to be held from 23‑02‑2024 up to 02‑03‑2024 in the Jharkhand Vidhan Sabha., The rival submission has been made in this regard on behalf of both sides., Learned senior counsel for the petitioner, on the one hand, has tried to impress upon the Court that due to non‑participation of the petitioner, the Money Bill, if not passed in the Budget Session, will amount to a loss of confidence and the consequence would be the collapse of the government. Further, it is submitted that since the writ petitioner is a member of the ruling alliance, being a member of Jharkhand Mukti Morcha, he needs to participate in the Budget Session., Learned senior counsel has further taken the ground that this is not a case where the petitioner is seeking permission regarding the right to vote in a parliamentary or legislative election; rather, it is a case where the petitioner is seeking permission to participate in the Budget Session, and in that view of the matter the implication, as referred to under Section 62(2) and 62(5) of the Representation of the People Act, 1951, will not come into play., While, on the other hand, learned senior counsel for the respondent Enforcement Directorate has raised a serious objection by taking the ground that there is no irreparable loss, said to be irreversible, if the petitioner does not participate in the Budget Session, even accepting that in the Budget Session the Money Bill would be passed. This reason has been explained at paragraph 10 of the counter affidavit, wherein it has been averred that the number of votes with the alliance party, which is in the government, is 47, while in opposition it is 29. Therefore, if one member (the petitioner) does not participate in the Budget Session, there is no question of collapse of the government. In that view, the loss will not be said to be irreversible., It has also been taken that the aforesaid position of the number of votes has purposely not been pleaded in the writ petition; however, the same has been brought on record by the respondent Enforcement Directorate by way of filing a counter affidavit., Further ground has been taken by considering the conduct of the petitioner as stated at paragraph 15 of the counter affidavit., The Supreme Court of India has considered the rival submissions advanced on behalf of the parties and is now proceeding to examine the issue as to whether the direction, as sought by the petitioner, to allow him to participate in the Budget Session, can be granted., The Supreme Court of India, in order to answer the aforesaid issue, requires to answer the following inter‑linked issues: I. Whether Article 105 or Article 194 of the Constitution of India is said to be under the fold of a fundamental right or merely a right to speech in Parliament or the State Assembly; II. Whether non‑participation of a Member of the Legislative Assembly in the floor will amount to infringement of Article 19(1)(a) of the Constitution of India, which is a fundamental right to speech under Part III; III. Whether the petitioner, being a Member of the State Legislative Assembly in the State of Jharkhand and, in a situation where a serious allegation of laundering of public money has been leveled against him, and he has been taken into custody by the Enforcement Directorate after a valid order of remand, can it be just and proper to pass a direction to grant permission to participate in the proceeding as a legal vested right; IV. Whether, in the facts and circumstances of the case, the non‑participation of the petitioner in the ongoing session can be construed to be an irreparable loss; V. Whether there is a difference between the right to vote, the right to take oath, or the right to participate in a session of Parliament or the State Assembly; VI. Whether the judgment rendered by the Hon'ble Supreme Court of India in K. Anand Nambiar (supra) is only with respect to punitive detention or preventive detention, and whether the judgments of Nalin Soren (supra) and Anit Vasantrao Deshmukh (supra) are applicable in the facts of the case; VII. Whether the implication referred to under Section 62(2) and 62(5) of the Representation of the People Act will not come into play in the facts and circumstances of the present case; VIII. Whether any speech given on the floor by the petitioner, which was alleged to be misconduct, can be examined by the High Court in consideration of the grant of permission to participate in the session., But before that, it is relevant to refer herein to the provision of Article 19(1)(a) of the Constitution; Article 105 relates to the right to speech on the floor of Parliament and Article 194 of the Constitution of India pertains to the right to speech to be made on the floor of the Assembly., For ready reference, Article 19(1)(a), Article 105 and Article 194 of the Constitution of India are quoted hereunder: 19. Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right (a) to freedom of speech and expression. 105. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof. (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. (2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty‑fourth Amendment) Act, 1978. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament. 194. Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof. (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution (Forty‑fourth Amendment) Act, 1978. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature., It is evident from the provision of Article 19(1)(a) of the Constitution of India, which is under Part III, that it is a fundamental right to speech. Article 105 or Article 194 is also a right to speech but it is not under Part III; it is the right to speech on the floor of Parliament or the State Legislative Assembly, as the case may be., The right to speech as per Article 19(1)(a) of the Constitution of India, Article 105 or Article 194 is distinct from each other. Article 19(1)(a), being a fundamental right, confers freedom of speech, while Article 105 or Article 194 of the Constitution of India provides the freedom of speech and the immunities of speech made on the floor of Parliament or the Legislative Assembly, as the case may be., The distinction has been carved out by the Hon'ble Supreme Court of India in the provision of Article 19(1)(a), Article 105 and Article 194 of the Constitution of India in the case of Pandit M.S.M. Sharma vs. Shri Sri Krishna Sinha & Ors., AIR 1959 SC 395, wherein at paragraph 25 the distinction has been carved out between these two constitutional mandates., For ready reference, paragraph 25 of the said judgment is referred herein: 25. Article 194 has already been quoted in extenso. It is quite clear that the subject‑matter of each of its four clauses is different. Clause (1) confers on the members freedom of speech in the legislature, subject, of course, to certain provisions therein referred to. Clause (2) gives immunity to the members or any person authorised by the House to publish any report etc. from legal proceedings. Clause (3) confers certain powers, privileges and immunities on the House of the Legislature of a State and on the members and the committees thereof and finally clause (4) extends the provisions of clauses (1) to (3) to persons who are not members of the House, but who, by virtue of the Constitution, have the right to speak and otherwise to take part in the proceedings of the House or any committee thereof. In the second place, the fact that clause (1) has been expressly made subject to the provisions of the Constitution but clauses (2) to (4) have not been stated to be so subject indicates that the Constitution‑makers did not intend clauses (2) to (4) to be subject to the provisions of the Constitution. If the Constitution‑makers wanted that the provisions of all the clauses should be subject to the provisions of the Constitution, then the Article would have been drafted in a different way, namely, it would have started with the words: Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of the Legislature and then the subject‑matter of the four clauses would have been set out as sub‑clauses (i), (ii), (iii) and (iv) so as to indicate that the overriding provisions of the opening words qualified each of the sub‑clauses. In the third place, it may be argued that the words regulating the procedure of the Legislature occurring in clause (1) of Article 194 should be read as governing both the provisions of the Constitution and the rules and standing orders. Thus, freedom of speech in the Legislature becomes subject to the provisions of the Constitution regulating the procedure of the legislature, that is to say, subject to the Articles relating to procedure in Part VI including Articles 208 and 211, just as freedom of speech in Parliament under Article 105(1), on a similar construction, will become subject to the articles relating to procedure in Part V including Articles 118 and 121. The argument that the whole of Article 194 is subject to Article 19(1)(a) overlooks the provisions of clause (2) of Article 194. The right conferred on a citizen under Article 19(1)(a) can be restricted by law which falls within clause (2) of that article and he may be made liable in a court of law for breach of such law, but clause (2) of Article 194 categorically lays down that no member of the Legislature is to be made liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or in committees thereof and that no person will be liable in respect of the publication by or under the authority of the House of such a Legislature of any report, paper or proceedings. The provisions of clause (2) of Article 194, therefore, indicate that the freedom of speech referred to in clause (1) is different from the freedom of speech and expression guaranteed under Article 19(1)(a) and cannot be curtailed by any law contemplated by clause (2) of Article 19., The powers, privileges and immunities of the State legislature have further been discussed by the Hon'ble Supreme Court of India in the case of Powers, Privileges and Immunities of State Legislature, Re V. Special Reference No. 1 of 1964 [AIR 1965 SC 745], where the question arose regarding the powers, privileges and immunities of the State legislature and its members. Emphasis was laid on the concept of freedom of speech in the legislative assembly. Their Lordships, interpreting Article 194(1), ruled that had the legislators been entitled only to freedom of speech and expression as enshrined under Article 19(1)(a), the conferment of the same right in the manner adopted by Article 194(1) would have been unnecessary and, therefore, concluded that Article 19(1)(a) was not one of the provisions of the Constitution which controlled the first part of clause (1) of Article 194., It was further held that it was due to the importance attached to the necessity of absolute freedom in debates within the legislative chambers by the Constitution makers that they thought it necessary to confer complete immunity on the legislators from any action in any court in respect of their speech, including votes in the legislative chambers, in the wide terms prescribed by clause (2)., Thus, clause (1) confers freedom of speech on legislators within the legislative chamber and the same was made literally absolute and unfettered by virtue of clause (2)., Again in the case of P.V. Narasimha Rao vs. State (CBI/SPE) [(1998) 4 SCC 626] the same has been taken into consideration as under paragraph 27, which reads: 27. Clause (1) secures freedom of speech in Parliament to its Members. The said freedom is subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament. The words 'subject to the provisions of this Constitution' have been construed to mean subject to the provisions of the Constitution which regulate the procedure of Parliament, viz., Articles 118 and 121. (See: M.S.M. Sharma v. Sri Krishna Sinha [AIR 1959 SC 395 : 1959 Supp (1) SCR 806] SCR at p. 856 and Special Reference No. 1 of 1964 [AIR 1965 SC 745 : (1965) 1 SCR 413 (also known as Keshav Singh case)] also known as the Legislative Privileges case [AIR 1965 SC 745 : (1965) 1 SCR 413] SCR at p. 441.) The freedom of speech that is available to Members of Parliament under Article 105(1) is wider in amplitude than the right to freedom of speech and expression guaranteed under Article 19(1)(a) since the freedom of speech under Article 105(1) is not subject to the limitations contained in Article 19(2)., The purpose of referring to the distinction between Article 19(1)(a) and Articles 105 and 194 is to consider whether seeking participation in the Budget Session can be said to be a fundamental right., Since the right to speech as guaranteed under Article 19(1)(a) of the Constitution of India has been held to be distinct from Article 105 and Article 194, merely because a Member of Parliament or a Member of the State Legislative Assembly is not allowed to participate in the proceeding due to a valid detention after a valid order of remand, the same cannot be construed to be a violation of Article 19(1)(a) of the Constitution of India., Further, Article 105 or Article 194 will also not be applicable in view of the fact that they deal with immunity from liability under any proceeding of any Court based upon the speech given by the concerned Member in Parliament or any committee or the Legislative Assembly. Therefore, participation in the Assembly, given that it is not under the fold of Article 19(1)(a) or Article 105 or Article 194, is not entitled to immunity, which would arise only if a Member participates on the floor and, by virtue of speech given therein, claims immunity under the said provision., But even admitting that the petitioner does not have a fundamental right to participate in the proceedings of the Session nor any constitutional right, the petitioner, being a Member of the State Legislative Assembly in the State of Jharkhand, and in a situation where a serious allegation of laundering of public money has been leveled against him and he has been taken into custody by the Enforcement Directorate after a valid order of remand, can it be just and proper to pass a direction to allow him to participate in the proceedings as a legal vested right, which is also to be examined by the Court exercising the power conferred under Article 226 of the Constitution of India, setting aside the fundamental right referred to under Part III of the Constitution of India., The legal vested right has been defined many times by the Hon'ble Supreme Court of India. A vested right is a right independent of any contingency and it cannot be taken away without the consent of the person concerned. A vested right can arise from contract, statute or by operation of law., In this regard, it would be relevant to mention the meaning of vested/accrued right, as discussed by the Hon'ble Supreme Court of India in MGB Gramin Bank vs. Chakrawarti Singh [(2014) 13 SCC 583] at paragraphs 11, 12 and 13, which read: 11. The word 'vested' is defined in Black's Law Dictionary (6th Edn.) at p. 1563 as: Vested – fixed; accrued; settled; absolute; complete; having the character of absolute ownership; not contingent; not subject to being defeated by a condition precedent. Rights are vested when the right to enjoyment, present or prospective, has become property of a particular person or persons as a present interest; a mere expectancy of future benefits, or a contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights. 12. In Webster's Comprehensive Dictionary (International Edition) at p. 1397, 'vested' is defined as held by tenure subject to no contingency; complete; established by law as a permanent right; vested interest. 13. Thus, a vested right is a right independent of any contingency and cannot be taken away without the consent of the person concerned. A vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision or scheme could be changed., It is evident from the interpretation of the phrase 'legal vested right' that it is to be applied only if the petitioner has a right to participate in the proceeding. It can be said to be available in a case where no legal proceeding is pending, whereby a people's representative, such as a member of the State Legislative Assembly who has been elected, may present himself on behalf of the constituents, and in such circumstances it can be said to be a vested legal right., But this must be considered from a different angle if such a Member of Parliament or Member of the State Legislative Assembly has been taken into judicial custody by virtue of a valid order of remand. The admitted position is that the order of remand has not been challenged and, after the valid order of remand, the petitioner is languishing in judicial custody on the basis of an allegation of laundering of public money, as per the ECIR under the provisions of the Prevention of Money Laundering Act, 2002. In such circumstances, it cannot be said that any legal vested right has accrued to the petitioner to participate in the proceedings of the floor., As far as the issue of irreparable loss due to non‑participation of the petitioner in the Assembly session is concerned, circumstances of irreparable loss will be said to exist if the voting strength of the ruling and opposition parties is neck‑to‑neck, whereby there is a probability of the budget not being passed, leading to loss of confidence in the government and an adverse impact across the State., The principle will be otherwise if such a situation does not exist; in that circumstance, if the petitioner is not allowed to participate and, as a consequence, the government falls, the loss will be said to be irreversible., The word 'irreversible' has been noted by the Hon'ble Supreme Court of India in the case of Kihoto Hollohan v. Zachillhu & Ors. [1992 Supp (2) SCC 651], wherein, in matters of interlocutory orders, an exception has been carved out for cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions., For ready reference, paragraphs 110 and 111 of the judgment are quoted: 110. In view of the limited scope of judicial review available because of the finality clause in Paragraph 6 and having regard to the constitutional intent and the status of the repository of adjudicatory power, i.e., the Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. However, an exception must be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions. 111. In the result, we hold on contentions (E) and (F): That the Tenth Schedule does not, in providing for an additional ground for disqualification and for adjudication of disputed disqualifications, seek to create a non‑justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power. Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen, is valid. However, the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non‑compliance with Rules of Natural Justice and perversity are concerned. The deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution, as understood and explained in Keshav Singh case [(1965) 1 SCR 413 : AIR 1965 SC 745], to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words 'be deemed to be proceedings in Parliament or proceedings in the legislature of a State', confines the scope of the fiction accordingly. The Speakers/Chairmen, while exercising powers and discharging functions under the Tenth Schedule, act as a tribunal adjudicating rights and obligations under the Tenth Schedule, and their decisions in that capacity are amenable to judicial review. However, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. No quia timet actions are permissible; the only exception for any interlocutory interference is cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions.
id_887	2	The word irreversible is having bearing herein reason being that if the situation is so that the loss caused will be irreversible then it will come into the fold of irreparable loss and the same was the interpretation made by the Hon'ble Supreme Court of India in paragraph 110 and 111 of the judgment referred in Kihoto Hollohan v. Zachillhu & Ors (supra) wherein it has been held that the power of judicial review is to be exercised after the final decision is taken by the Speaker and if the order is found to be in violation of constitutional mandates, mala fides, non‑compliance with Rules of Natural Justice and perversity, as would appear from the proposition of law laid down at paragraph 111 of the said judgment that there is no complete embargo in exercising the power of judicial review even in the interlocutory stage; rather the same can be exercised in cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequences. In the aforesaid proposition the word irreversible and consequence are of paramount consideration as if the membership of the writ petitioner will be cancelled by declaring him disqualified in exercise of power conferred to the Speaker the same would have irreversible repercussion., Applying the said proposition of law to the facts of the case, the loss will be said to be irreversible if the voting members of the ruling party and the opposition are neck‑to‑neck; for example, if the number of members of the Legislative Assembly are 40 and 39 respectively, then non‑participation of a member at the time when the budget is to be passed will have repercussions and may lead to non‑passing of the money bill, creating a likelihood of the collapse of the government, which would constitute irreversible loss that is not compensated and would be an irreparable loss., That is not the situation herein, which is evident from the statement made by the Enforcement Directorate at paragraph 10 of the counter affidavit that the members of the Legislative Assembly on the ruling side are 47 and on the opposition side are 29 as per the trust vote dated 05‑02‑2024., For ready reference, paragraph 10 of the counter affidavit is quoted as under: 10. No case of irreparable injury or irreversible damage is made out by the petitioner for the reason that when the petitioner had participated in the trust vote when he was taken into custody on 05‑02‑2024 the political party of which the petitioner is a member had secured 47 votes as against 29 votes by the opposition which clearly makes out that his absence or presence would make no difference to the ultimate outcome of the voting under the money bill. Therefore, the argument that the voting in the money bill amounts to a confidence vote on the government, therefore his presence is indispensable, is without substance and no case for irreparable injury is made out. In these circumstances if one member of the Legislative Assembly, i.e., the petitioner herein, will not participate it cannot be said to be a loss irreparable causing irreparable loss to the petitioner or its party., On the basis of the discussion made above, the Jharkhand High Court is of the view that no irreparable loss will be caused to the petitioner due to non‑participation in the ongoing Assembly session., So far as the issue of difference between the right to vote, the right to take oath and the right to participate in the session of Parliament or the State Assembly is concerned, admittedly the right to vote, the right to take oath and the right to participate in the ongoing session are valuable rights. Therefore, the parameters to be looked into with respect to the issue of right to vote and right to contest are different from those applicable to the right to participate in the session., It could be understood that the right to vote and the right to take oath can be said to be valuable rights but, as far as the right to participate in the Budget Session in a case of punitive detention is concerned, it cannot be said to be a vested right, as per the judgment rendered by the Hon'ble Delhi High Court in the Suresh Kalmadi case wherein the Hon'ble Delhi High Court took note of the judgment rendered by the Supreme Court of India in K. Anand Nambiar & Anr. v. Chief Secretary to the Government of Madras & Ors (supra)., But insofar as the parameter which is to be applied either in the case of the right to vote or the right to take oath, the same being mandatory in nature in view of a valuable right, the Court can pass an appropriate order allowing such a Member of Parliament or Assembly, as the case may be, to participate in the session for the purpose of voting or taking oath. However, the right to participate in the session, when a Member of Parliament or Legislative Assembly is languishing in judicial custody on the basis of a valid order of remand passed by the competent Court of criminal jurisdiction, cannot be allowed, taking into consideration the law laid down by the Supreme Court of India in K. Anand Nambiar & Anr. v. Chief Secretary to the Government of Madras & Ors (supra)., The aforesaid issue requires consideration since the learned senior counsel appearing for the petitioner has relied upon the judgments rendered by the Supreme Court of India in Nalin Soren v. State of Jharkhand (supra) and Anil Vasantrao Deshmukh v. Directorate of Enforcement & Anr. (supra), which were cases where permission was allowed to participate in the vote of confidence., The learned senior counsel appearing for the petitioner has relied upon the judgment rendered in Nalin Soren v. State of Jharkhand, Jharkhand (2013 SCC OnLine Jhar 1216), which was passed in consequence of the order passed by the Supreme Court of India in Special Leave to Appeal (Criminal) No. 5859 of 2013, wherein the said Nalin Soren was allowed to participate, but as would appear from the aforesaid order the same was permission to participate in the vote of confidence., For ready reference, the judgment passed by the Supreme Court of India in Nalin Soren (supra) is quoted as under: This matter was mentioned in the morning by Vivek Tankha, learned senior counsel on behalf of a sitting MLA of the Jharkhand Legislative Assembly, Mr. Nalin Soren, against whom certain criminal proceedings appear to have been taken. Mr. Tankha submitted that a vote of confidence was to be taken in the Assembly on that day in Ranchi at 2.00 p.m. and that the petitioner, if arrested, would be prevented from casting his vote in the confidence motion. We therefore requested either Mr. Atul Jha or Mr. Tapesh Singh, learned advocates, to be present when the matter was taken up. Pursuant thereto, Mr. Tapesh Singh was present when the matter was taken up. Having regard to the urgency, we disposed of the matter by directing that the petitioner may surrender to the police authorities forthwith and if he is taken into custody, he shall be escorted to the Assembly in custody for the purpose of participating in the proceedings in the Assembly. Thereafter, the petitioner will remain in custody and may proceed to take other steps, as he may be advised. The special leave petition which is directed against the order dated 17 July 2013, passed in I.A. No. 4908 of 2013 in Writ Petition (Criminal) No. 103 of 2012, passed by the Jharkhand High Court, is disposed of accordingly. Let a copy of this order be made available immediately to learned counsel for both parties, who will ensure that it is communicated to the Speaker of the Assembly immediately., Likewise, the order passed by the Supreme Court of India in Anil Vasantrao Deshmukh v. Directorate of Enforcement & Anr., passed in Special Leave to Appeal (Criminal) No. 5825 of 2022, also relates to seeking permission to participate in the proceedings of the floor test to be conducted in the special session of the State Legislature., For ready reference, the judgment passed in Anil Vasantrao Deshmukh v. Directorate of Enforcement & Anr. (supra) is quoted as under: Having heard the learned senior counsel for the applicants‑petitioners and Shri Tushar Mehta, the learned Solicitor General appearing on behalf of the respondents, we allow the applicants‑petitioners to participate in the proceedings of the floor test to be conducted in the special session of the Maharashtra Vidhan Sabha scheduled to be held on 30 June 2022 at 11.00 A.M. Since the applicants‑petitioners are presently in judicial custody pursuant to the cases registered against them by the Enforcement Directorate and the Central Bureau of Investigation respectively, both agencies are directed to escort the applicants to the Vidhan Sabha Hall and, once the proceedings are over, the applicants shall be brought back to jail and taken into judicial custody. Shri Chitnis, the learned counsel appearing for the State of Maharashtra, undertakes to inform the concerned jail authorities for compliance of the instant order. Interlocutory applications are disposed of in the above terms., Therefore, the reliance placed by the learned counsel for the petitioner on both the Nalin Soren case and the Anil Vasantrao Deshmukh case is not applicable to the facts of the present case., Herein the case of the petitioner is not for participation in the floor test; rather it is for participation in the budget session., The issue of participation in Parliament or the State Assembly has also been elaborately discussed by the Supreme Court of India in K. Anand Nambiar & Anr. v. Chief Secretary to the Government of Madras & Ors (supra). The same needs to be referred to herein in order to consider the submission made on behalf of Mr. Kapil Sibal, learned senior counsel appearing for the petitioner, that the K. Anand Nambiar case is only to be applied in cases of preventive detention, which is not the proposition laid down, as evident from paragraph 18, wherein it has been laid down that the parameter to be followed in a case of conviction and sentence inflicted will also be applicable if a person has been detained by forgoing his right in the business of the legislature., For ready reference, paragraph 18 of the judgment is quoted hereinbelow: There is another aspect of this problem to which we would like to refer at this stage. Mr. Setalvad has urged that a Member of Parliament is entitled to exercise all his constitutional rights as such Member, unless he is disqualified and for the relevant disqualifications, he has referred to the provisions of Article 102 of the Constitution and Section 7 of the Representation of the People Act. Let us take a case falling under Section 7(b) of this Act. It will be recalled that Section 7(b) provides that if a person is convicted of any offence and sentenced to imprisonment for not less than two years, he would be disqualified for membership, unless a period of five years, or such less period as the Election Commission may allow in any particular case, has elapsed since his release. If a person is convicted of an offence and sentenced to less than two years, clearly such conviction and sentence would not entail disqualification. Can it be said that a person who has been convicted of an offence and sentenced to suffer imprisonment for less than two years is entitled to claim that notwithstanding the said order of conviction and sentence, he should be permitted to exercise his right as a legislator, because his conviction and sentence do not involve disqualification? It is true that the conviction of a person at the end of a trial is different from the detention of a person without a trial; but so far as their impact on the alleged constitutional rights of the Members of Parliament is concerned, there can be no distinction. If a person who is convicted and sentenced necessarily has to forego his right of participating in the business of the legislature to which he belongs because he is convicted and sentenced, it would follow that a person who is detained must likewise forego his right to participate in the business of the legislature. Therefore, the argument that so long as the Member of Parliament has not incurred any disqualification, he is entitled to exercise his rights as such Member, cannot be accepted., It is thus evident that the Supreme Court of India in K. Anand Nambiar & Anr. v. Chief Secretary to the Government of Madras & Ors (supra) has laid down the proposition that there may be no distinction between the case of a person who has been convicted at the end of trial and the person who has been detained without trial, as far as their impact on the alleged constitutional rights of the Member of Parliament or Assembly is concerned., Thus, it can safely be said that a person who is detained on the basis of a valid order of custody will also have to forgo his right of participation in the business of the legislature., It is pertinent to mention that in the case of Raghu Raj Pratap Singh alias Raja Bhaiya v. State of Uttar Pradesh, [2003 SCC OnLine All 265], a Division Bench of the Allahabad High Court (Lucknow Bench) declined permission, stating that the rights and obligations under Article 194 of the Constitution of India referred to by the learned counsel for the petitioners were rights and privileges inside the House and, if they were detained by a valid order, they could not enjoy those privileges and rights so long as they were under detention. It was further held that the right to vote, the right to contest election of the Assembly or Parliament, or the right to take oath as a legislator or parliamentarian were different rights and did not particularly help the case of the petitioners., Further, in the case of Suresh Kalmadi v. Union of India & Ors [2011 SCC OnLine 3639], the Division Bench of the Hon'ble Delhi High Court dealt with the right to participate in Parliament or the legislature as well as the implication of Article 19(1)(a), Article 105(1) and Article 194 of the Constitution of India., In the aforesaid judgment the Delhi High Court relied upon the judgment rendered in K. Anand Nambiar & Anr. v. Chief Secretary to the Government of Madras & Ors (supra), Tej Kiran Jain v. Sanjiva Reddy [(1970) 2 SCC 270] and P.V. Narsimha Rao v. (incomplete citation). The Delhi High Court also took note of the judgment passed by the Jharkhand High Court in Kameshwar Baitha v. State of Jharkhand (Writ Petition (Criminal) No. 427 of 2009) dated 04‑12‑2009, wherein permission to the petitioner to attend Parliament was declined., The Delhi High Court, after discussing all the judgments and the constitutional mandate, held at paragraph 28 that the submission of Mr. Desai is that when the appellant is an accused and the innocence of an accused is recognized in law, he is not debarred or disqualified to attend Parliament. There is a subtle distinction between disqualifications for membership and grant of permission to attend the proceedings in a parliamentary session. Once a person is disqualified, he cannot participate or attend the parliamentary sessions. The Court at that juncture has no discretion whatsoever. As has been evident from the case of Rajesh Ranjan (supra), the Apex Court exercised discretion and granted permission to take oath. Thus, discretion is exercisable in certain circumstances to permit an accused to attend the parliamentary session but, a significant point, no discretion is left when someone is convicted as he is disqualified., Paragraph 29 of the same judgment states: Thus, the hub of the matter is whether this Court, in exercise of the power under Article 226 of the Constitution of India, should grant permission to the appellant to attend the parliamentary session. The appellant has been involved in offences by which loss to the Government to the tune of Rs 95 crores is alleged to have been caused. His detention is in respect of offences which are quite grave in nature. He has not been admitted to bail because of the nature of the offences. He does not have a right under the Constitution to claim that in spite of being in custody, he should be allowed to attend Parliament. In the case of K. Anand Nambiar v. Chief Secretary to the Government of Madras, AIR 1966 SC 657, it has been clearly held that if the order of detention is validly passed and this prevents a member from attending a session of Parliament, no occasion arises for exercise of the right to freedom of speech and no complaint can be made that the said right has been invalidly invaded. We must fairly state that Mr. Desai has not really founded his case on the basis of any constitutional or statutory right but on the conception that participation becomes imperative as a constitutional obligation, casting regard to the spectrum of parliamentary democracy which is a basic feature of the Constitution of India. As stated earlier, in the case at hand, the arrest and incarceration are valid in law and the appellant has not been released on bail. Though the Apex Court in K. Anand Nambiar (supra) dealt with preventive detention, the present case relates to arrest and custody. When the appellant's custody is valid and the allegations are of great magnitude, it would be totally inappropriate to exercise discretion under Article 226 of the Constitution of India to grant permission to attend the parliamentary session solely on the foundation of freedom of speech inside Parliament or exclusive privilege as a Member., It is evident from the aforesaid judgment that when the appellant's custody is valid and the allegations are of great magnitude, it would be totally inappropriate to exercise discretion under Article 226 of the Constitution of India to grant permission to attend the assembly session solely on the foundation of freedom of speech inside the assembly or exclusive privilege as a Member., From the discussions made above it is evident that the right to vote, the right to contest election of the Assembly or Parliament, and the right to take oath as a legislator or parliamentarian are different rights and do not particularly help the case of the petitioner., So far as the argument advanced on behalf of the petitioner relying upon the provisions of Section 62(2) and Section 62(5) of the Representation of the People Act is concerned, there is no dispute that those provisions speak with respect to the prohibition of a person in casting a vote or contesting an election in case of conviction. The reliance placed on those provisions in the case of Ankul Chandra Pradhan v. Union of India (supra) is not applicable, as this is not a case of conviction and hence there is no question of applicability of Section 62(2) and Section 62(5) of the Representation of the People Act., The learned senior counsel has tried to impress upon the Court by referring to these provisions for the reason that the right to cast a vote or to contest election is only prohibited as per Section 62(2) and Section 62(5) of the Representation of the People Act., According to the considered view of the Jharkhand High Court, since the petitioner has already been an elected member and we are not dealing with his disqualification either to cast a vote in an election or to contest an election, it is not a case of consideration of applicability of Section 62(2) and Section 62(5) of the Representation of the People Act., Accordingly, Issue Nos. I to VII are hereby answered., The issue of conduct of the petitioner has also been raised on behalf of the respondent Enforcement Directorate as appears from paragraph 15 of the counter affidavit, which reads: 15. Conduct of the petitioner – The petitioner, when taken into custody to the Assembly for the trust vote on 05‑02‑2024, abused the indulgence granted by the learned Special Court by commenting on the proceedings under the PMLA with an attempt to influence the investigation and seeking to cast aspersions on the arrest, matters which are sub‑judice. Therefore, the prayer for permission to the petitioner to participate in the budget session is made in the garb of voting on the money bill but the real object appears to be to cast aspersions on the investigation conducted by the Enforcement Directorate and to influence witnesses as well as to prejudice the proceedings pending before this Court in relation to his arrest. It is submitted that the same amounts to contempt of the Court as per the law laid down by the Hon'ble Supreme Court in In Re P.C. Sen, (1969) 2 SCR 649, wherein it was held that any act or writing calculated to bring a court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice, is contempt of Court., The Jharkhand High Court, considering that privilege under Article 194 of the Constitution of India stipulates that no member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, is of the view that the issue of conduct of the petitioner on the ground of alleged speech made on the floor is not fit to be looked into by this Court, since the alleged speech was made on the floor; therefore, this Court is not commenting upon the same., Accordingly, Issue No. VIII is answered., The Jharkhand High Court, after deciding the issues, is of the view that it is not a fit case to grant permission to the petitioner to participate in the ongoing Budget Session in the Jharkhand Vidhan Sabha., Accordingly, the instant writ petition lacks merit and is hereby dismissed., Before parting with the order, it is made clear that any observation(s) made in the order are only in the context of refusal of participation in the Budget Session.
id_888	0	The High Court of Allahabad reserved judgment on 27 July 2023 and delivered on 3 August 2023. Petitioner: C/M Anjuman Intezamia Masajid Varanasi. Respondent: Smt. Rakhi Singh and eight others. Counsel for petitioner: S. F. A. Naqvi, Senior Advocate; Puneet Kumar Gupta; Syed Ahmed Faizan; Zaheer Asghar; Ms. Fatma Anjum; Munnaur Hussain; Mumtaz Ahmad; Akhlaq Ahmad; Mehmood Alam; Poorva Agarwal; Vipul Dubey; and Devendra Mishra. Counsel for respondents: Ajay Mishra, Advocate General; Ashok Mehta, Additional Advocate General; M. C. Chaturvedi, Additional Advocate General; Kunal Ravi Singh, Chief Standing Counsel; Vijay Shanker Mishra, Chief Standing Counsel; Ishan Mehta, Additional Chief Standing Counsel; Ankit Gaur, Standing Counsel; Hare Ram Tripathi, Standing Counsel; Manoj Kumar Mishra, Standing Counsel; Ishan Dev Giri, for the State; Shashi Prakash Singh, Additional Solicitor General of India; Manoj Kumar Singh and Purnendu Kumar Singh for the Union of India; Vishnu Shanker Jain; Prabhash Pandey; and Saurabh Tiwari for plaintiffs/opposite parties 1 to 5; and Vineet Sankalp for opposite party no. 9., The present petition is filed under Article 227 of the Constitution of India challenging the order dated 21 July 2023 passed by the District Judge, Varanasi in Original Suit No. 18 of 2022 (693/2021) (Rakhi Singh & Others v. State of Uttar Pradesh & Others). The petition prays that this Court may direct the court below not to proceed further in pursuance of the impugned order dated 21 July 2023., By the impugned order dated 21 July 2023, the court below allowed applications 327C and 330C of the plaintiffs and issued the following directions: (a) The Director of the Archaeological Survey of India is directed to undertake scientific investigation, survey and excavation at the property in question, i.e., Settlement Plot No. 9130, excluding the areas sealed by the Supreme Court by orders dated 17 May 2022, 20 May 2022 and 11 November 2022 in Special Leave Petition (Civil) No. 9388/2022 titled Committee of Management Anjuman Intezamia Masajid Varanasi v. Rakhi Singh & Others; (b) The Director is also directed to conduct a detailed scientific investigation using Ground Penetrating Radar (GPR) survey, excavation, dating methods and other modern techniques to determine whether the present structure has been constructed over a pre‑existing Hindu temple; (c) The Director is directed to conduct scientific investigation after associating the plaintiffs, defendants and their respective counsels and to submit a report to this Honourable Court by 4 August 2023, together with photographs and video‑graph of the entire survey proceedings; (d) The Director is directed to investigate the age and nature of construction of the western wall of the building through scientific methods; (e) The Director is directed to conduct a GPR survey just below the three domes of the building and to conduct excavation if required; (f) The Director is directed to conduct a GPR survey beneath the western wall and to conduct excavation if required; (g) The Director is directed to conduct a GPR survey beneath the ground of all the cellars and to conduct excavation if required; (h) The Director is directed to prepare a list of all artefacts found in the building, specifying their contents, and to carry out scientific investigation and dating exercises to determine their age and nature; (i) The Director is directed to conduct dating exercises of the pillars and plinth of the building; (j) The Director is directed to conduct GPR survey, excavation wherever required, dating exercises and other scientific methods for determining the age and nature of construction existing at the site; (k) The Director is directed to investigate artefacts and other objects of historical and religious importance existing in different parts of the building and also beneath the structure; the Director is also directed to ensure that there is no damage to the structure standing on the disputed land and that it remains intact and unharmed. The report is to be submitted by 4 August 2023., In the aforesaid suit, bearing Original Suit No. 18 of 2022 (Old Regular Civil Suit No. 693 of 2021), the plaintiffs pray to protect their right to religion guaranteed under Article 25 of the Constitution of India. They also pray for a mandatory and permanent injunction against the defendants restraining any interference with the performance of darshan and pooja of Goddess Maa Shringar Gauri, Lord Ganesha, Lord Hanuman, Nandiji, visible and invisible deities, mandaps and shrines existing within the old temple complex situated at Settlement Plot No. 9130 in the area of Ward and Police Station Dashaswamedh, District Varanasi, and that the images of deities not be damaged, defaced, destroyed or harmed., The suit averred that a glorious lofty temple once stood at Adivisheshwar Jyotirlinga near Dashaswamedh Ghat in the heart of Varanasi. Muslim invaders, beginning with the attack of Muhammad Gori in 1193‑94 AD, started damaging, destroying and desecrating Hindu temples, including the Shiva temple at Kashi (now Varanasi). Subsequent invaders repeated similar acts, but the temple was rebuilt at the same place. It is further averred that in 1585 the Governor of Jaunpur, at the instance of his guru Narayan Bhatt, reconstructed a magnificent temple of Lord Shiva at Settlement Plot No. 9130, consisting of a central sanctum (garbhagriha) surrounded by eight mandaps. The suit also states that Settlement Plot No. 9130, together with five kos of land, had vested in the deity Adivisheshwar de jure many years ago, and that despite this, Muslims, without creating any waqf or having ownership of the land, forcibly raised a construction and termed it the Gyanvapi Mosque., According to the plaintiffs, the structure of the Gyanvapi Mosque was originally a temple that was demolished by Muslim rulers in the era of 1193‑94 AD. The plaintiffs rely on several facts to demonstrate that the structure was nothing but a temple., In the suit filed on 16 August 2021 for declaration, permanent and mandatory injunction, the plaintiffs filed applications 327C and 330C under Section 75(e) and Order XXVI Rule 10A read with Section 151 of the Code of Civil Procedure seeking the directions enumerated in paragraph 3., The plaintiffs contended that, pursuant to the order passed by the court below, a Court Commissioner was appointed who submitted his report on 18 May 2022 regarding proceedings conducted on 6 and 7 May 2022. The report indicated that a fake Shivlingam was found within the property in question during the survey made on 16 May 2022 in the presence of the plaintiffs, defendants and learned counsel representing various parties., Challenging the order directing the appointment of an Advocate Commissioner, the Committee of Management Anjuman Intezamia Masajid filed a writ petition under Article 227 (Matter No. 2946 of 2022), which was dismissed by this Court on 21 April 2022. The Committee then filed Special Leave Petition No. 9388 of 2022 before the Supreme Court, challenging the order dated 21 April 2022 passed by the Allahabad High Court, which had upheld the order dated 8 April 2022 passed by the learned Civil Judge (Senior Division), Varanasi. The Supreme Court, by order dated 20 May 2022, transferred Civil Suit No. 693 of 2021 from the Court of the Civil Judge (Senior Division), Varanasi to the Court of the District Judge, Varanasi. The Supreme Court also observed that (i) an application filed by the defendant under Order VII Rule 11 of the Code of Civil Procedure shall be decided on a priority basis; (ii) all interlocutory and ancillary proceedings in the suit shall be addressed to and decided by the Court of the District Judge; and (iii) since parties are appearing on notice, all orders in the suit shall be passed after hearing the parties., The plaintiffs further state that an ancient Shivlingam was discovered by the Advocate Commissioner on 16 May 2022. The Shivlingam is an object of worship by Hindu devotees and is believed to have existed at the place from time immemorial. The plaintiffs submit that scientific investigation is necessary to ascertain the length, width, height, age, composition and constituents of the Shivlingam., Learned counsel for the defendant (defendant no. 4) submitted that once all parties are asked to maintain the status quo of the property, no interference can be directed by the Archaeological Survey of India. He argued that the issues are yet to be framed, the list of witnesses has not been disclosed, and the applications 327C and 330C have been filed merely to create evidence. He contended that the plaintiffs have no admissible evidence and are employing false tactics. He relied on the Ayodhya case (M. Siddiq (deceased) through Legal Representatives (Ram Janambhumi Temple Case) v. Mahant Suresh Das & Others, 2020 (1) SCC 1) to argue that no public agency should be permitted to create evidence in such a manner. He further argued that the court below did not record any finding as to why scientific investigation without harming the existing structures is necessary, and that such investigation would inevitably cause damage. He submitted that scientific investigation can be undertaken only when, after adducing evidence, the court is unable to decide the dispute. He also submitted that the suit is barred by the Places of Worship (Special Provisions) Act, 1991, because the disputed structure has been standing since before 1947. He noted that an earlier application under Order XXIV Rule 9 of the Code of Civil Procedure for appointment of an Advocate Commissioner was allowed, the Commissioner submitted his report, and the report is still pending disposal. He argued that the Archaeological Survey of India is not a party to the suit and therefore cannot be directed to conduct scientific investigation. He pointed out that although the suit was filed in 2021, the applications were filed only in 2023, and the plaintiffs remained silent for two years., The defendant relied upon the following judgments: (i) Rama Avatar Soni v. Mahanta Laxmidhar Das & Others, 2018 Legal Eagle (Supreme Court) 933, paras 4, 5, 8 & 9; (ii) Rajib Barooah v. Purnimati Plantation (P) Ltd., 2018 (2) Guwahati Law Report, 204, paras 11 & 12; (iii) Shanta Devi v. Pushpa Devi & Others, 2022 Legal Eagle; (iv) Mohd. Aslam Alias Bhure v. Union of India & Others; (v) Sri Kant v. Mool Chand (deceased) & Others, 2019 (2) CAR 758 (All); (vi) Kumari Chandana Mukherji v. Additional District Judge, Special Judge, PC Act Lko & Another (Matter Under Article 227 No. 6654 of 2020); (vii) Naseeb Deen and Anr. v. Harnek Singh, AIR 2019 HP 11., Relying on the judgment in Sri Kant, the defendant submitted that local inspection or commission by the court is made only when, on the evidence led by parties, the court is unable to arrive at a just conclusion or when there is ambiguity that can be clarified by inspection. He also relied on Naseeb Deen to argue that the plaintiffs are attempting to create evidence at this stage, which is impermissible, and that appointing a commissioner before framing issues is erroneous. Further, citing the judgments in Kumari Chandana Mukherji and Rajib Barooah, he contended that applications cannot be allowed merely to facilitate one party’s case and that it is not the court’s business to discharge the evidentiary burden of either party. He argued that the onus is on the plaintiffs to prove their case with oral or documentary evidence during trial and that a commission cannot be used to create evidence. Citing Rama Avatar Soni, he submitted that if scientific investigation helps ascertain truth, it should be ordered in the interest of justice. Citing Shanta Devi, he argued that Order XXVI Rule 10A of the Code of Civil Procedure cannot be used as a tool by parties to create evidence in their favour., Counsel for the plaintiffs argued that the scientific investigation sought by the plaintiffs will not cause injury to any party and will facilitate clarification of every issue, enabling a conclusion based on the evidence on record. He submitted that the Archaeological Survey of India has the mechanism and facilities to determine the age, composition and nature of any monument, relic or artefact. He further argued that the ASI is authorized under Section 22 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 to excavate any area, other than protected areas, if it has reason to believe that the area contains ruins or relics of historical and archaeological importance. Relying on the Ayodhya case, he quoted paragraphs 679, 682 and 683, emphasizing the scientific and interpretative nature of archaeology., The plaintiff also relied upon the following judgments: (i) Sri Shadaksharappa v. Kumari Vijayalaxmi, W.P. No. 201274/2022 (Gujarat High Court) paras 9‑14; (ii) Phoolchand Asra v. Nagar Palika Nigam, Raipur, Writ Petition (227) No. 821 of 2019 (Chhattisgarh High Court) para 10; (iii) Anurag Jaiswal v. Collector, Khandwa & Others, 2018 SCC Online (Madhya Pradesh) 699 paras 7 and 12; (iv) Rajesh Kumar Gautam v. Maha Mandleshwar Vedabayasanad Geeta Ashram, 2003 SCC Online Uttarakhand 9 para 6; (v) Narasimhaiah v. Smt. Sakammanamma & Others, 2000 SCC Online Karnataka 564 paras 5 and 7; (vi) Smt. Suman Pandagre v. Madhu Pandagre, W.P. No. 110376 of 2017 (Madhya Pradesh) para 8; (vii) Filmistan Pvt. Ltd. v. Bhagwandas Santprakash, AIR 1971 SC 61., Relying on Phoolchand Asra, counsel submitted that paragraph 10 of that judgment states that in any suit where the court deems a local investigation requisite or proper for elucidating any matter in dispute, the court may issue a commission to a suitable person to make such investigation and report to the court. Relying on Smt. Suman Pandagre, which cites several cases including Maroli Achuthan, counsel submitted that the court may issue an ex parte order for a commission even before the defendant appears., During the arguments, considering the peculiar facts and seriousness of the issue, the court sought expert opinion from government agencies. Sri Alok Tripathi, Additional Director General, Archaeological Survey of India, New Delhi, appeared and, by affidavit, stated that the ASI will conduct a detailed survey in accordance with law, prepare a list of antiquities found in the building, and undertake exercises to determine the age and nature of the structure. He affirmed that the ASI will conduct survey, documentation, photography, detailed description, GPR survey and full studies without harming the existing structures. He further clarified that all work will be carried out without any damage, that investigation will be limited to open areas, and that no drilling, cutting or removal of bricks or stones from the existing structure will be undertaken. If any further excavation is required, permission of the Honourable Court will be sought., The court found no substance in the defendant’s submission that local inspection or commission is permissible only when the court cannot reach a just conclusion or when there is ambiguity. It held that the purpose of Order XXVI of the Code of Civil Procedure is to secure evidence in dispute and that the commission’s report becomes admissible evidence. Therefore, a commission may be appointed even prior to trial if required, and the court may exercise its power to elucidate disputed facts at any stage., The court also rejected the argument that it is not the business of courts to discharge the evidentiary burden of either party or that Order XXVI Rule 10A cannot be used as a tool to create evidence. It held that where a scientific investigation is necessary and cannot be conveniently conducted before the court, the court may issue a commission and that the provisions of Rule 10 apply to such a commissioner., The court held that the question of whether the suit is barred by the Places of Worship (Special Provisions) Act, 1991, is not presently before it, as no party has raised any grievance on that ground before the court below., The court found no merit in the defendant’s claim that any excavation would damage the structure and that scientific investigation can be undertaken only after the court is unable to decide the dispute. The affidavit filed by the ASI officer expressly stated that no excavation will be carried out, and the officer reiterated that no demolition or alteration of the existing structure will occur., The court held that the fact that the ASI is not a party to the suit does not preclude the court from directing it to carry out technical investigation. The parties may submit objections to the ASI report, if any, when it is produced., The court rejected the contention that the applications seeking scientific investigation are untenable because issues have not yet been framed. It observed that scientific investigation is independent of other evidence and may benefit all parties., Finally, the court noted that the petition is filed under Article 227 of the Constitution of India and that the supervisory jurisdiction of this Court is limited to ensuring that the court below has acted within legal provisions. The court held that the order impugned does not exceed jurisdiction and is not perverse. Referring to Mohd. Yunus v. Mohd. Mustaqim, AIR 1984 SC 38, the court reiterated that errors of law may be corrected only when the tribunal has exceeded its jurisdiction or acted on an erroneous presumption of jurisdiction, and that the High Court cannot assume unlimited prerogative to correct all hardships or wrong decisions. Interference requires a case of flagrant abuse of fundamental principles of law or grave injustice, as indicated in the Constitution Bench judgments of D. N. Banerji v. P. R. Mukherjee, AIR 1953 SC 58 and Nagendra Nath Bora v. Commissioner of Hills Division & Appeals, AIR 1958 SC 398.
id_888	1	For interference under Article 227 of the Constitution of India, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (Ref. Laxmikant Revchand Bhajwani v. Pratapsing Mohansing Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. v. Pravinbhai Jasbhai Patel, (1997) 7 SCC 300; Pepsi Food Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 and Virendra Kashinath v. Vinayak N. Joshi, AIR 1999 SC 162.), Once the Department of Archaeology and learned Senior Counsel representing the Department have made their stand clear that no damage is going to be caused to the property in question, this Supreme Court of India has no reason to doubt their statements and most importantly, the affidavit filed by the officer of the Archaeological Survey of India explaining the circumstances. Further, it is a settled proposition of law that issue of a Commission, at this stage, is permissible. In the opinion of the Supreme Court of India, the scientific survey/investigation proposed to be carried out by the Commission is necessary in the interest of justice and shall benefit the plaintiffs and defendants alike and come in aid of the trial court to arrive at a just decision. The law laid down and discussed above makes it clear that the trial court was justified in passing the impugned order. The present petition lacks substance and is liable to be dismissed., The petition is, accordingly, dismissed. Interim order, if any, stands vacated. The order dated 21.7.2023 passed by the District Judge, Varanasi is restored and the parties are to comply with the said order, subject to the observations made by this Supreme Court of India hereinabove and the contents of the affidavit filed on behalf of the Archaeological Survey of India before this Supreme Court of India., However, dismissal of this writ petition does not affect the right of the parties to the Suit to remain present at the time of scientific investigation to be made by the Archaeological Survey of India., As the proceeding of the Suit has been lingering on for long, it would be appropriate to observe that the Court concerned shall make all endeavour to conclude the proceedings expeditiously, without granting unnecessary adjournments to either of the parties by giving short dates, keeping in view of the provisions contained in Order XVII Rule 1 of.
id_89	0	Andreza Girish Chodankar, son of Raya Chodankar, 52 years of age, Indian National, President of Goa Pradesh Congress Committee of Indian National Congress, resident of LAROM E-1, Nilkanth Enclave Cupangale Housing Colony, Gogol, Margao, Fatorda, Goa, 403602. Petitioner versus: The Speaker, Goa Legislative Assembly, Porvorim, Goa. Shri Chandrakant Kavalekar, Member of Legislative Assembly (Quepem Constituency), Goa State Legislative Assembly, Porvorim, Goa. Shri Isidore Fernandes, Member of Legislative Assembly (Cancona Constituency), Goa State Legislative Assembly, Porvorim, Goa. Shri Nilkanth Halarnkar, Member of Legislative Assembly (Tivim Constituency), Goa State Legislative Assembly, Porvorim, Goa. Jennifer Monserrate, Member of Legislative Assembly (Taleigao Constituency), Goa State Legislative Assembly, Porvorim, Goa. Shri Antonio Fernandes, Member of Legislative Assembly (St. Cruz Constituency), Goa State Legislative Assembly, Porvorim, Goa. Shri Francisco Silveira, Member of Legislative Assembly (St. Andre Constituency), Goa State Legislative Assembly, Porvorim, Goa. Shri Wilfred D'Sa, Member of Legislative Assembly (Nuvem Constituency), Goa State Legislative Assembly, Porvorim, Goa. Shri Clafasio Dias, Member of Legislative Assembly (Cuncolim Constituency), Goa State Legislative Assembly, Porvorim, Goa. Shri Filipe Rodrigues, Member of Legislative Assembly (Velim Constituency), Goa State Legislative Assembly, Porvorim, Goa. Shri Antanasio Monserrate, Member of Legislative Assembly (Panaji Constituency), Goa State Legislative Assembly, Porvorim, Goa. Respondents: Mr Vivek Tankha, Senior Advocate with Mr Sahil Tagotra and Mr Abhijit Gosavi; Mr Ujjwal Sharma; Mr Athnain Naik; Mr Tushar Saigal; Mr Ankur Das, Advocates for the Petitioner. Mr Devidas Pangam with Mr Parikshit Sawant, Advocates for Respondent No.1. Mr Darius J Khambata, Senior Advocate with Mr Nikhil Vaze and Mr Luis Fernandes, Advocates for Respondent No.2. Mr V R Dhond, Senior Advocate with Mr Nikhil Vaze and Mr Luis Fernandes, Advocates for Respondents Nos.3, 8, 9 and 10. Mr Prasad Dhakephalkar, Senior Advocate with Mr Vibhav Amonkar, Advocate for Respondents Nos.4, 5, 6, 7 and 11. Goa Forward Party, its Vice President Durgadas Kamat, Applicant-Intervenor versus Girish Chodankar. Respondent Mr D Lawande, Advocate with Mr Jay Mathew, Mr Sanjay Sardesai and Mr Gauravvardhan Nadkarni, Advocates for the Applicant-Intervenor. Mr Vivek Tankha, Senior Advocate with Mr Sahil Tagotra and Mr Abhijit Gosavi, Mr Ujjwal Sharma, Mr Athnain Naik, Mr Tushar Saigal and Mr Ankur Das, Advocates for the Petitioner. Ramkrishna Sudin Madhav Dhavalikar, son of late Madhav Dhavlikar, aged 62 years, Indian National, Member of the Goa Legislative Assembly, residing at Mahalaxmi, Bandora, Ponda, Goa. Petitioner versus: The Honorable Speaker, Goa Legislative Assembly, Secretariat, Porvorim, Bardez, Goa. Shri Manohar Trimbak Ajgaonkar, of age, Indian National, Member of the Goa Legislative Assembly, through Goa Legislative Assembly Secretariat, Porvorim, Bardez, Goa. Shri Deepak Pauskar, of age, Indian National, Member of the Goa Legislative Assembly, through Goa Legislative Assembly Secretariat, Porvorim, Bardez, Goa. Respondents: Mr Dhaval Zaveri, Advocate for the Petitioner. Mr Devidas Pangam with Mr Parikshit Sawant, Advocates for Respondent No.1. Mr Ravi Kadam, Senior Advocate with Mr V A Lawande and Mr P Redkar, Advocates for Respondents Nos.2 and 3., Reserved on: Pronounced on: 11 February 2022, 24 February 2022. These two writ petitions challenge orders passed by the Speaker of the Goa Legislative Assembly dismissing petitions filed for disqualification of respondent Members of the Legislative Assembly. The Speaker held that the respondents did not invite disqualification, as the deeming fiction under paragraph 4(2) of the Tenth Schedule to the Constitution operated in their favour. The petitioners have, inter alia, raised the question of political morality and whether the orders passed by the Speaker are in furtherance of the object with which the Tenth Schedule was introduced in the Constitution., In the election held on 11 March 2017 for the State of Goa, the Election Commission of India declared the following tally of elected members: Indian National Congress 17, Bharatiya Janata Party (BJP) 13, Maharashtra Gomantak Party 3, Goa Forward Party 3, National Congress Party 1, Independents 3. The elected members of the BJP together with MGP, GFP and the independents formed the Government in Goa., Subsequently, one Member of the Legislative Assembly representing the Indian National Congress from the Valpoi Constituency resigned from the INC and gave up membership of the Legislative Assembly. In October 2018, two INC MLAs resigned from the assembly and joined the BJP, reducing the INC strength to 14. On 17 March 2019, the then Chief Minister of Goa passed away and a BJP MLA was appointed Chief Minister with two Deputy Chief Ministers from the Maharashtra Gomantak Party and Goa Forward Party. In the election for the seat vacated by the deceased Chief Minister, Respondent No.11 contested and won as an INC candidate, raising the INC tally to 15., On 10 July 2019, Respondents Nos.2 to 11, claiming to be two‑thirds of the INC legislative party in the assembly, decided to join the BJP and informed the Speaker. On that basis, the Speaker allotted them seats in the Assembly along with BJP members. The office of the Goa Legislative Assembly issued a bulletin dated 10 July 2019 recording that the INC Legislature Party in the Goa Assembly decided to merge with the BJP and that the ten members, Respondents Nos.2 to 11, were allotted seats with the BJP in the house., On 8 August 2019, the petitioner instituted Disqualification Petition No.3 of 2019 against Respondents Nos.2 to 11 before the Speaker on the basis of a resolution dated 24 July 2019 passed by the Goa Pradesh Congress Committee authorising the petitioner to file such a petition. The petitioner argued that the respondents deserved to be declared disqualified from holding membership of the house as they had voluntarily given up membership of their original party, the INC, thereby attracting disqualification under the Tenth Schedule to the Constitution., The Speaker issued notice and conducted a preliminary hearing on 15 October 2019. On 31 December 2019, the petitioner filed an application seeking expeditious disposal of the disqualification petition. On 13 February 2020, when the respondents sought five weeks to file replies, the Speaker granted four weeks. At this hearing, the petitioner relied upon the judgment of the Supreme Court of India in Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly, wherein the outer limit of deciding a disqualification petition was held to be three months (2020 SCC OnLine SC 55)., The petitioner, aggrieved by the slow pace, filed Writ Petition (Civil) No.525 of 2020 before the Supreme Court of India seeking a direction to the Speaker for time‑bound disposal of the disqualification petition. The Supreme Court issued notice, and the respondents entered appearance. The disqualification petition remained pending before the Speaker, who fixed its hearing for 26 February 2021 at 11.00 a.m. On 10 February 2021, the Supreme Court recorded the statement of the learned Solicitor General of India appearing for the Speaker that the disqualification petition was listed for final disposal on 26 February 2021., On 26 February 2021, when the Speaker took up the petition for hearing, the respondents filed their written statements and claimed that they could not be disqualified under the Tenth Schedule by relying upon paragraph 4(2) of the Schedule. The Speaker reserved the matter for judgment., The disqualification petition was listed on 12 March 2021 when the petitioner filed an application to produce additional documents, which was dismissed. On 5 April 2021, the Speaker passed orders on three applications: an extension of time to 24 February 2022 for respondents Nos.2 to 11 to file written statements was allowed; an application for leading evidence was dismissed; and an application for cross‑examination by respondents Nos.2 to 11 was dismissed. The Speaker informed the parties that judgment would be pronounced on 29 April 2021. On 6 April 2021, when the writ petition was listed before the Supreme Court of India, a statement was made on behalf of the Speaker that the final order would be passed on 20 April 2021. Accordingly, on 20 April 2021, the Speaker passed the impugned order dismissing the disqualification petition, holding that paragraph 4(2) of the Tenth Schedule applied because two‑thirds of the INC legislature party had decided to merge with the BJP, thereby invoking the deeming fiction and saving respondents Nos.2 to 11 from disqualification., Upon receiving a certified copy of the impugned order, on 1 June 2021 the petitioner filed the present writ petition. On 7 June 2021 the presiding judge of the Division Bench of the High Court of Bombay at Goa recused himself. Since an alternative Division Bench was not available at Goa, the petition was transferred to the Principal Seat at Bombay. After a few adjournments, when an alternative bench became available at Goa in October 2021, the petition was re‑transferred to the High Court of Bombay at Goa. The petition came up for hearing and final disposal along with the companion writ petition., The facts stated above regarding the 2017 Goa Legislative Assembly elections and the tally of elected members apply to the present petition as well., In the present petition, the petitioner, an elected MLA belonging to the Maharashtrawadi Gomantak Party (MGP), contends that respondents Nos.2 and 3 deserved disqualification under the Tenth Schedule for voluntarily giving up membership of the MGP to join the Bharatiya Janata Party (BJP). Documents show that on 20 March 2019 a meeting of MGP MLAs resolved that the MGP would merge with the BJP. Accordingly, on 26 March 2019 respondents Nos.2 and 3 sent a letter to the Speaker claiming that two‑thirds of the MGP legislature party had agreed to merge with the BJP, invoking paragraph 4(2) of the Tenth Schedule. On 27 March 2019 the Speaker accepted the communication for further steps, and an order was issued by the Secretariat of the Legislative Assembly of Goa regarding such merger, which was also published in the Official Gazette., On 3 May 2019 the petitioner, the lone remaining MGP MLA, filed Disqualification Petition No.1 of 2019 challenging the merger and praying for disqualification of respondents Nos.2 and 3 under the Tenth Schedule. On 10 May 2019 the petitioner filed another disqualification petition due to technical defects in the earlier petition. The Speaker eventually passed the impugned order in Disqualification Petition No.1 of 2019. After respondents Nos.2 and 3 filed their written statements, the matter remained pending. On 10 July 2020 the petitioner filed Writ Petition (Civil) No.667 of 2020 before the Supreme Court of India for early hearing and disposal of the disqualification petition, relying upon the Keisham Meghachandra Singh judgment. This writ petition was tagged along with Writ Petition (Civil) No.525 of 2020 filed in Writ Petition No.1228 of 2021 before the Supreme Court of India., On 26 February 2021 respondents Nos.2 and 3 filed two applications for production of documents and for cross‑examination of the petitioner and examination of fifteen witnesses, asserting that the original party MGP had decided to merge with the BJP on 20 March 2019., On 22 March 2021 the Speaker dismissed the application of respondents Nos.2 and 3 for cross‑examination and examination of other witnesses. On 5 April 2021 the Speaker allowed the application of respondents Nos.2 and 3 for production of documents on 24 February 2022 and kept the matter for final disposal on 29 April 2021. Respondents Nos.2 and 3 challenged the order dated 22 March 2021 dismissing their application; the writ petition bearing No.1033 of 2021 (F) remains pending before this Court., On 20 April 2021 the Speaker passed the impugned order dismissing the disqualification petition, holding that a deemed merger of the MGP with the BJP had occurred under paragraph 4(2) of the Tenth Schedule, and therefore respondents Nos.2 and 3 could not be disqualified. On 12 July 2021 the petitioner filed the present writ petition, wherein notice was issued for final disposal., Mr Tankha, learned Senior Counsel appearing for the petitioner in Writ Petition No.1228 of 2021, made the following submissions: (a) The Speaker erred in interpreting paragraph 4 of the Tenth Schedule by treating sub‑paragraph (1) in a disjunctive manner from sub‑paragraph (2). Paragraph 4 contemplates a ‘twin test’ for merger: the original political party must merge and two‑thirds of the legislature party must agree, ensuring the objects of the 52nd Amendment of 1985 are achieved. (b) The objects and reasons of the Constitution (Fifty‑Second Amendment) Act, 1985 were to address defections; upholding the Speaker’s order would frustrate that purpose. (c) Reference was made to Kihoto Hollohan v. Zachillhu, where the Supreme Court of India observed that unprincipled defections are a political and social evil, prompting the introduction of the Tenth Schedule. (d) The Speaker’s interpretation that the mere agreement of two‑thirds of the INC legislature party to merge with the BJP creates a deemed merger is erroneous; material showing a merger of the original party is a sine qua non before sub‑paragraph (2) can operate. (e) It is unimaginable that a national party such as the Indian National Congress could be deemed merged with the BJP solely because ten MLAs, constituting two‑thirds of its legislature party, crossed over. (f) The learned Senior Counsel relied upon the Full Bench judgment in Shah Faruq Shabir & Ors. v. Govindrao Ramu Vasave & Ors., which held that the ‘twin test’ must be satisfied for a merger to be deemed, and that the present order should be set aside. (g) If sub‑paragraph (2) were to override sub‑paragraph (1), the requirement of a merger of the original party would become meaningless. The judgments of Baljit Singh Bhullar v. Speaker, Punjab Vidhan Sabha and Speaker, Nagaland Legislative Assembly v. Imtilemba Sangtam & Ors. were cited as contrary to the correct position. The Supreme Court of India judgments in Ravi S Naik v. Union of India & Ors., Jagjit Singh v. State of Haryana & Ors., and Rajendra Singh Rana & Ors. v. Swami Prasad Maurya & Ors. were also relied upon to argue that respondents Nos.2 to 11 should be disqualified., Mr Zaveri, learned counsel for the petitioner in Writ Petition No.1530 of 2021‑F, submitted that (a) the aims and objects of the Tenth Schedule are to curb defections; (b) the Supreme Court of India in Kihoto Hollohan emphasized that unprincipled defections are a social evil; (c) the recent Supreme Court of India judgment in Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly requires a wide interpretation of the Tenth Schedule to cure the evil of defections; (d) the Speaker must uphold the high traditions of his office as emphasized in Mahachandra Prasad Singh v. Chairman, Bihar Legislative Assembly, and the burden of proving a merger lies on the respondents, not the petitioner., Mr D Pangam, learned counsel for the Speaker, submitted that (a) the ‘twin test’ as read by the petitioners is misplaced and the Speaker was justified in dismissing the disqualification petitions; (b) paragraph 3 of the erstwhile Tenth Schedule dealing with splits is distinct from paragraph 4 dealing with mergers, and only paragraph 4 contains a deemed fiction; (c) paragraph 4 is an exception to disqualification under paragraph 2, as paragraph 2(1) opens with ‘subject to the provisions of paragraphs 4 and 5’; (d) under the erstwhile paragraph 3 a factual split was required, whereas sub‑paragraph (2) of paragraph 4 provides a deemed fiction whereby even without a factual merger, a merger is deemed if two‑thirds of the legislature party agree.
id_89	1	It was further submitted that the theory propounded on behalf of the Petitioners as regards the twin requirement in paragraph 4 of the Tenth Schedule was wholly unworkable. It was submitted that if merger of the original political party contemplated under sub‑paragraph (1) of paragraph 4 could be said to be complete only if two‑thirds members of the legislature party concerned agree to such a merger under sub‑paragraph (2), it would result in an incongruous situation. It was submitted that if there was factual merger of two National Parties at the national level, such merger would be frustrated if only two‑thirds members of the legislature party of even one legislature in the country would not agree with such a merger. On this basis, it was submitted that the interpretation canvassed on 24 February 2022 on behalf of the Petitioners is illogical and unworkable., It was further submitted that while much emphasis was placed by the learned counsel appearing for the Petitioner on the Full Bench Judgment of the Supreme Court of India in the case of Shah Faruq Shabir and Others versus Govindrao Ramu Vasave and Others (supra), the same was never placed before Respondent No.1 – Speaker when the disqualification petitions were argued. On this basis, it was submitted that the Petitioners were not justified in claiming that the impugned orders passed by Respondent No.1 – Speaker were erroneous. It was further submitted that the Full Bench Judgment stood impliedly overruled by the recent judgment of the Supreme Court of India in the case of Shrimanth Balasaheb Patil versus Speaker, Karnataka Legislative Assembly (supra). In this regard, reliance was placed on paragraphs 183 to 189 of the said judgment., As regards alleged delay on the part of Respondent No.1 in deciding the disqualification petitions, it was submitted that the House could not meet for long durations due to the Covid‑19 pandemic and, therefore, it could not be said that Respondent No.1 had deliberately delayed decision on the disqualification petitions., Mister Khambata, learned Senior Counsel appearing for Respondent No.2 in Writ Petition No. 1228 of 2021, submitted as follows: In the face of undisputed facts, in the present case, by operation of the deeming fiction under paragraph 4(2) of the Tenth Schedule to the Constitution, Respondent No.2 was clearly saved from disqualification. The learned Senior Counsel emphasized the admitted position that ten out of fifteen Members of Legislative Assembly of the Indian National Congress, i.e. Respondents Nos. 2 to 11 in the petition, comprising two‑thirds of the legislature party, had agreed to merge with the Bharatiya Janata Party. Consequently, the deeming fiction under paragraph 4(2) of the aforesaid Schedule came into operation, thereby protecting the said Respondents from disqualification., The learned Senior Counsel submitted that sub‑paragraph (1) and (2) of paragraph 4 of the said Schedule operated in different fields and since a deeming fiction came into operation under sub‑paragraph (2), even if there was no factual merger of the original political party, it had to be assumed that such a merger had taken place., It was further submitted that the opening words of sub‑paragraph (2) of paragraph 4 of the said Schedule, i.e. “For the purpose of sub‑paragraph (1) of this paragraph”, are significant for the reason that the purpose of sub‑paragraph (1) is to protect a member of the House from disqualification, and not to lay down provisions for merger of the original political party. It was submitted that when the purpose of sub‑paragraph (1) was to provide for protection of a member from disqualification, despite voluntarily giving up membership of the original political party, the deeming fiction under sub‑paragraph (2) would operate for affording such protection, if and only if not less than two‑thirds of the members of the legislature party concerned agreed for merger. On this basis, it was submitted that Respondent No.1 had correctly applied the deeming fiction under sub‑paragraph (2) of paragraph 4 of the said Schedule to hold that the disqualification petition deserved to be dismissed., It was emphasized by the learned Senior Counsel, by referring to the judgment of the Supreme Court of India in the case of M. Venugopal versus Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and others, that under a deeming fiction, an imaginary state of affairs is to be treated as real. Accordingly, under sub‑paragraph (2) of paragraph 4 of the said Schedule, even if there is no merger of the original political party, it has to be deemed or assumed that such a merger has taken place, the consequence of which would be that the protection contemplated under paragraph 4(1)(a)(b) of the said Schedule would come into operation. The learned Senior Counsel relied upon the Full Bench Judgment of the Punjab and Haryana High Court in the case of Baljit Singh Bhullar versus Speaker, Punjab Vidhan Sabha (supra) and the Division Bench Judgment of the Gauhati High Court in the case of Speaker, Nagaland Legislative Assembly versus Imtilemba Sangtam and Others (supra), to support the aforesaid interpretation placed on paragraph 4 of the said Schedule., In the context of the contention regarding political and constitutional morality raised on behalf of the Petitioner, by placing reliance on the judgment in the case of Kihoto Hollohan versus Zachillhu (supra), the learned Senior Counsel relied upon paragraphs 49 to 51 thereof to contend that it was for the Legislature to assess the extent of standards of political proprieties and morality. It was emphasized that Parliament itself, in its wisdom, had drawn a line under sub‑paragraph (2) of paragraph 4 of the Tenth Schedule that when two‑thirds members of the legislature party agree for a merger, it had to be deemed that such a merger had occurred, thereby affording protection to the members from disqualification. It was submitted that as per the Supreme Court of India in the 24 February 2022 judgment of Kihoto Hollohan versus Zachillhu (supra), in such a situation, there was a presumption of bona‑fides on the part of such elected members., It was submitted that if the interpretation canvassed by the Petitioners was to be accepted, sub‑paragraph (2) of paragraph 4 would be rendered otiose. The submission made on behalf of Respondent No.1 about the unworkable nature of the interpretation regarding “twin test” in paragraph 4 of the said Schedule was reiterated and emphasized on behalf of Respondent No.2 also., The learned Senior Counsel submitted that the Full Bench of the Supreme Court of India in the case of Shah Faruq Shabir and Others versus Govindrao Ramu Vasave and Others (supra) was not concerned with the interpretation of the deeming fiction specified in sub‑paragraph (2) of paragraph 4 of the said Schedule. Attention of the Supreme Court of India was invited to the two questions referred to the Full Bench, none of which concerned interpretation and applicability of the said deeming fiction. The learned Senior Counsel emphasized the facts of the case in which the Full Bench had rendered its opinion, seeking to distinguish the same from the facts of the case before this Court. It was submitted that the observations made by the Full Bench of the Supreme Court of India, in respect of the provisions of the Anti‑Defection Act of 1986, pari materia to sub‑paragraph (2) of paragraph 4 of the said Schedule, were not even obiter dicta, much less the ratio decidendi of the said Full Bench judgment., The learned Senior Counsel submitted that the recent judgment of the Supreme Court of India in the case of Shrimanth Balasaheb Patil versus Speaker, Karnataka Legislative Assembly (supra), impliedly overruled the aforesaid judgment of this Court in the case of Shah Faruq Shabir and Others versus Govindrao Ramu Vasave and Others (supra). By referring to the facts of the lone member of the Assembly of a political party in respect of whom the Supreme Court had considered the said aspect of merger, it was submitted that the deeming fiction given full emphasis and operation in the impugned order passed by Respondent No.1 – Speaker was accepted as the correct interpretation of paragraph 4 of the said Schedule in the recent judgment of the Supreme Court of India., Mister Ravi Kadam, learned Senior Counsel appearing for Respondents Nos. 2 and 3 in Writ Petition No. 1530 of 2021, supported the contentions raised by Mister Khambata, learned Senior Counsel, who appeared for Respondent No.2 in Writ Petition No. 1228 of 2021. He highlighted the factual difference between the two writ petitions, stating that the aforesaid Respondents in Writ Petition No. 1530 of 2021 had, in fact, sought to lead evidence to show merger of the original political party itself. There was material available with the said Respondents to support the assertion. Respondent No.1 – Speaker had rejected the attempt on the part of the said Respondents to lead evidence on the basis of a specific objection raised on behalf of the Petitioner. It was submitted that a perusal of the impugned order passed by Respondent No.1 – Speaker would show that the Petitioner himself had stridently opposed leading of evidence on the said aspect of the matter, even when such material was indeed available with the said Respondents., The learned Senior Counsel further submitted that sub‑paragraphs (1) and (2) of paragraph 4 of the Schedule to the Constitution were disjunctive and operated in distinct fields. Paragraph 4 was sought to be distinguished from the erstwhile paragraph 3 of the said Schedule, wherein conjunctive language was used and it was clear that split of a political party was a different concept as compared to merger. It was further submitted that sub‑paragraph (2) of paragraph 4 of the Schedule was neither a rider nor an additional condition to sub‑paragraph (1)., The learned Senior Counsel relied upon the judgment of the Supreme Court of India in the case of Mahadeolal Kanodia versus Administrator General West Bengal, which deals with what could be said to be a substantive proximate. By applying the said concept to the use of the word “merger” towards the end of sub‑paragraph (2) of paragraph 4 of the Schedule, it was emphasized that it was substantively proximate to the words in the said sub‑paragraph pertaining to the deemed merger of the political party., The learned Senior Counsel then invited the attention of the Supreme Court of India to the parliamentary debates pertaining to the Fifty‑second Amendment to the Constitution, whereby the Tenth Schedule was introduced. It was submitted that a perusal of the same would show that the members of the House were aware about the manner in which the language of paragraph 4 of the Schedule pertaining to merger would be interpreted. Yet, it was submitted that Parliament chose to continue with the same language, which clearly indicates that sub‑paragraph (2) is distinct and operates in a separate field as compared to sub‑paragraph (1) of paragraph 4 of the Schedule. In order to support the contention that debates of the House could be placed before the Court while interpreting a constitutional provision, the learned Senior Counsel relied upon the judgments of the Supreme Court of India in the case of Fagu Shaw versus State of West Bengal and S. R. Chaudhari versus State of Punjab. According to the learned Senior Counsel, it was necessary to elucidate the purpose for which the constitutional provision was brought into existence., The learned Senior Counsel then referred to paragraphs 50 to 52 of the judgment of the Supreme Court of India in the case of Kihoto Hollohan versus Zachillhu (supra), emphasizing that Parliament in its wisdom had thought it fit to provide that there shall be deemed merger of the original political party if not less than two‑thirds members of the legislature party agreed to the merger. According to the learned Senior Counsel, the threshold of constitutional morality was fixed in terms of paragraph 4(2) of the aforesaid Schedule and that the arguments made on behalf of the Petitioners regarding political and constitutional morality or the object for which the Tenth Schedule was introduced in the Constitution could be of no avail., As regards the Full Bench judgment of the Supreme Court of India in the case of Shah Faruq Shabir and Others versus Govindrao Ramu Vasave and Others (supra), the learned Senior Counsel invited attention to paragraphs 2 to 6 and 75 of the Full Bench judgment to emphasize that the questions for consideration before the Full Bench had nothing to do with paragraph 4(2) of the Schedule, which concerned the concept of deeming fiction in the context of merger of a political party., Mister Dhakephalkar, learned Senior Counsel appearing for Respondents Nos. 4 to 7 and 11 in Writ Petition No. 1228 of 2021, supported the above‑mentioned contentions raised on behalf of the other Respondents and added that a perusal of paragraph 4(2) of the Schedule to the Constitution would show that the Speaker has control over only the legislature party and cannot have any control over political parties. In this context, it was submitted that the Speaker was only concerned with the applicability of the deemed fiction in paragraph 4(2) to the Schedule, provided not less than two‑thirds members of a legislature party agreed to the merger, which would then protect the elected members from disqualification. It was emphasized that only the Speaker could decide whether the deeming fiction would operate in a particular factual scenario or not., The learned Senior Counsel reiterated that the concept of split of a political party was distinct from its merger. He emphasized the words “if and only if” to focus on the manner in which the deeming fiction would operate under paragraph 4(2) of the Schedule., The learned Senior Counsel invited the attention of the Supreme Court of India to the 170th Report of the Law Commission of India to contend that it was specifically observed therein that the Tenth Schedule to the Constitution governs only membership of the House and splits and mergers among the members of the political party in the House and further that it does not purport to govern or regulate the political process outside the House. On this basis, it was submitted that sub‑paragraphs (1) and (2) of paragraph 4 of the Schedule operated in distinct fields., Mister Dhond, learned Senior Counsel appearing for Respondents Nos. 3, 8, 9 and 10 in Writ Petition No. 1228 of 2021, submitted as follows: The position of law laid down in the judgment of the Full Bench of the Punjab and Haryana High Court in the case of Baljit Singh Bhullar versus Speaker, Punjab Vidhan Sabha (supra) and the Division Bench judgment of the Gauhati High Court in the case of Speaker, Nagaland Legislative Assembly versus Imtilemba Sangtam and Others (supra), was the correct position of law as regards interpretation of paragraph 4(2) of the Schedule. As regards the Full Bench judgment of the Supreme Court of India in the case of Shah Faruq Shabir and Others versus Govindrao Ramu Vasave and Others (supra), the learned Senior Counsel submitted that a perusal of the questions referred to the Full Bench would indicate that the questions regarding deeming fiction under Section 5(2) of the Anti‑Defection Act of 1986, which is pari materia with paragraph 4(2) of the Schedule, did not arise for consideration at all. The Full Bench of the Supreme Court of India was concerned with a post‑poll situation and there was no argument on deeming fiction under Section 5(2) of the Anti‑Defection Act of 1986. It was further emphasized that the reference in the Full Bench judgment of the Supreme Court of India to the judgment of the Supreme Court in the case of Mayavati versus Markandeya Chand and Others was wholly misplaced because in the said judgment of the Supreme Court, there were two different opinions expressed by the Honorable Judges and ultimately the matter was referred to a larger bench. The learned Senior Counsel referred to various paragraphs of the aforesaid Full Bench judgment and submitted that the observations made in paragraph 36 of the judgment, upon which the Petitioners had placed much emphasis, were not referable to the questions being considered by the Full Bench. It was further submitted that the observations made in paragraph 36 were based on an assumption that split of a political party is the same as merger, which is not the position in law at all and it did not even fall for consideration of the Full Bench. It was further submitted that the concept of deeming fiction was not even noticed by the Full Bench, because that was not an issue in the matter. It was further submitted that the said observations made by the Full Bench cannot be said to be findings or ratio which would be binding on this Court. As an alternative and in the worst‑case scenario, the learned Senior Counsel submitted that this Court could consider placing the papers before the Honorable Chief Justice, for being placed before a larger bench in terms of the relevant Rules., Mister Lawande, learned counsel appearing for the intervenor in Writ Petition No. 1228 of 2021, supported the contentions raised on behalf of the Respondents. He emphasized that paragraph 4 of the Schedule concerned protection of a member of a House from disqualification and not merger of political parties., Mister Tankha, the learned Senior Counsel appearing for the Petitioner in Writ Petition No. 1228 of 2021, made brief submissions in rejoinder, emphasizing the objects and reasons for introduction of the Tenth Schedule in the Constitution. He invited the attention of the Supreme Court of India to paragraph 2(2) of the Schedule to state that an independent candidate would stand disqualified, but if the contentions of the Respondents were to be accepted, two‑thirds members of the legislature party would be saved from disqualification under paragraph 4(2) of the Schedule, which was incongruous and unacceptable. It was also emphasized that under paragraph 2(3) of the Schedule, what applied to an independent candidate also applied to a nominated candidate, thereby highlighting the incongruity of the submissions made by the learned counsel for the respondents. As regards the alleged unworkability of the twin test in respect of paragraph 4 of the Schedule, it was submitted that the same was clearly workable because when members of the legislature party chose not to merge despite a merger of the original political party under paragraph 4(1) of the Schedule, they would form a separate group., It was contended that the contentions raised on behalf of the Petitioner could have been accepted in the context of paragraph 4(2) of the Schedule if sub‑paragraph (2) had opened with the words “Notwithstanding anything in sub‑paragraph (1)”, instead of the words “For the purposes of sub‑paragraph (1)”., It was submitted that the Full Bench judgment of the Punjab and Haryana High Court in the case of Baljit Singh Bhullar versus Speaker, Punjab Vidhan Sabha (supra) relied upon by the learned counsel appearing for the Respondents was based on an erroneous interpretation of paragraph 4 of the Schedule. It was submitted that surprisingly, the very same Bench on the same day pronounced judgment in the case of Ram Bilas Sharma versus Speaker, Haryana Vidhan Sabha holding the position of law to the contrary. On the aspect of reliance placed by the Petitioner on the judgment of the Supreme Court of India in the case of Shrimanth Balasaheb Patil versus Speaker, Karnataka Legislative Assembly (supra), it was submitted that if the facts were properly appreciated, the observations of the Supreme Court supported the contentions raised on behalf of the Petitioner, as there was merger of the original political party in that case., The learned Senior Counsel emphasized that the ratio of the Full Bench of the Supreme Court of India in the case of Shah Faruq Shabir and Others versus Govindrao Ramu Vasave and Others (supra) was binding on this Court and that the writ petitions deserved to be allowed., Mister D. Zaveri, learned counsel appearing for the Petitioner in Writ Petition No. 1530 of 2021, also made submissions in rejoinder, in the same manner as submissions were made for the Petitioner in Writ Petition No. 1228 of 2021., The following questions were posed: (1) What is the true scope and purport of paragraph 4 of the Tenth Schedule to the Constitution and whether sub‑paragraphs (1) and (2) thereof operate in distinct and independent fields and whether there is a “twin test” contemplated under the said paragraph for merger of a political party to afford protection from disqualification of a member of a House? (2) Whether sub‑paragraphs (1) and (2) of paragraph 4 of the Tenth Schedule to the Constitution are disjunctive, wherein sub‑paragraph (1) is a complete code in itself and sub‑paragraph (2) concerns only a deeming fiction? (3) Whether the concept of split of a political party contemplated under paragraph 3 (now deleted) of the Tenth Schedule to the Constitution is the same as the concept of merger of a political party under paragraph 4 of the Schedule? (4) Whether the Full Bench judgment of the Supreme Court of India in the case of Shah Faruq Shabir and Others versus Govindrao Ramu Vasave and Others (supra) is a binding precedent for interpretation of paragraph 4(2) of the Tenth Schedule to the Constitution? (5) Whether the judgment of the Supreme Court of India in the case of Shrimanth Balasaheb Patil versus Speaker, Karnataka Legislative Assembly (supra) impliedly overrules the Full Bench judgment of the Supreme Court of India in the case of Shah Faruq Shabir and Others versus Govindrao Ramu Vasave and Others (supra) and whether it effectively supports the case of the Respondents? (6) Whether the Full Bench judgment of the Punjab and Haryana High Court in the case of Baljit Singh Bhullar versus Speaker, Punjab Vidhan Sabha (supra) and the Division Bench judgment of the Gauhati High Court in the case of Speaker, Nagaland Legislative Assembly versus Imtilemba Sangtam and Others (supra) lay down the correct position of law as regards paragraph 4(2) of the Tenth Schedule to the Constitution? (7) Whether the Petitioners are justified in contending that if the interpretation canvassed on behalf of the Respondents concerning paragraph 4(2) of the Tenth Schedule to the Constitution is accepted, it would militate against the object for which the Tenth Schedule was introduced in the Constitution, thereby encouraging defections, ignoring the political and constitutional morality sought to be encouraged by the very introduction of the said Schedule? (8) Whether the impugned orders passed by Respondent No.1 – Speaker deserve interference?, In re: Questions 1 and 2: Before proceeding to consider the aforesaid questions, it would be pertinent to consider the scope of judicial review of orders and decisions of the Speaker under writ jurisdiction. In the case of Kihoto Hollohan versus Zachillhu (supra), the Supreme Court of India has laid down that the scope of such judicial review would be confined to jurisdictional errors only, pertaining to infirmities based on violation of constitutional mandate, malafides, non‑compliance of rules of natural justice and perversity. In the present case, considering the nature of contentions raised on behalf of the Petitioners, it is found that judicial review of the impugned orders passed by Respondent No.1 – Speaker in these two petitions is sought on alleged violation of the constitutional mandate and perversity. Keeping the limited scope of judicial review in mind, while examining the correctness of the impugned orders passed by the Speaker, we proceed to consider the aforesaid questions.
id_89	2	Explanation (a) to paragraph 2(1) of the said Schedule specifically states that an elected Member of a House shall be deemed to belong to the political party which sets him up as a candidate for election. Therefore, when a candidate contests 24 February 2022 election on the ticket of a political party and gets elected as a Member of a House, under the aforesaid explanation, he is deemed to be belonging to that political party., Under paragraph 4 of the said Schedule, an exception to disqualification under paragraph 2 is carved out in the context of merger of the original political party to which an elected member is deemed to belong. Sub‑paragraph (1) of paragraph 4 of the said Schedule starts with the words A member of a House shall not be disqualified under sub‑paragraph (1) of paragraph 2. These opening words are of immense significance, because they point towards the exception to paragraph 2(1) of the said Schedule being carved out to protect a member of a House from disqualification., Sub‑paragraph (1) of paragraph 4 of the said Schedule provides that when the original political party of a member of a House, meaning thereby that the political party that had set him up as a candidate for the election, merges with another political party, such a member will not be disqualified under sub‑paragraph (1) of paragraph (2) of the said Schedule, if he becomes member of such other political party or of a new political party formed by such merger or having not accepted the merger, he opts to function along with the other like‑minded members as a separate group. It is further laid down in the said provision that after such merger, for the purpose of sub‑paragraph (1) of paragraph 2, such an elected member would be deemed to be belonging to the political party into which his original political party has merged or the new political party that may be formed by such merger. If the elected member disagrees with the merger and sits separately either himself or with other like‑minded members who have chosen to disagree with the 24 February 2022 merger, the separate group so formed shall be deemed to be the political party of such member or members for the purpose of sub‑paragraph (1) of paragraph 2., In simple words, upon the merger of the original political party of the elected member with another political party, the elected member will not face disqualification in either contingency i.e. whether he chooses to go with the merger or disagrees with the same. But, sub‑paragraph (2) of paragraph 4 of the said Schedule speaks of a deemed merger of the original political party to which an elected member of the House belongs, if and only if, not less than two‑thirds members of the legislature party agree to such merger. It is crucial that sub‑paragraph (2) of paragraph 4 specifically refers to legislature party and that this expression is not contained in sub‑paragraph (1) of paragraph 4 of the said Schedule., It is equally significant that sub‑paragraph (2) of paragraph 4 of the said Schedule opens with the words For the purposes of sub‑paragraph (1) of this paragraph. It is necessary to examine as to what can be said to be the purpose of sub‑paragraph (1) of paragraph 4. As noted above, the opening words of sub‑paragraph (1) of paragraph 4 provide that a member of a House shall not be disqualified under sub‑paragraph (1) of paragraph 2, thereby indicating that the said sub‑paragraph (1) of paragraph 4 of the said Schedule aims at carving out an exception to disqualification of the elected member under sub‑paragraph (1) of paragraph 2, when the member voluntarily gives up his membership of the political party to which he belongs. The purpose is to ensure protection from disqualification of the member of the House in respect of which 24 February 2022 specific contingency is spelt out in sub‑paragraph (1) of paragraph 4. The said contingency pertains to merger of the original political party with another political party. Such merger pertains to factual merger of such political party, which is an event necessarily outside the House. It is left open under the said provision for a member of the House to agree or disagree with such merger and it is in this context that sub‑paragraph (1) of paragraph 4 of the said Schedule contains clauses (a) and (b)., A perusal of sub‑paragraph (2) of paragraph 4 of the said Schedule shows that a specific deeming fiction is provided in the context of merger of the original political party of a member of a House for the purpose of sub‑paragraph (1) of paragraph 4. When the purpose of sub‑paragraph (1) of paragraph 4 is to carve out an exception to disqualification of a member of a House under sub‑paragraph (1) of paragraph 2 of the said Schedule, then the deeming fiction has to be examined on the touchstone of the said purpose. It is specifically provided in sub‑paragraph (2) of paragraph 4 that merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two thirds of the members of the legislature party concerned have agreed to such merger. It is clear from the said wordings that the deeming fiction comes into operation on the stringent condition that not less than two thirds members of the legislature party agree to such merger. This clearly indicates that sub‑paragraph (2) of paragraph 4 of the said Schedule operates in a field distinct and independent of sub‑paragraph (1) of paragraph 4. This distinct and independent field contemplates a situation where there is no merger of the original political party and yet, it has to be deemed that such merger has taken place, if and only if, not less than two thirds of the 24 February 2022 members of the legislature party agree to such a merger. Once the said condition is satisfied, the deeming fiction operates under sub‑paragraph (2) of paragraph 4 of the said Schedule for the purpose of sub‑paragraph (1) thereof, which is protecting the member of a House from disqualification under sub‑paragraph (1) of paragraph., Reading paragraph 4 in its entirety, it becomes clear that the contention raised on behalf of the Respondents that sub‑paragraphs (1) and (2) are disjunctive in nature, is correct and it is based on proper interpretation of the said provision. A bare reading of sub‑paragraph (1) of paragraph 4 shows that it is indeed a complete code in itself, providing for protecting from disqualification of members of the House in case of merger of the original political party with another political party, whether they go with such merger or disagree with the same. Sub‑paragraph (1) of paragraph 4 and sub‑paragraph (2) thereof operate in distinct fields. Sub‑paragraph (2) of paragraph 4 of the said Schedule, by its very language, cannot be said to be in addition to or being an additional condition for operation of sub‑paragraph (1) of paragraph 4., In fact, sub‑paragraph (2) of paragraph 4 comes into operation to protect a member of a House from disqualification when only the members of the legislature party, being not less than two thirds in number, agree amongst themselves for merger of the political party. The need for providing a deeming fiction in sub‑paragraph (2) of paragraph 4 of the said Schedule clearly indicates that it cannot be an additional condition to sub‑paragraph (1) of paragraph 4. If any other interpretation is placed upon paragraph 4 24 February 2022 in its entirety, the existence of sub‑paragraph (2) of paragraph 4 of the said Schedule would appear to be meaningless., The learned Senior Counsel appearing for the Respondents are justified in relying upon the judgment of the Supreme Court of India in the case of M. Venugopal versus Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and another, wherein the dictum laid down in the case of East End Dwellings Co. Ltd. versus Finsbury Borough Council has been accepted and followed. In the context of deeming fiction, the Supreme Court of India in the said judgment has recognized and emphasized the position of law that when there is a deeming fiction incorporated in a provision, the Court has to proceed by treating an imaginary state of affairs as real and then also imagining as real the consequences that would inevitably flow on the basis that the state of affairs imagined in fact exist. In the present case, as per sub‑paragraph (2) of paragraph 4 of the said Schedule, the deeming fiction comes into operation the moment not less than two thirds members of the legislature party agree for merger and the moment such deeming fiction operates, the Court has to proceed on the basis that in fact there has been a merger of the original political party, as a result of which, the real consequences must inevitably follow. Once such deeming fiction comes into operation, the real consequences specifically spelt out in sub‑paragraph (1) of paragraph 4 of the said Schedule, particularly elaborated in clauses (a) and (b) thereof, must follow. It is correct that once the deeming fiction comes into operation, even when there is, in fact, no merger of the original political party, we have to proceed on the basis that such merger has taken place by operation 24 February 2022 of the deeming fiction, so long as not less than two thirds members of the legislature party agree to such a merger., In this context, the contention raised on behalf of the Respondents pertaining to the concept of substantive proximate becomes relevant. The reliance placed on the judgment of the Supreme Court of India in the case of Mahadeolal Kanodia versus Administrator General West Bengal is justified, where rules of grammar were applied to a specific provision to elaborate the concept of substantive proximate and the manner in which a particular provision is to be read and interpreted. Applying the said concept to sub‑paragraph (2) of paragraph 4 of the said Schedule, the words have agreed to such merger are substantively proximate to the words deemed to have taken place, indicating that such merger of the political party refers to deemed merger in sub‑paragraph (2) of paragraph 4 and not merger of the original political party as specified and contemplated under sub‑paragraph (1) of paragraph 4 of the said Schedule., Viewed from this angle, it becomes clear that the Petitioners are not justified in contending that sub‑paragraphs (1) and (2) of paragraph 4 of the said Schedule are interlinked, interdependent and the necessity of not less than two thirds members of the legislature party agreeing to the merger is an additional condition for merger of the original political party under sub‑paragraph (1) of paragraph 4. As noted above, sub‑paragraph (1) of paragraph 4 addresses the fall out of merger of a political party on members of the House, whether they agree or disagree with the same. The same is clearly disjunctive from the specific situation of deemed merger 24 February 2022 contemplated under sub‑paragraph (2) of paragraph 4. Moreover, the Speaker under sub‑paragraph (2) of paragraph 4 of the said Schedule can decide only about the legislature party and whether two thirds members of the legislature party have agreed for merger., The learned Counsel appearing for the Respondents are also justified in highlighting the unworkable nature of paragraph 4 of the said Schedule, if the contentions raised on behalf of the Petitioners are accepted. It is correctly pointed out that merger of an original political party, which is a National Party with another political party which is also a National Party, would not take place, even if factually both political parties have agreed for a merger, only because not less than two thirds members of legislature party of such political parties in even one legislature in the entire Country have not agreed for such merger. The contention raised on behalf of the Petitioners that this does not indicate unworkable nature of paragraph 4, by stating that such members of the legislature party would sit as a separate group, cannot be accepted because it would render sub‑paragraph (2) of paragraph 4 completely otiose. In fact, if such an interpretation is accepted, there would have been no need for the Parliament to have incorporated sub‑paragraph (2) in paragraph 4 of the Tenth Schedule to the Constitution. The interpretation sought to be placed on paragraph 4 of the said Schedule on behalf of the Petitioners by emphasizing on the twin test for merger of the original political party with another political party, proceeds on the fallacious basis that the purpose of paragraph 4 of the said Schedule is concerned only with merger of political parties. As noted above, the purpose of paragraph 4 of the said Schedule is to protect a member of the House from disqualification, 24 February 2022 which otherwise he would have suffered under sub‑paragraph (1) of paragraph 2 because of having voluntarily given up membership of his original political party. When the purpose of sub‑paragraph (1) of paragraph 4 of the said Schedule is understood in the correct perspective, it becomes clear that the sub‑paragraph (2) thereof addresses a distinct situation, when a member of a House is protected from disqualification in a situation where there is no merger of the original political party with another political party, but two thirds or more members of the legislature party agree for merger, thereby bringing into operation the deeming fiction, which in turn triggers the protection from disqualification available to members under clauses (a) and (b) of sub‑paragraph (1) of paragraph 4 of the said Schedule., The learned Senior Counsel appearing for Respondent numbers 2 and 3 in Writ Petition number 1530 of 2021, is justified in relying upon judgments of the Supreme Court of India in the cases of Fagu Shaw versus State of West Bengal and S. R. Chaudhari versus State of Punjab to highlight that even debates in the Parliament show that sub‑paragraph (2) of paragraph 4 of the said Schedule operates in a distinct field. The debates are external aids in understanding the true purport of paragraph 4 of the said Schedule. The Full Bench of the Punjab and Haryana High Court in the case of Baljit Singh Bhullar versus Speaker, Punjab Vidhan Sabha and Division Bench judgment of the Gauhati High Court in the case of Speaker Nagaland Legislative Assembly versus Imtilemba Sangtam and others, have also proceeded on the aforesaid basis., A contention was also raised on behalf of the Petitioners that if the interpretation placed on paragraph 4 of the Tenth Schedule to the Constitution by the Respondents is upheld, it would create an anomalous situation in the context of an independent member or a nominated member of a House under paragraph 2(2) and 2(3) of the aforesaid Schedule. The short answer to the said contention is that under the scheme of the aforesaid Schedule to the Constitution, in so far as an independent and nominated member are concerned, the question pertaining to merger of the original political party under paragraph 4 of the said Schedule would not arise for consideration at all. Therefore, the said contention raised on behalf of the Petitioners cannot be accepted., Hence, question 1 is answered by holding that sub‑paragraphs (1) and (2) of paragraph 4 of the Tenth Schedule operate in distinct and independent fields and that the twin test for merger of the original political party canvassed on behalf of the Petitioners cannot be accepted. Question 2 is answered by holding that sub‑paragraphs (1) and (2) of paragraph 4 of the Tenth Schedule are disjunctive and sub‑paragraph (2) addresses a situation where the deeming fiction as contemplated therein comes into operation., In Re: Question 3: The said question has come up for consideration because of the emphasis placed on behalf of the Petitioners on paragraph 3 of the Tenth Schedule, pertaining to split of a political party, which stood omitted with effect from 01.01.2004 in pursuance of the Constitution (Ninety‑first Amendment) Act, 2003. According to the Petitioners, what applied to interpretation of paragraph 3 of the said Schedule, which now stands deleted, equally applies to paragraph 4 of the said Schedule, which refers to merger of parties. It is contended that the position of law as laid down by the Supreme Court of India and this Court, while considering the question of disqualification of a member of a House in a situation of split of the political party, applies with equal force when the concept of merger is examined under paragraph 4 to the Tenth Schedule. In other words, simply stated, according to the Petitioners, what applies to split, equally applies to merger of a political party. To analyse the said contention raised on behalf of the Petitioners, it would be appropriate to quote paragraph 3 of the said Schedule, which stood omitted with effect from 01.01.2004. The same reads as follows: Paragraph 3 omitted by Constitution (Ninety‑first Amendment) Act, 2003, Section 5(c). Prior to omission it read as: 3. Disqualification on ground of defection not to apply in case of split. Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one third of the members of such legislature party, (a) he shall not be disqualified under sub‑paragraph (1) of paragraph 2 on the ground (i) that he has voluntarily given up his membership of his original political party; or (ii) that he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and (b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub‑paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph., We have examined the contents of the above quoted paragraph 3 of the said Schedule in juxtaposition to paragraph 4 of the said Schedule quoted herein above. A bare perusal of the two provisions would show that under paragraph 3, as it existed, a member of a House would not be disqualified where such a member and any other members of the legislature party constituted a group which had arisen as a result of the split of the original political party and such group consisted of not less than one third members of such legislature party. It is significant that paragraph 3 referred to split in the original political party and a member of the House and any other members of legislature party consisting of not less than one third thereof had become a faction or group which had split from the original political party. Clause (b) of paragraph 3 provided that from the time of such split, the faction was deemed to be a political party to which the member or members belonged for the purposes of sub‑paragraph (1) of paragraph 2 and it was to be treated as his/their original political party. Thus, what was deemed under clause (b) was that upon such a split, the faction would be deemed to be a political party to which the member would belong. In paragraph 3 as it existed in the Schedule, there was no deeming fiction regarding split of the original political party. It is in the context of the specific words used in the paragraph that the Courts have interpreted it to mean that there has to be a split in the original political party and at least one third members of the legislature party form a faction, which would then be deemed to be the political party to which the member(s) belonged. It is in such a situation, that the necessity of the factual split in the original political party was contemplated., As opposed to this, a perusal to the above‑quoted paragraph 4 of the said Schedule, particularly sub‑paragraph (2) thereof, shows that when at least two thirds members of the legislature party agree for merger, it is deemed that merger of the original political party has taken place. The distinction between paragraphs 3 and 4 of the said Schedule becomes clear on a bare reading of the two paragraphs and hence the position of law elucidated in the context of paragraph 3 of the said Schedule would not ipso facto apply to situations contemplated under paragraph 4 of the said Schedule., We are of the opinion that split of a political party as contemplated under paragraph 3 of the Schedule, as it existed, and merger of the original political party with another political party as contemplated under paragraph 4 of the said Schedule are distinct concepts, not to be confused with each other. Therefore, reliance placed on behalf of the Petitioners on the judgments in the case of Ravi S. Naik versus Union of India and others, Jagjit Singh versus State of Haryana and others and Rajendra Singh Rana and others versus Swami Prasad Maurya and others, is misplaced and they can be of no assistance for them to show any error committed by the Respondent number 1 – Speaker while passing the impugned Orders., In Re: Questions 4 and 5: The learned Counsel appearing for the Petitioners placed much reliance on the Full Bench judgment of this Court, in the case of Shah Faruq Shabir and others versus Govindrao Ramu Vasave and others, to contend that it was a sine qua non for the Respondents to have proved merger of the original political party with the other political party to claim protection from disqualification under paragraph 4 of the said Schedule. Much emphasis was placed on some portions of the Full Bench judgment, particularly paragraph 36 thereof, to claim that the view canvassed on behalf of the Petitioners was accepted in totality by the Full Bench and the same being a binding precedent on this Court, the writ petitions ought to be allowed and the impugned orders passed by the Respondent number 1 – Speaker deserve to be set aside, thereby disqualifying the contesting Respondents as members of the House., Since elaborate submissions were made on behalf of the rival parties in the context of the aforesaid Full Bench judgment, it is necessary to refer to the same in detail and to examine whether the Petitioners are justified in their aforesaid contentions., A perusal of the aforesaid Full Bench judgment of this Court in the case of Shah Faruq Shabir and others versus Govindrao Ramu Vasave and others, shows that the following specific questions arose for consideration before the Full Bench: I. Whether the term aghadi or front as defined under section 2(a) of the Disqualification Act of 1986 would mean the party or aghadi on whose candidature the councillor is elected or would also include the aghadi of two or more municipal parties coming into existence after the elections are held? II. Whether the term original political party or aghadi appearing in Section 5 would mean the party at its National level or would mean a municipal party?, The factual background in the said case wherein the aforesaid questions arose for consideration, is stated in paragraphs 3 and 4 of the said judgment, which read as follows: 3. The facts in nutshell, giving rise to the reference, are as under: Petitioners are the elected councillors of Municipal Council, Navapur. General elections to the Municipal Council took place to elect total 19 councillors and candidature of petitioners was set up by Nationalist Congress Party (NCP). The post election aghadi came to be formed consisting of 09 councillors belonging to Nationalist Congress Party (NCP), 02 councillors set up by Bharatiya Janata Party (BJP) and 01 councillor set up by Shiv Sena, on 1 December 2007. Respondent No. 1 – Govindrao Ramu Vasave was chosen as a leader of the aghadi. An application came to be presented to the Collector for registration of aghadi on 2 December 2007. Respondent No. 1 informed the Collector that he is elected as leader of NCP municipal party as also of aghadi. Respondent No. 1 came to be elected as President of the Municipal Council for the term of two and half year on 24 December 2007 with the support of councillors of aghadi. 4. On 18 June 2010, an application came to be presented by petitioners along with Shri Nilesh Prajapat and Smt. Lalita Gavit to the Collector seeking approval to a separate group. A whip was issued by Respondent No. 1 on 18 June 2010 and also by the President of the Nandurbar District Nationalist Congress Party on 21 June 2010, calling upon members of the aghadi and members set up by NCP to cast vote in favour of Respondent No. 1 during the to the post of President which was scheduled to be held on 23 June 2010. Petitioners violated the whip and a candidate viz. Mr. Damu Vana Birhade, belonging to Indian National Congress (Congress I), was elected as the President and petitioner No. 1 came to be elected as Vice President. Petitioners were sought to be disqualified in view of provisions of section 3(1)(a) and 3(1)(b) of the Maharashtra Local Authority Members' Disqualification Act, 1986 (hereinafter referred to as the Disqualification Act). The Collector allowed the disqualification petition and held petitioners disqualified under section 3(1)(a) and 3(1)(b) of the Disqualification Act. The said judgment is assailed in the writ petition., After an elaborate discussion in the context of the above‑quoted questions that specifically arose for consideration before the Full Bench in paragraph 75 of the said judgment, the questions were answered as follows: 75. In the result, (I) The answer to the first issue, whether the term aghadi or front as defined under section 2(a) of the Disqualification Act of 1986, would mean the party or aghadi on whose candidature the councillor is elected or would also include the aghadi of two or more municipal parties coming into existence after the elections are held, shall have to be recorded as the party or aghadi on whose candidature the councillor is elected. As a necessary consequence, the aghadi or front, within contemplation to section 2(a) of the Disqualification Act of 1986, is a pre‑poll aghadi or front. (II) Similarly, in view of the judgment of the Supreme Court of India in the matter of Mayawati versus Markandeya Chand, reported in (1998) 7 SCC 517, as well as in view of the reasons set out in this judgment, it has to be concluded that the term original political party or aghadi, appearing in section 5, would mean the party at its National level and would not mean the municipal party. The issue (II) referred for consideration is answered accordingly., The Full Bench answered the questions after taking into consideration the meaning of the term aghadi defined under the Act of 1986, as also front defined therein and finally came to the conclusion that the aghadi as contemplated under Section 2(a) of the Act of 1986 is a pre‑poll aghadi or front. It was further concluded that original political party or aghadi in Section 5 of the Act of 1986 would mean the party at the National level and not the Municipal Party. The nature of controversy before the Full Bench, the questions framed in that context and the manner in which the questions were answered, show that the deeming fiction contemplated under Section 5(2) of the Act of 1986, pari materia with paragraph 4(2) of the Tenth Schedule to the Constitution, did not come up for consideration before the Full Bench in order to consider and answer the specific questions that were referred to the Full Bench., It was in the process of discussing the provisions of the Act of 1986, which have been enacted on the basis of the Tenth Schedule to the Constitution, that the Full Bench did make observations with regard to Section 5 of the Act of 1986, particularly in paragraph 36. But, the question is whether such observations made by the Full Bench of this Court in the aforesaid judgment can be said to be the ratio decidendi of the judgment or merely passing observations or obiter dicta. Only those findings of the Full Bench germane to the specific questions referred for consideration in the said case would be the ratio decidendi and hence binding precedent on this Court. We are of the opinion that a bare perusal of the above‑quoted questions referred to the Full Bench and the answers given thereto in paragraph 75 of the said judgment, quoted above, would show that the passing observations made in some portions of the said judgment, including paragraph 36 thereof, do not constitute the ratio decidendi of the judgment of the Full Bench., In this context, the learned Counsel appearing for the Respondents are justified in relying upon Full Bench judgment of this Court in the case of Emkay Exports, Mumbai and another versus Madhusudan Shrikrishna. In this Full Bench judgment, this Court has referred to well established principles recognised by the Supreme Court of India in various judgments, concerning the concept of the ratio decidendi in the backdrop of the law of precedent. In the said judgment, it has been held as follows: 7. The concept of precedent has attained important role in administration of justice in the modern times. The case before the Court should be decided in accordance with law and the doctrines.
id_89	3	The mind of the High Court should be clearly reflecting on the material in issue with regard to the facts of the case. The reason and spirit of case make law and not the letter of a particular precedent. Halsbury's The Laws of England explained the word ratio decidendi as: It may be laid down as a general rule that part alone of a decision by a Court of Law is binding upon courts of co‑ordinate jurisdiction and inferior courts which consists of the enunciation of the reason or principle upon which the question before the Court has really been determined. This underlying principle which forms the only authoritative element of a precedent is often termed the ratio decidendi. It is by the choice of material facts that the High Court creates law. The law so created would be a good precedent for similar subsequent cases unless it falls within the exceptions hereinafter indicated., The doctrine of precedent relates to following of previous decisions within its limitations. It introduces the concept of finality and adherence to the previous decisions and, while attaining it, it creates consistency in application of law. The later judgment should be similar to the earlier judgment, which on material facts are the same. Finding ratio decidendi is not a mechanical process but an art which one gradually acquires through practice. What is really involved in finding the ratio decidendi of a case is the process of abstraction. Ratio decidendi is a term used in contrast to obiter dictum which is not necessarily binding in law. According to Sir John Salmond, a precedent is a judicial decision, which contains in itself a principle. The only principle which forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. According to Austin, the general reasons or principles of judicial decision abstracted from peculiarities of the case are commonly styled by writers on jurisprudence as ratio decidendi. In order to apply a judgment as a precedent, the relevant laws and earlier judgments should be brought to the notice of the High Court and they should be correctly applied. Mere observations in a previous judgment may not be binding on a subsequent Bench if they are not truly applicable to the facts and controversies in a subsequent case as per settled principle of ratio decidendi. The rule of precedent, thus, places an obligation upon the Bench considering such judgments that the High Court should discuss the facts and the law of both the cases and then come to a conclusion whether the principle enunciated in the previous judgment is actually applicable on facts and law to the subsequent case. This principle would equally apply when the High Court has to consider which of the two views expressed by earlier equi or other Benches is applicable to the subsequent case. The rule of precedent is not without exceptions. It has its own limitations. Besides that, the law changes with the changed circumstances and even good law may be rendered ineffective or unconstitutional because of passage of time, as reflected in the principle cessante ratione cessat ipsa lex., Applying the said principles to the observations made by the aforesaid Full Bench of the High Court in the case of Shah Faruq Shabir & Ors. vs. Govindrao Ramu Vasave & Ors. (supra) particularly paragraph 36 thereof, upon which the learned counsel appearing for the Petitioners have placed much emphasis, we are of the opinion that the said observations do not constitute the ratio decidendi of the said judgment, to be a binding precedent on this High Court. This is particularly for the reason, as noted above, that the said observations are not germane to the specific questions referred to the Full Bench and the findings given thereon., Therefore, it becomes clear that the judgment of the Full Bench in the case of Shah Faruq Shabir & Ors. vs. Govindrao Ramu Vasave & Ors. (supra) does not lay down the ratio that there is necessarily a twin test for determining merger of the original political party with another political party and for such merger to take place, both conditions as contemplated under sub‑paragraphs (1) and (2) of paragraph 4 of the Tenth Schedule need to be satisfied., The learned Senior Counsel appearing for the Respondent nos. 3, 8, 9 and 10 in Writ Petition No. 1228 of 2021 is also justified in contending that the aforesaid Full Bench judgment of this High Court has erred in relying upon the judgment of the Supreme Court in the case of Mayavati vs. Markandeya Chand & Ors. (supra). In the first place, the said judgment of the Supreme Court also concerned a case of alleged split in the political party relevant for the erstwhile paragraph 3 of the Tenth Schedule to the Constitution. Secondly, a perusal of the reported judgment shows that there were two divergent opinions of two Honourable Judges in the three‑Judge Bench of the Supreme Court, considering the case of Mayavati vs. Markandeya Chand & Ors. (supra). While the opinion of one Honourable Judge, Justice Thomas, was that the appeal deserved to be allowed declaring twelve MLAs of the Uttar Pradesh Legislative Assembly as disqualified, the other Honourable Judge, Justice Srinivasan, completely disagreed and held that the appeal deserved to be dismissed. In this situation, the third Honourable Judge, the then Chief Justice of India, Justice M. M. Punchhi, directed that the matter be referred to the Constitution Bench for decision. Thus, there are no conclusive findings in the reported judgment and the Full Bench has picked up the opinion of only one Honourable Judge as if it were a binding precedent while reaching findings. This is another aspect indicating that the observations made by the Full Bench of the High Court in the case of Shah Faruq Shabir & Ors. vs. Govindrao Ramu Vasave & Ors. (supra) were not relevant for the specific questions referred to the Full Bench and hence not the ratio decidendi, which could be said to be binding on this High Court., It is at this stage that question 5 framed above becomes relevant and it would be necessary to consider the same. According to the learned counsel appearing for the Respondents, the recent judgment of the Supreme Court in the case of Shrimanth Balasaheb Patil vs. Speaker, Karnataka Legislative Assembly (supra), impliedly overrules the aforesaid Full Bench judgment of this High Court in the case of Shah Faruq Shabir & Ors. vs. Govindrao Ramu Vasave & Ors. (supra). This is contested by the learned counsel appearing for the Petitioners and, therefore, it becomes necessary to refer to the said recent judgment of the Supreme Court in detail. Both parties agree that in this context it would be necessary to peruse paragraphs 26 to 28 and 183 to 189 of the said judgment. The said portion of the judgment concerns contentions raised by a sole elected member of a political party in the Karnataka Legislative Assembly., The Speaker of the House in the said case proceeded on the basis that the sole elected member of the political party had given a letter to the Speaker that he had agreed to merge his party with the Indian National Congress. The Speaker proceeded on the basis of sub‑paragraph (2) of paragraph 4 of the Schedule and held that, since the sole elected member had communicated his agreement to merge with the INC and, being the sole elected member, the requirement of two‑thirds of members of the legislature party as per sub‑paragraph (2) of paragraph 4 was satisfied, the sole elected member did not attract disqualification under the Schedule of the Constitution. In fact, the sole elected member was considered as a member of the INC Legislature Party on the basis of his letter to the Speaker about merger. Thereafter, the member became a Minister but later resigned and withdrew support from the Government, having voted against the whip of the INC in the House. The member claimed that he could not be hauled up for disqualification because merger in the first place had not taken place in the absence of a formal order of merger. According to him, he was free to disobey the whip issued by the INC because there was no formal order of merger and that he could not be disqualified under the Tenth Schedule to the Constitution. The Supreme Court rejected the contention of the sole elected member and upheld the order passed by the Speaker disqualifying the member., The learned counsel appearing for the Petitioners placed reliance on paragraph 27 of the Supreme Court judgment to claim that in the said case there was a merger of the original political party and, therefore, the facts were distinct from the present cases where there was no merger of the political parties. The Respondents contended that there was no necessity of merger of the original political party in view of the deeming fiction operating under sub‑paragraph (2) of paragraph 4 of the Schedule. We are unable to accept the contentions raised on behalf of the Petitioners, because a proper appreciation of paragraphs 183 to 189 of the Supreme Court judgment, particularly paragraph 186 thereof, shows that the operation of the deeming fiction under sub‑paragraph (2) of paragraph 4 recognised by the Speaker was clearly upheld by the Supreme Court. Thus, we find substance in the contention raised on behalf of the Respondents that the observations made in the Full Bench judgment of the High Court in the case of Shah Faruq Shabir & Ors. vs. Govindrao Ramu Vasave & Ors. (supra), pertaining to Section 5(2) of the Act of 1986, pari materia with sub‑paragraph (2) of paragraph 4 of the Tenth Schedule of the Constitution, are contrary to the position of law recognised by the Supreme Court., Therefore, even if the observations of the Full Bench of this High Court in the case of Shah Faruq Shabir & Ors. vs. Govindrao Ramu Vasave & Ors. (supra) heavily relied upon by the Petitioners are taken into consideration, the same stand impliedly overruled by the observations of the Supreme Court in the judgment in the case of Shrimanth Balasaheb Patil vs. Speaker, Karnataka Legislative Assembly (supra). Consequently, question 4 is answered by holding that the Full Bench judgment of the High Court in the case of Shah Faruq Shshabir & Ors. vs. Govindrao Ramu Vasave & Ors. (supra) is not a binding precedent on this High Court for interpretation of sub‑paragraph (2) of paragraph 4 of the Tenth Schedule to the Constitution. We also find that, even otherwise, the observations made by the Full Bench of this High Court in the case of Shah Faruq Shabir & Ors. vs. Govindrao Ramu Vasave & Ors. (supra) are contrary to the law recognised by the Supreme Court in the case of Shrimanth Balasaheb Patil vs. Speaker, Karnataka Legislative Assembly (supra). It is also found that the Supreme Court judgment effectively supports the case of the Respondents, and, accordingly, question 5 stands answered., In Re: Question 6: The learned counsel appearing for the rival parties have also made elaborate submissions on the Full Bench judgment of the Punjab and Haryana High Court in the case of Baljit Singh Bhullar vs. Speaker, Punjab Vidhan Sabha (supra) and the Division Bench judgment of the Gauhati High Court in the case of Speaker, Nagaland Legislative Assembly vs. Imtilemba Sangtam & Ors. (supra). While the learned counsel for the Petitioners have submitted that the said judgments are based on an erroneous interpretation of paragraph 4 of the Tenth Schedule to the Constitution, the learned counsel appearing for the Respondents have placed much reliance on the said judgments., In the Full Bench judgment of the Punjab and Haryana High Court in the case of Baljit Singh Bhullar vs. Speaker, Punjab Vidhan Sabha (supra), the distinction between the split of a political party under the erstwhile paragraph 3 and merger under paragraph 4 of the Tenth Schedule to the Constitution has been taken into consideration. It has been observed as follows: Thus sub‑paragraph 2 creates a fiction in law that though there is no merger as such in the original political party either at the national level or at the State level, such a merger is deemed to have taken place if two‑thirds members of the Legislature party of that political party agree that there is a merger. Thus, under sub‑paragraph 2 of paragraph 4 it is for the members of the Legislature party to decide whether there should be or should not be a merger of their political party with another political party. A split referred to in the above paragraph relates to a split in the original party. What happens in the Legislature party is only an outcome of the split outside the Legislature, but such a split will be recognised by the Speaker if such groups splitting away from the original party consist of not less than one‑third members of the Legislature party. For the purpose of paragraph 3, two things are required: a split in the political party and one‑third members of the Legislature party constituting the group splitting the original political party. There is no provision like sub‑paragraph (2) of paragraph 4 incorporated in paragraph 3 of the Tenth Schedule. As per paragraph 4(1), if there is a merger of the original political party with another political party, then it can be taken as a merger, but for the purpose of recognising that merger by the Speaker, such measure is dependent on any action by the members of the Legislature party of that political party concerned, whereas in the case of split, developments take place entirely outside the House. Paragraph 4(2) reads that the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two‑thirds of the members of the Legislature party concerned have agreed to such merger. The words used therein are not that no merger of a political party with any other party can be deemed to have taken place unless at least two‑thirds of the members of the Legislature party concerned have agreed or ratified such a merger taken outside the House. It does not contemplate any merger outside the House. The deeming provision, as discussed above, clearly indicates that the merger contemplated in paragraph 4 is a merger of the political party consisting of the members of the Legislature with another political party. If a majority of two‑thirds of those Legislative members belonging to that particular political party agree, then it shall be taken that the political party has merged with another political party. Such a situation is also recognised by the Supreme Court in Kihoto Hollohan v. Achihu, (1992) Supp (2) SCC 651 : AIR 1993 SC 413., In the case of Speaker, Nagaland Legislative Assembly vs. Imtilemba Sangtam & Ors. (supra), the Division Bench of the Gauhati High Court, while considering paragraph 4 of the Tenth Schedule to the Constitution, held as follows: The distinction between paragraph 1 and 2 lies in the fact that in paragraph 1 there should be a valid merger according to the party constitution and elected members of the House endorsing that merger even if they are less than two‑thirds; they would be saved from disqualification and those who do not agree to the merger would be treated as a separate group. It is only in the case of a valid merger, when the legislators endorsing merger are less than two‑thirds joining the other party, that the Speaker will have jurisdiction to make an enquiry regarding valid merger. But when two‑thirds members of the House endorse the merger and join another political party, it would be inscrutable for the Speaker to make an enquiry since the deeming provisions in paragraph 4(2) declare and make it conclusive proof of fact of merger of the original political party. The argument that the last words \such merger\ in paragraph 4(2) should be relatable to a valid merger according to the party constitution is untenable. Such merger should be understood in the context of the provisions of paragraph 2 only. If the argument of the counsel for the respondents is accepted, the very purpose of the deeming provisions of paragraph 4(2) would be rendered redundant. The plain language of the deeming provision of paragraph 4(2) supports the view taken by us and it only amounts to discovering the correct meaning and effect of the deeming provision. By virtue of the deeming provisions in paragraph (2), two‑thirds elected members of the House have endorsed the merger and joined the Bharatiya Janata Party. The claim of merger set up by them is inscrutable on the part of the Speaker. The deeming provisions will come into effect and such merger claimed by them is a valid merger within the meaning of paragraph 4(2). Consequently, they do not suffer disqualification under paragraph 4‑2(1)., We are in agreement with the aforesaid findings rendered by the Full Bench judgment of the Punjab and Haryana High Court in the case of Baljit Singh Bhullar vs. Speaker, Punjab Vidhan Sabha (supra) and the Division Bench judgment of the Gauhati High Court in the case of Speaker, Nagaland Legislative Assembly vs. Imtilemba Sangtam & Ors. (supra), because they are based on an interpretation of paragraph 4 of the Tenth Schedule to the Constitution, which ensures that sub‑paragraph (2) of paragraph 4 is not rendered otiose and the deeming fiction incorporated in the same operates in its full force as intended by Parliament. Reading a twin test in paragraph 4 of the Schedule as canvassed by the Petitioners would be incongruous and would militate against the plain meaning of the words in sub‑paragraphs (1) and (2) of paragraph 4., Much was said by the learned counsel appearing on behalf of the Petitioner in Writ Petition No. 1228 of 2021, that the Full Bench of the Punjab and Haryana High Court, on the very same day, gave two contradictory judgments i.e. the judgment in the case of Baljit Singh Bhullar vs. Speaker, Punjab Vidhan Sabha (supra) and the judgment in the case of Ram Bilas Sharma vs. Speaker, Haryana Vidhan Sabha (supra). A perusal of the two judgments shows that while the judgment in Ram Bilas Sharma vs. Speaker, Haryana Vidhan Sabha (supra) pertained to a question of split in a political party, the judgment in Baljit Singh Bhullar vs. Speaker, Punjab Vidhan Sabha (supra) pertained to merger. The distinction between split under erstwhile paragraph 3 of the Schedule (now deleted) and merger under paragraph 4 is essential for the purpose of protecting a member from disqualification under the Schedule. Once this distinction is understood, it becomes clear that the contention raised on behalf of the Petitioners is misplaced and cannot be accepted. Thus, we answer question 6 by holding that the position of law enunciated in the Full Bench judgment of the Punjab and Haryana High Court in the case of Baljit Singh Bhullar vs. Speaker, Punjab Vidhan Sabha (supra) and the Division Bench judgment of the Gauhati High Court in the case of Speaker, Nagaland Legislative Assembly vs. Imtilemba Sangtam & Ors. (supra) lay down the correct position of law as regards the interpretation of paragraph 4 of the Tenth Schedule to the Constitution, and we agree with the same. As noted above, the said position now stands confirmed by the observations of the Supreme Court in the case of Shrimanth Balasaheb Patil vs. Speaker, Karnataka Legislative Assembly (supra)., In Re: Question 7: There were elaborate submissions made on behalf of the Petitioners that if the contentions raised on behalf of the Respondents on interpretation of paragraph 4 of the Tenth Schedule to the Constitution were to be accepted, it would militate against the object with which the Tenth Schedule was introduced in the Constitution, that it would encourage defections and that it was against political and constitutional morality. Emphasis was placed on observations made by the Supreme Court in the case of Kihoto Hollohan vs. Zachillhu (supra). At this juncture, it would be appropriate to refer to the judgment of the Supreme Court in the case of Kihoto Hollohan vs. Zachillhu (supra), because it concerned a challenge to the Fifty‑second Amendment of the Constitution made in 1985, whereby the Tenth Schedule was introduced. The Supreme Court considered rival contentions pertaining to the constitutional validity of the Tenth Schedule. In this context, there was a discussion on the aspect of unprincipled defections by elected members due to the lure of political office and other extraneous considerations, which had become a political and social evil. The Court held that the anti‑defection law is a statutory variant of its moral principle and that unprincipled defection is a political and social evil. The legislature, having perceived this evil, enacted the law to place limits on political and personal conduct. The Court said that the choices in constitutional adjudication clearly indicate the need for deference to legislative wisdom, provided the end is legitimate and within the scope of the Constitution., The Supreme Court further observed that the distinction between the conception of defection and split in the Tenth Schedule is thin and artificial. It noted that while floor‑crossing by one member may be an evil, a collective act by not less than one‑third of the elected members of a party is regarded as a permissible split or merger. The Court cautioned that the underlying premise in declaring an individual act of defection as forbidden is the presumption of lure of office or money. The legislature, however, envisaged the need to provide for floor‑crossing on the basis of honest dissent, and that a collective act by a sufficient number of members may generate a presumption of bona fides. The Court found no substance in the attack on the statutory distinction between defection and split., The above quoted portion shows that the Supreme Court held that it was for the legislature to lay down the threshold of political morality while introducing the Tenth Schedule for addressing the evil of unprincipled defections by elected members of political parties. The Court stated that the judiciary would have nothing else to go by except the legislative wisdom in this arena. The perception of the legislature regarding political proprieties and moral standards was recognised, while emphasising that there was a need to provide for floor‑crossing on the basis of honest dissent., As per the law laid down by the Supreme Court in Kihoto Hollohan vs. Zachillhu (supra), it is for Parliament to lay down standards of morality, including the threshold of numbers that would determine whether a merger and consequent giving up of membership of a political party by an elected member would not result in disqualification from membership of the House. Parliament, in its wisdom, has incorporated a deeming fiction under sub‑paragraph (2) of paragraph 4 of the Tenth Schedule to protect a member of a House from disqualification provided at least two‑thirds of the legislature party agree to merge with another political party. As long as the specific condition of not less than two‑thirds of the legislature party agreeing to merge is satisfied, it is politically and constitutionally moral to protect the member from disqualification under sub‑paragraph (2) of paragraph 4 of the Tenth Schedule., Much has been said about the interpretation canvassed on behalf of the Respondents being antithetical to the object of introduction of the Tenth Schedule, but the object is not only to prevent unprincipled defections, but also to lay down minimum standards of political and constitutional morality in the backdrop of merger of political parties and to set conditions under which a member would either attract disqualification under paragraph 2 of the Schedule or be protected from disqualification under paragraph 4. It is significant that sub‑paragraph (1) of paragraph 2 of the Schedule opens with the words \Subject to the provisions of paragraph 4\, thereby showing that Parliament, while seeking to achieve the object of the Schedule, carved out an exception to disqualification of a member under paragraph 2 by providing that if, under sub‑paragraph (2) of paragraph 4, there is a deemed merger, the member would be protected from disqualification. The contentions raised on behalf of the Petitioners could be accepted only if paragraph 4 consisted solely of sub‑paragraph (1) and sub‑paragraph (2) did not exist. So long as sub‑paragraph (2) of paragraph 4 exists, it must be given its logical effect and cannot be ignored.
id_89	4	In view of the above, the aforesaid question is answered by holding that Parliament in its wisdom has incorporated sub paragraph (2) of paragraph 4 of the said Schedule, which cannot be held to be militating against the object of introduction of the Tenth Schedule and it cannot be said that the same would encourage defections. The presumption of bona fide as per legislative wisdom, referred to in the above‑quoted paragraphs of the Judgment of the Supreme Court of India in the case of Kihoto Hollohan versus Zachillhu (supra), cannot be ignored., In Re: Question 8: In the backdrop of the above discussion, we are of the opinion that the Respondent No. 1 – Speaker passed the impugned Orders based on interpretation of sub‑paragraph (2) of paragraph 4 of the said Schedule, which is in tune with the language of the said provision. The Speaker proceeded on the basis that, so long as there was no dispute that in both these cases two‑thirds members of the legislature parties of the Indian National Congress and the MGP had placed material on record that they had agreed for merger of their original political party with the Bharatiya Janata Party, the deeming fiction came into operation, resulting in protection of Respondent Nos. 2 to 11 in Writ Petition Number 1228 of 2021 and Respondent Nos. 2 and 3 in Writ Petition Number 1530 of 2021, from disqualification. Once this position on the basis of interpretation of paragraph 4 is accepted, no error can be attributed to the final decisions/orders rendered by the Speaker in these two cases., As regards the contentions raised on behalf of the rival parties about attempt on the part of the Respondents to lead evidence to show merger of the original political party, opposition on the part of the Petitioners to permit such material being placed on record and orders passed in such applications filed before the Speaker being made subject matter of Writ Petition before this Court, all pale into insignificance. This is for the reason that such material or proof was not necessary, so long as it was an admitted position that two‑thirds members of the Legislature Party of the Indian National Congress as well as the MGP had agreed for the merger and the deeming fiction in sub‑paragraph (2) of paragraph 4 of the Tenth Schedule to the Constitution applied in full force. Hence, the aforesaid question is answered by holding that the impugned Orders do not deserve interference., In view of the above discussion pertaining to the questions that arose in these Petitions, it is concluded as follows: The Respondent No. 1 – Speaker in the present case was justified in holding that the Respondent Nos. 2 to 11 in Writ Petition Number 1228 of 2021 and Respondent Nos. 2 and 3 in Writ Petition Number 1530 of 2021 did not attract disqualification under the Tenth Schedule as the deeming fiction under sub‑paragraph (2) of paragraph 4 of the said Schedule operated in their favour. No case is made out by the Petitioners for interference in judicial review of the impugned Orders passed by the Respondent No. 1 – Speaker on the touchstone of the scope of judicial review recognised in the case of Kihoto Hollohan versus Zachillhu (supra), limited to jurisdictional errors only i.e. infirmities based on violation of Constitutional mandate, malafides, non‑compliance of rules of natural justice and perversity. We conclude that none of the said jurisdictional errors could be demonstrated by the Petitioners in the facts of the present cases. We agree with the position of law laid down in the Full Bench Judgment of the Punjab and Haryana High Court in the case of Baljit Singh Bhullar versus Speaker, Punjab Vidhan Sabha (supra) and Division Bench Judgment of the Gauhati High Court in the case of Speaker, Nagaland Legislative Assembly versus Imtilemba Sangtam and Others (supra), on the interpretation of paragraph 4 of the Tenth Schedule to the Constitution. The recent Judgment of the Supreme Court of India in the case of Shrimanth Balasaheb Patil versus Speaker, Karnataka Legislative Assembly (supra), effectively lays down law in the context of sub‑paragraph (2) of paragraph 4 of the Tenth Schedule to the Constitution, as recognised in the aforesaid Full Bench Judgment of the Punjab and Haryana High Court and Division Bench Judgment of the Gauhati High Court. The Full Bench Judgment of the Supreme Court of India in the case of Shah Faruq Shabir and Others versus Govindrao Ramu Vasave and Others (supra), does not lay down the ratio as claimed by the Petitioners regarding “twin test” of merger of political parties under paragraph 4 of the Tenth Schedule to the Constitution, as the passing observations made therein were not germane to the specific questions referred to the said Full Bench and hence, it is not a binding precedent for the said aspect of the matter. Admitted position on facts of the present cases indicates that the Respondent Nos. 2 to 11 in Writ Petition Number 1228 of 2021 and Respondent Nos. 2 and 3 in Writ Petition Number 1530 of 2021 satisfied the requirement of sub‑paragraph (2) of paragraph 4 of the Tenth Schedule to the Constitution and hence, the deeming fiction operated, thereby protecting the said Respondents from disqualification under the Tenth Schedule to the Constitution. The impugned Orders passed by the Respondent No. 1 – Speaker, rejecting the Disqualification Petitions cannot be said to be militating against the object of introduction of the Tenth Schedule to the Constitution on the touchstone of political and Constitutional morality, in view of the specific observations regarding wisdom of the Legislature/Parliament made in the aforesaid Judgment of the Supreme Court of India in the case of Kihoto Hollohan versus Zachillhu (supra). Hence, we conclude that the Petitioners have not been able to make out a case for interference in the impugned Orders passed by the Respondent No. 1 – Speaker and we hold that the Disqualification Petitions filed by the Petitioners were correctly dismissed by the Respondent No. 1 – Speaker., In view of the above, the Writ Petitions stand dismissed, with no order as to costs. Pending applications, if any, also stand disposed of.
id_890	0	Pronounced on 15 December 2023. Through: Mr. Jayant Mehta, Senior Advocate, along with Mr. Raghavendra M. Bajaj, Mr. Sidhant Goel, Mr. Mohit Goel, Ms. Garima Bajaj, Mr. Nikhil Bamal, Mr. Agnish Aditya, Mr. Kumar Karan, Mr. Shagun Agarwal, Mr. Deepankar Mishra, Mr. Karmanya Dev Sharma and Ms. Ayushi Kumar, Advocates, versus Through: Mr. Giriraj Subramanium, Mr. Shonak Sharma, Mr. Simarpal Singh Sawhney, Mr. Siddhant Juyal and Ms. Urvashi Singh, Advocates. Interim Application No. 5683/2023 (on behalf of the plaintiff under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908, read with Section 151 of the Code of Civil Procedure, 1908, for ad interim ex‑parte injunction)., The present suit has been filed by the plaintiff seeking a declaration that the alleged oral agreement entered into between the plaintiff and defendant on 02 July 2018 (the Agreement) in respect of the plaintiff’s then two thousand four hundred and forty‑seven (2,447) equity shares in Resilient Innovations Private Limited, which as a result of a share‑split and a bonus share issue today stand at twenty‑seven thousand six hundred and twenty‑seven (27,627) equity shares, stands rescinded and terminated in accordance with law and contract and consequently has become void., The plaintiff has further sought a declaration that Form SH‑4 dated 02 July 2028, executed by the plaintiff in favour of the defendant pursuant to the Agreement, be declared void and liable to be cancelled; and a further declaration that the plaintiff continues to be the owner of the plaintiff’s shares together with all rights that accrue in respect thereof. The plaintiff has also sought permanent prohibitory injunctions restraining the defendant (including his attorneys, assigns, successors‑in‑interest, agents, authorized persons or anyone acting for and/or on his behalf) from alienating, transferring, selling, creating any encumbrance, third‑party rights or any other interest of any kind whatsoever in the plaintiff’s shares, or otherwise dealing with the plaintiff’s shares in any manner whatsoever; restraining the defendant from exercising any rights of any kind whatsoever in respect of the plaintiff’s shares; and restraining the defendant from wrongly professing or claiming to be the owner of the plaintiff’s shares amongst the public at large in any manner whatsoever. Alternative relief seeking compensation and damages has also been claimed by the plaintiff., Along with the suit, the plaintiff has also filed an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908, inter alia, seeking: an interim injunction restraining the defendant, including his attorneys, assigns, successors‑in‑interest, agents, authorized persons or anyone acting for and/or on his behalf, from alienating, transferring, selling, creating any encumbrance, third‑party rights or any other interest of any kind whatsoever in the plaintiff’s shares, or otherwise dealing with the plaintiff’s shares in any manner whatsoever; an interim injunction restraining the defendant from exercising any rights of any kind whatsoever in respect of the plaintiff’s shares; an interim injunction restraining the defendant from wrongly professing or claiming to be the owner of the plaintiff’s shares amongst the public at large in any manner whatsoever; a request that, in view of the facts and circumstances of the present case and in the interest of justice and public interest, an ex‑parte order in the aforementioned terms may be granted; and any further order that the Hon’ble Court may deem fit in the interest of justice., The factual background in the context of which the present suit along with the aforesaid Interim Application No. 5683/2023 has been filed is briefly enumerated hereunder., In August 2016, the plaintiff and Mr. Bhavik Koladiya are stated to have established EZY Services, a partnership firm, in which the plaintiff had forty percent shares and Mr. Bhavik Koladiya had sixty percent shares. It is averred in the plaint that on 20 March 2018, in order to formalize the structure of the business and to make the structure more investor‑friendly, the plaintiff and Mr. Koladiya jointly founded and incorporated Resilient Innovations Private Limited as a private limited company with an equal shareholding of five thousand equity shares each. EZY Services is stated to have assigned all rights, title and interest, together with goodwill in its brand BharatPe, to Resilient Innovations Private Limited. It is stated that in May 2018, the defendant was hired as Chief Executive Officer of Resilient Innovations Private Limited., It was agreed that the plaintiff would transfer to the defendant two thousand four hundred and forty‑seven (2,447) equity shares in Resilient Innovations Private Limited, together with all rights attached to them, for rupees ten (INR 10) per equity share, payable as consideration. This would translate into a total consideration of rupees twenty‑four thousand four hundred and seventy (INR 24,470) for twenty‑four point four seven percent (24.47%) shares in Resilient Innovations Private Limited. It was also decided that Mr. Koladiya would transfer to the defendant seven hundred and forty‑five (745) equity shares in Resilient Innovations Private Limited, together with all rights attached to them, for rupees ten (INR 10) per equity share, payable as consideration, which would translate into a total consideration of rupees seven thousand four hundred and fifty (INR 7,450) for seven point four five percent (7.45%) shares in Resilient Innovations Private Limited., Accordingly, pursuant to the Agreement, on 02 July 2018 the plaintiff executed a Form SH‑4 in favour of the defendant in respect of the plaintiff’s shares. However, the defendant did not pay the purchase consideration to the plaintiff by any mode, including by way of cash, in any form or manner., Details of the plaintiff’s shares are provided below: Folio number 02, equity shares ranging from 7,554 to 10,000., It is averred that pursuant to the Agreement dated 02 July 2018 the plaintiff executed the statutorily prescribed Form SH‑4 in favour of the defendant in respect of the plaintiff’s shares. However, while executing Form SH‑4 dated 02 July 2018 the plaintiff did not receive the purchase consideration from the defendant by any mode, including by way of cash or in any form or manner, even though the standard form reflected payment of consideration under the column titled consideration received. A copy of the Form SH‑4 dated 02 July 2018 has been filed along with the documents accompanying the plaint., It is averred that although the aforesaid Form SH‑4 expressly mentions the amount of purchase consideration under the column titled consideration received, as a matter of fact the plaintiff did not receive such consideration., It was submitted that the defendant represented and assured the plaintiff that the defendant would pay the purchase consideration in due course. The suit proceeds on the basis that since the purchase consideration was not paid, the property or title in the plaintiff’s shares did not pass on to the defendant; consequently the plaintiff purports to treat the aforesaid transaction as repudiated., In support of his contention that the purchase consideration was not paid, the plaintiff has sought to file the bank statements of all the plaintiff’s accounts in which the defendant could have paid the purchase consideration., In the above background, the plaintiff purported to exercise its rights to rescind and terminate the aforesaid agreement and treat Form SH‑4 dated 02 July 2018 as cancelled and issued a Rescission and Termination Notice dated 18 March 2023. The notice, addressed to Mr. Ashneer Grover, states that the agreement dated 02 July 2018 is rescinded and terminated due to the defendant’s fundamental breach, non‑performance and repudiation, that the Form SH‑4 is void, and that the plaintiff continues to be the legal and beneficial owner of the shares together with all rights attached thereto. The notice also demands that the defendant cease and desist from alienating, transferring, selling, creating any encumbrance or third‑party rights in the shares, from exercising any right in respect of the shares, and from wrongly professing ownership of the shares in public. The plaintiff further reserves the right to claim compensatory damages arising out of the defendant’s breach., The defendant replied to the aforesaid termination notice on 19 March 2023, stating that the plaintiff had not placed the correct facts before the court and that, contrary to the plaintiff’s claim, the consideration amount of rupees twenty‑four thousand four hundred and seventy (INR 24,470) was paid in cash by the defendant to the plaintiff at the time of execution of the agreement on 2 July 2018., In the above background, the present suit was filed seeking the prayers mentioned above., The defendant has filed a written statement, wherein it averred that out of the three thousand one hundred and ninety‑two (3,192) equity shares, the plaintiff and the defendant orally agreed on 02 July 2018 that the plaintiff would transfer to the defendant two thousand four hundred and forty‑seven (2,447) shares for rupees ten (INR 10) per equity share, amounting to a total consideration of rupees twenty‑four thousand four hundred and seventy (INR 24,470) for twenty‑four point four seven percent (24.47%) shares in Resilient Innovations Private Limited. The remaining equity shares were transferred by Mr. Koladiya by way of a separate agreement which is not part of the present dispute. The defendant further states that the plaintiff executed Form SH‑4 in favour of the defendant and that the purchase consideration was paid in cash at that time. The defendant contends that the plaintiff’s suit is baseless, that the purchase consideration has already been paid, and that the plaintiff has not produced any document showing a demand for payment. The defendant relies on a separate suit, Resilient Innovations Private Limited v. Madhuri Jain Grover and Others, CS (OS) No. 771 of 2022, pending before this Hon’ble Court, where it is stated that the defendant became a shareholder on 2 July 2018 by contributing INR 31,920 for three thousand one hundred and ninety‑two (3,192) shares, including the consideration of INR 24,470 for 2,447 shares and INR 7,450 for 745 shares., The written statement also draws attention to the minutes of the board meeting of Resilient Innovations Private Limited dated 2 July 2018, which record the approval of the transfer of 2,447 equity shares from the plaintiff to the defendant and authorize the directors to complete the transfer., It is further averred in the written statement that, in the above circumstances, the transaction conforms to Section 20 of the Sale of Goods Act, 1930, and that the property in the shares stood transferred to the defendant because the contract was unconditional, involved specific goods, and the goods were in a deliverable state. The plaintiff’s version is said to also conform to Section 20, but the reliefs sought are alleged to be contrary to the Sale of Goods Act, 1930, and the plaintiff is said to have lost his right of lien in respect of the shares., In the submissions of senior counsel for the plaintiff, it is contended that title in the shares was not transferred to the defendant on account of non‑payment of the sale consideration. Reference is made to various provisions of the Sale of Goods Act, 1930 to argue that payment of price, like delivery of goods, is a statutory condition of any contract of sale. It is further emphasized that, for determining whether property in goods has passed, the terms of the contract must be given precedence. Reliance is placed on Section 12(2) of the Sale of Goods Act to argue that a breach of a condition essential to the main purpose of the contract gives the innocent party the right to treat the contract as repudiated.
id_890	1	It is further contended that if the condition of the payment of price is breached by the buyer then the seller is an unpaid seller under Section 45 of the Sale of Goods Act. It is contended that the remedies of an unpaid seller who the property has not passed, are prescribed under Section 46(2) of the Sale of Goods Act which provides for the specific remedies which are in addition to the other remedies., Reliance is also placed on Benjamin's Sale of Goods, in which it has been stated as under: Although the seller may have delivered the goods to the buyer, he may be entitled to recover possession from the buyer under an express term of the contract; or where, before the property in the goods has passed to the buyer, he justifiably terminates the contract on account of the buyer's breach. When the buyer has possession of the goods but not the property in them, he is the bailee of the seller who may be entitled, either under the terms of the contract or under the ordinary law of contract, to determine the bailment and demand the immediate return of the goods, if the buyer commits a breach of his obligations under the contract., It is further contended that this remedy to seek return of goods is otherwise also provided in Section 65 of the Indian Contract Act, 1872 (hereinafter, the Indian Contract Act), which will also apply in view of Section 3 of the Sale of Goods Act which states that the provisions of the Indian Contract Act will apply, subject to inconsistency with the Sale of Goods Act. Once a contract, which is voidable at the option of a party, has been rendered void, the consequences under Section 65 of the Indian Contract Act would ensue., It is contended that the property in the plaintiff's shares cannot get transferred to the defendant without payment of the purchase consideration, given that the initial agreement, pursuant to which the plaintiff's shares were to be transferred to the defendant, was an agreement to sell., It is further submitted that the defendant has not filed any document or material to dislodge any onus which lies on him to prove that the cash was paid to the plaintiff then and there. As regards the execution of Form SH-4, it is contended that Form SH-4 (issued under Section 56 of the Companies Act, 2013) is a prescribed standard form which by itself is not proof of payment of cash, nor can it be said to be a receipt for cash payment. Since it is a prescribed form, no person can alter its contents. Therefore, even when consideration is not received, or is to be received on a future date, even then the form will reflect the words Consideration Received, although it may not have actually been received., It is further contended that records of a company which are maintained under the Companies Act, 2013, are not determinative in any manner whatsoever of the title in shares., Strong reliance is placed on Pawan Hans Helicopters v. Aes Aerospace Ltd., to contend that the title of the shares has not passed to the defendant., It is further contended that the defendant's averments regarding the conduct of the plaintiff remain to be tested at trial and not at the present stage, especially when there is no documentary proof produced by the defendant to establish payment of purchase consideration to the plaintiff. It is also submitted that in another suit filed by Mr. Bhavik Koladiya, in respect of the transfer of his shares to the defendant, the defendant has given undertaking that he will not, inter alia, deal with the disputed shares in any manner whatsoever during the pendency of that case. It is submitted that the plaintiff is seeking parity with the said order., As regards the various shareholder agreements in which the defendant has been shown to be a shareholder of the plaintiff's shares, it is contended that the said agreements do not give any representation to third parties with respect to the fact that the defendant is the legal owner of the shares in question., Finally, it is contended that irreparable injury shall be caused to the plaintiff if the interim injunction as sought is not granted. It is contended that the balance of convenience is in favour of the plaintiff., Per contra, learned counsel for the defendant has also extensively relied upon the various provisions of the Sale of Goods Act, 1930, to contend that a stipulation as to the time of payment is generally not considered a condition essential to the main purpose of the contract; it is contended that the Sale of Goods Act is replete with sections wherein the rights of the parties to postpone payment or postpone delivery without the postponement affecting passing of title is recognized., It is submitted that the plaintiff has not been able to demonstrate how a stipulation as to the time of payment of Rs. 24,470 was essential to the contract. It is further averred that the plaintiff's own legal notice dated 18.03.2023 states that you have even failed to pay the purchase consideration to our client within a reasonable period of time after the agreement was entered into. It is contended that this statement itself demonstrates that the plaintiff had agreed to postpone the receipt of consideration and hence the plaintiff's contention that the stipulation with respect to time of payment was a condition essential to the main purpose of the contract is clearly misconceived., It is further submitted that the plaintiff not only executed Form SH-4 but also executed a series of documentation recognizing the rights of the defendant. It is contended that the plaintiff never reserved any rights of disposal whatsoever but rather assented to the unconditional appropriation of the shares and further recognized the defendant as a member/shareholder on the basis of the shares purchased by the defendant from the plaintiff; Form SH-4 dated 02.07.2018 acts as a document of title to goods as defined in Section 2(4) of the Sale of Goods Act. This is why when a share transfer form is executed and also the transferee's name is recorded in the register of shareholders, then the inexorable conclusion is that the title of the shares has passed and the delivery of the shares has taken place and that the transfer is complete., Reliance is placed on the following observations in Howrah Trading Company v. Commissioner of Income Tax: The position of a shareholder who gets dividend when his name stands in the register of members of the company causes no difficulty whatever. But transfers of shares are common, and they take place either by a fully executed document such as was contemplated by Regulation 18 of Table A of the Indian Companies Act, 1913, or by what are known as blank transfers. In such blank transfers, the name of the transferor is entered, and the transfer deed signed by the transferor is handed over with the share scrip to the transferee, who, if he so chooses, completes the transfer by entering his name and then applying to the company to register his name in place of the previous holder of the share. The company recognises no person except one whose name is on the register of members, upon whom alone calls for unpaid capital can be made and to whom only the dividend declared by the company is legally payable. Of course, between the transferor and the transferee, certain equities arise even on the execution and handing over of a blank transfer, and among these equities is the right of the transferee to claim the dividend declared and paid to the transferor who is treated as a trustee on behalf of the transferee. These equities, however, do not touch the company, and no claim by the transferee whose name is not in the register of members can be made against the company, if the transferor retains the money in his own hands and fails to pay it to him., Reliance in this regard has also been placed on the judgment of the Supreme Court in Commissioner of Income Tax v. Bharat Nidhi Limited and Maneckji Pestonji Bharucha and Another v. Wadilal Sarabhai and Co., It is contended that in the present case, as can be seen from the averments in the suit, the contract has been performed in its entirety; the share transfer form namely Form SH-4 has been executed and further the name of the defendant has been entered into the register of shareholders. Hence, it is evident that the title to the shares had passed to the defendant. It is further a settled principle of law specifically in the context of the transfer of shares; where shares have been transferred (in the sense that the title to the shares has passed) and the consideration for such transfer has not been paid; the only remedy available to the seller is to sue for price., The defendant also relies upon the series of agreements whereby the plaintiff and the defendant sold their shareholding to external investors, in which the defendant has been duly reflected to be a shareholder. It is emphasized that there was no demur or protest whatsoever at any stage as regards the shareholding of the defendant in the concerned company., On the basis of the above, it is contended that the plaintiff has failed to make out a prima facie case. It is further stated that the balance of convenience is also not in favour of the plaintiff and it is in fact the defendant who will suffer an irreparable loss if any injunction was to be granted to the plaintiff., Analysis and Conclusion: Having considered the respective submissions made on behalf of the parties, I find no merit in the case set up by the plaintiff for the purpose of the reliefs sought in the present application. The reasons are enumerated hereunder. Documentation issued in respect of the transfer of shares to the defendant; delivery of the shares and the subsequent conduct of the parties., It is the plaintiff/applicant's own case in the plaint that it entered into an agreement with the defendant for transfer of 2247 equity shares in RIPL together with all rights attached to them (plaintiff's shares) and to this end, an agreement is stated to have been arrived at between the parties on 02.07.2018. On the same day, the plaintiff admittedly executed a Form SH-4 in favour of the defendant in respect of the plaintiff's shares. The said Form SH-4, as duly executed between the parties, has been reproduced hereinabove. A perusal of the same reveals that it clearly sets out the distinctive number of shares, the full name and particulars of the transferor and the transferee and details of the consideration received. The averment made in the plaint to the effect that although in the duly executed Form SH-4, consideration has been reflected to have been received, even though the plaintiff had not, as a matter of fact, received such consideration, is in utter contradiction to what is expressly recorded in the duly executed Form., It is notable that Form SH-4 has been prescribed under the Companies (Share Capital and Debentures) Rules, 2014. Rule 11 thereof provides as follows: (1) An instrument of transfer of securities held in physical form shall be in Form No. SH-4 and every instrument of transfer with the date of its execution specified thereon shall be delivered to the company within sixty days from the date of such execution. (2) In the case of a company not having share capital, provisions of sub‑rule (1) shall apply as if the references therein to securities were references instead to the interest of the members in the company. (3) A company shall not register a transfer of partly paid shares, unless the company has given a notice in Form No. SH-5 to the transferee and the transferee has given no objection to the transfer within two weeks from the date of receipt of the notice., Thus, the information which is incorporated in Form SH-4 is statutorily mandated; there is also a statutory presumption that the correct information has been mentioned., It is also relevant to note that under Section 88 of the Companies Act, 2013 read with the Companies (Management and Administration) Rules, 2014, companies are obliged to maintain a register of members for each class of equity shares. Under Rule 5(1) of the Companies (Management and Administration) Rules, 2014, the entries in the registers maintained under Section 88 of the Companies Act shall be made within seven days after the Board of Directors or its duly constituted committee approves the allotment or transfer of shares/debentures or any other securities, as the case may be., It is thus evident that the transfer of shares in favour of the defendant and the consequent entry/recordal of the defendant as a shareholder of the concerned company was pursuant to approval by the Board of Directors or a duly constituted committee of the said Board. The Board Resolution dated 02.07.2018, which was admittedly passed in the present case, has been reproduced hereinabove., It is also notable that Rule 3(1) and Rule 3(2) of the Companies (Management and Administration) Rules, 2014, inter alia, provide as follows: (1) Every company limited by shares shall, from the date of its registration, maintain a register of its members. (2) In the case of a company not having share capital, the register of members shall contain the following particulars, in respect of each member, namely: (a) name of the member; address (registered office address in case the member is a body corporate); e‑mail address; Permanent Account Number or CIN; Unique Identification Number, if any; father's/mother's/spouse's name; occupation; status; nationality; in case the member is a minor, name of the guardian and the date of birth of the member; name and address of nominee; (b) date of becoming member; (c) date of cessation; (d) amount of guarantee, if any; (e) any other interest if any; and (f) instructions, if any, given by the member with regard to sending of notices etc., It is not the plaintiff's case that the defendant has not been reflected in the register of members maintained by the concerned company in the statutorily prescribed Form MGT-1 for the entire period after July 2018 till date., Further, Rule 8 of the Companies (Management and Administration) Rules, 2014 provides as follows: (1) The entries in the registers maintained under section 88 and index included therein shall be authenticated by the Company Secretary of the company or by any other person authorised by the Board for the purpose, and the date of the Board Resolution authorising the same shall be mentioned. (2) The entries in the foreign registers shall be authenticated by the Company Secretary of the company or person authorised by the Board by appending his signature to each entry., Thus, any entry in the register of shareholders of a company is statutorily required to be authenticated in the manner prescribed in the aforesaid rule. There is a statutory presumption that such authentication was carried out in the present case, during which process there is no plea of any doubt being expressed or any objection being raised by the plaintiff or any other person as to the inclusion of the defendant in the register of members of the concerned company., Thus, the transfer of shares in favour of the defendant and the subsequent inclusion of the defendant in the register of members of the plaintiff was pursuant to a statutorily recognised process. For the purpose of the present application, there can be no presumption against the validity of the transfer in favour of the defendant pursuant to a statutorily mandated process, especially when the execution of Form SH-4 by the plaintiff is admitted and it is not the case of either of the parties that the concerned company has not adhered to the provisions of the Companies (Management and Administration) Rules, 2014 and the Companies (Share Capital and Debentures) Rules, 2014., The law regarding the manner of effectuating transfer of title of shares is also no longer res integra and has been the subject matter of numerous judicial pronouncements., In Maneckji Pestonji Bharucha and Another v. Wadilal Sarabhai and Co., the Privy Council was concerned with a situation where blank transfer forms had been executed by the registered holders of shares of a company. In that context, it was observed by the Privy Council as follows: So soon, therefore, as Arajania, acting for Bharucha, handed Gora the certificates and transfers and Gora accepted them and gave the cheque, the goods became ascertained goods, the sale was complete and the property passed. From that time onward Bharucha and Arajania could only sue Gora on the cheque, or for the price of the shares unpaid in respect that the cheque had not been honoured. They had no longer any jus in re of the certificates and transfers. They had no statutory lien, for they had parted with possession, and, consequently, as they had no contract with Defendants Nos. 2 and 3, they could not sue them for delivery of the shares, whether the Defendants had got good title as against Gora or had not., The said judgment was cited with approval in Commissioner of Income Tax, Delhi (Central) v. M/s Bharat Nidhi Ltd., (1982) ILR 1 Delhi 64. In that case, the Court was concerned with the issue whether transfer of shares could be effectuated without delivery of the shares and without execution of a share transfer form. It was held that for the purpose of a valid transfer, there must be a valid transfer form, wherein the shares must be specified by serial numbers. The Court noticed the judgment of this Court in Seth R. Dalmia v. Commissioner of Income Tax, (1971) ILR 1 Delhi 30(4), wherein it was held that even execution of a blank transfer form would result in transfer of equitable ownership of the shares, and that the transfer would be complete once the name of the transferee is entered in the registers of the company., Goods are movable property in terms of the Sale of Goods Act. When and at what time property can pass on to the buyer is laid down in Chapter III. Section 19 provides that where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred; and for the purpose of ascertaining the intention of the parties to the contract regard shall be had to the conduct of the parties. Sub‑section (2) of Section 19 elaborates that the rules in Sections 20 to 24 are to be looked at for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Section 21 provides that where there is a contract for the sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state the property does not pass unless such thing is done and the buyer has notice thereof., The Tribunal has, however, not referred to Section 21 because according to it Section 20 which provides that if there is an unconditional contract for the sale of specific goods in a deliverable state the property in goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or time of delivery of the goods, is postponed and opined that the mere fact that the payment was not made on 5‑2‑1948 or that the delivery of shares was not made does not mean that the property did not pass on to the buyers in February 1948. This however omits to notice that in terms of Section 21 unless shares were specified by serial numbers which can be identified it cannot be said to be a contract for sale of specified goods as contemplated by Section 21 of the Act, as they would remain unascertained., It is by now well established that only a person who is on the register is in the full sense of the word the owner of the share. But the title to get on the register consists in possession of a certificate together with transfer signed by the registered holder. An agreement to transfer shares in a company accompanied with the actual instrument of transfer which has not been completed as far as the transferor could complete it does not amount to a transfer deed sufficient to cause title to pass. By itself it would be nothing more than an enforceable agreement to convey and until the transfer endorsement is signed the shares would be unascertained goods and would not be in a deliverable state., In what circumstances legal ownership or equitable ownership passes to the buyer has been the subject matter of a good deal of case law. The bench accepted that equitable ownership could pass but held that the equitable ownership shares can be transferred by the owner by signing a blank transfer form and handing over the share scrips to the transferee. The bench observed: It would, therefore, follow that equitable ownership in shares can be transferred by the owner by signing a blank transfer form and handing over that transfer form along with the share scrips to the transferee. So far as the company of which the shares are the subject matter of transfer is concerned, it would not recognise the transferee as the owner of the shares till such time as the transfer is registered and the name of the transferee is entered in its registers as the owner of those shares., In the present case admittedly there is not even a suggestion that any transfer forms or the share scrips were handed over to Mrs. Jain or Mr. Dalmia by the assessee. The argument, therefore, that equitable ownership in the shares was transferred to the assessee on 5‑2‑1948 must be repelled. That without the specification of the shares the contract for sale for specific goods as contemplated by Section 21 of the Sale of Goods Act cannot be held to be complete was also accepted by the said Division Bench. We can find no difference at all not only on the points of law but frankly more or less even on the question of facts, between the instant case and the above case., Again, in Howrah Trading Co. Ltd. v. Commissioner of Income Tax, Central, Calcutta, it was, inter alia, held as follows: The position of a shareholder who gets dividend when his name stands in the register of members of the company causes no difficulty whatever. But transfers of shares are common, and they take place either by a fully executed document such as was contemplated by Regulation 18 of Table A of the Indian Companies Act, 1913, or by what are known as blank transfers. In such blank transfers, the name of the transferor is entered, and the transfer deed signed by the transferor is handed over with the share scrip to the transferee, who, if he so chooses, completes the transfer by entering his name and then applying to the company to register his name in place of the previous holder of the share., Thus, even in the case of a blank transfer form being executed, the transferee is entitled to complete the transfer by entering his name and then applying to the company to register his name in the name of a previous holder of the shares. The present case stands on a much higher footing inasmuch as the transfer of shares has been effectuated by following the rigours prescribed in the Companies Act and the statutory Rules framed thereunder. This has not been controverted in the plaint., The subsequent conduct of the parties pursuant to the transfer is also of vital importance in the present case inasmuch as after the transfer was effectuated in favour of the defendant, in the ensuing years, a series of agreements (sixteen in number) were entered into wherein the plaintiff and the defendant sold their shareholdings to external investors. It has been submitted by the learned counsel for the defendant that in respect of these sixteen agreements, a sum of nearly Rs. 4,500 crores (Rupees Four Thousand Five Hundred Crores) was infused into the company. In addition, the plaintiff was also paid a personal consideration of nearly Rs. 40 crores by various external investors., Admittedly, in all these agreements, to which both the plaintiff and the defendant were parties, the defendant was represented to be a shareholder of the concerned company. It is completely untenable for the plaintiff to suggest that the defendant was wrongly portrayed as a shareholder in all these agreements or that the plaintiff was induced to sign these agreements., The contention on behalf of the plaintiff that the title in the concerned shares never passed to the defendant on account of non‑payment of consideration and therefore it is permissible for the plaintiff, at this stage, to repudiate the contract for sale of shares, is also liable to be rejected, inasmuch as the same is contrary to the scheme of the Sale of Goods Act., There is no quarrel with the proposition that title in goods (which include shares) is transferred from the seller to the buyer only on sale of goods. This position has been affirmed by the Supreme Court in Arihant Udyog v. State of Rajasthan, wherein it has been observed as follows: Section 20 deals with a situation where specific goods are in a deliverable state. In that case property in goods passes to the buyer when the contract is made, even when time of payment of the price or the time of delivery of the goods, or both is postponed. In order that Section 20 is attracted, two conditions have to be fulfilled: (i) the contract of sale is for specific goods which are in a deliverable state; and (ii) the contract is an unconditional contract. If these two conditions are satisfied, Section 20 becomes applicable.
id_890	2	Section 21 is an exception to Section 20 which states that where there is a contract for sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such a thing is done and the buyer has notice thereof. Likewise, Section 22 carves out another exception and mentions that even when the specific goods are in a deliverable state but the seller is bound to weigh, measure, test or do some other act with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act is done and the buyer has notice thereof. Section 23 deals with sale of uncertain goods and appropriation, which is not concerned here. Likewise, Section 24 deals with a situation where goods are sent on approval or on sale or return basis, which is also not relevant for our purposes., A conjoint reading of the aforesaid provisions makes it clear that title in goods is transferred from the seller to the buyer only on the sale of goods. When such a sale fructifies and the property passes is to be ascertained from the intention of the parties having regard to the terms of the contract. If no such intention can be gathered from the terms of the contract, the property in goods passes where the goods are in a deliverable state and there is an unconditional contract for sale of specific goods., There is also no quarrel with the proposition that a contract of sale of goods involves (i) transfer of property in the goods to the buyer, and (ii) payment of price or consideration by the buyer to the seller. These are two ingredients of every contract or agreement for sale of goods. However, the validity or existence of a valid contract for sale of goods is not dispelled merely on account of the fact that the time of payment of price or the time of delivery of the goods is postponed. This is evident from the following provisions of the Sale of Goods Act: Section 5 (Contract of sale how made) states that a contract of sale is made by an offer to buy or sell goods for a price and the acceptance of such offer. The contract may provide for immediate delivery of the goods or immediate payment of the price or both, or for delivery or payment by instalments, or that the delivery or payment or both shall be postponed. Subject to the provisions of any law for the time being in force, a contract of sale may be made in writing or by word of mouth, or partly in writing and partly by word of mouth or may be implied from the conduct of the parties. Section 11 (Stipulations as to time) provides that unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence depends on the terms of the contract. Section 19 (Property passes when intended to pass) states that where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case. Unless a different intention appears, the rules contained in Sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Section 20 (Specific goods in a deliverable state) provides that where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed., Although payment of price to the seller is a mandatory condition of any contract for sale of goods, a contract for sale of goods and transfer of title can fructify even where the time of payment of price or the time of delivery of goods, or both, is postponed. The statutory provisions therefore repel the contention of the plaintiff that in the present case non‑payment or postponement of the payment of the price by itself leads to the inference that the contract of sale of shares did not fructify., Under the statutory framework, for the purpose of passing of title, what is relevant is whether the contract for sale of goods has been concluded, and it is immaterial whether the time of payment of price or the time of delivery of goods or both is postponed. The above position has also been affirmed in paragraphs 19 to 22 of the judgment of the Supreme Court of India in Arihant Udyog v. State of Rajasthan. Thus, what is of relevance in the present case is the conclusion of the contract for sale of shares and not whether payment or delivery or both have been postponed. Once the contract for sale of shares is concluded, the rights of an unpaid seller are circumscribed under Section 46 of the Sale of Goods Act., Section 46 (Unpaid seller's rights) provides that, subject to the provisions of this Act and any law for the time being in force, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law (a) a lien on the goods for the price while he is in possession of them; (b) in case of the insolvency of the buyer, a right of stopping the goods in transit after he has parted with possession of them; and (c) a right of resale as limited by this Act. Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and co‑extensive with his rights of lien and stoppage in transit where the property has passed to the buyer., Section 46(1)(a) clarifies that an unpaid seller retains a lien on the goods for the price while he is in possession of them. The plaintiff in the present case is no longer in possession of the shares, the same having been delivered to the defendant pursuant to execution of Form SH‑4. Section 46(2) deals with a situation where property in the goods has not passed to the buyer in terms of a contract of sale., Section 47 (Seller's lien) provides that, subject to the provisions of this Act, the unpaid seller of goods who is in possession of them is entitled to retain possession until payment or tender of the price in the following cases: (a) where the goods have been sold without any stipulation as to credit; (b) where the goods have been sold on credit but the term of credit has expired; and (c) where the buyer becomes insolvent. The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee for the buyer. This provision is applicable only when an unpaid seller is in possession of the concerned goods., For the purpose of the present application, the plaintiff contends that title in the goods has not passed to the defendant despite the fact that (i) the shares have been delivered to the defendant; (ii) Form SH‑4 was duly filled up and executed at the time when the contract was entered into, specifically mentioning details of consideration received and the distinctive numbers of the shares; (iii) the recordal of transfer of shares in favour of the defendant was completed in July 2018 pursuant to a board resolution passed by the concerned company, which was well within the knowledge of the plaintiff; and (iv) the defendant's ownership in respect of the shares has since been reflected in numerous agreements with third parties to which the plaintiff himself was a party., Even assuming that a sum of Rs 24,470 was not paid at the time of execution of Form SH‑4, it is evident from the plaintiff's own legal notice dated 18 March 2023 that it agreed to postpone the receipt of consideration. The legal notice inter‑alia states that the plaintiff has even failed to pay the purchase consideration to the client within a reasonable period of time after the agreement was entered into. Thus, the fact of postponement of receipt of sale consideration is admitted. The statutory position, as set out above and also noted in Arihant Udyog, is clear that mere postponement of payment of price does not dispel the existence of a valid contract of sale and passing of title thereunder. At best, the plaintiff has a right to sue for the unpaid consideration and/or claim damages., In Suraj Enterprises v. Official Liquidator of Wood Polymers Ltd., it was held that the unpaid seller of goods loses his lien when he delivers the goods and the buyer obtains lawful possession. Hence, when the vendor has given the buyer possession under the contract of sale, all his rights in the goods are completely gone; he must recover the price as he would recover any other debt, and has no longer any claims on the goods sold superior to those of any other creditor. The delivery and acceptance of possession complete the sale and give the buyer absolute, unqualified and indefeasible rights of property and possession in the things sold, though the price be unpaid and the buyer insolvent unless the whole transaction is vitiated by actual fraud., The fact that the sale and transfer of shares stands concluded in the present case is also evident from the absence of any reservation of right of disposal in favour of the seller. Section 25 of the Sale of Goods Act, 1930 provides that where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. Notwithstanding delivery of the goods to a buyer, a carrier or other bailee for transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled., In Pawan Hans Helicopters v. AES Aerospace Ltd., this Court considered a situation where the contract expressly stipulated that title in the goods would pass only on the purchaser making full payment of consideration. Clause 7 of the addendum dated 24 September 1999 specifically stipulated that title in the goods would pass to the purchaser once the full payment of GBP 9,00,000 under the agreement is received by the vendor upon delivery of the package FOB Mumbai for shipment to the United Kingdom. The judgment held that unless and until the purchaser received the full price, the property in the goods would not pass to the respondent and would continue to vest in the petitioner, in accordance with Section 19 of the Sale of Goods Act., The aforesaid judgment therefore supports the defendant's case rather than the plaintiff's, as there is nothing to indicate that the property in the shares would pass to the defendant only upon receipt of the full price., In Uday Punj v. Commissioner of Income Tax, the Court considered when a contract for sale of shares could be considered concluded. The Court held that once the shares were transferred from the demat account of the appellant to the demat account of the Registrar to the issue, they were in a deliverable state and, therefore, on allotment of shares to the applicants in the public issue, or on credit of shares in their demat account, the ownership rights in the shares stood transferred to the applicants. The fact that the sale consideration had not been transferred to the appellant's bank account was wholly irrelevant as far as passing of property in the shares was concerned., As such, prima facie there is no merit in the plaintiff's contention that the contract for sale of shares did not fructify under the Sale of Goods Act, 1930, or that title therein did not pass to the defendant., Learned counsel for the defendant drew attention to the civil suit CS(OS) 711/2022, captioned Resilient Innovations Pvt. Ltd. v. Madhuri Jain Grover & Ors., where the plaintiff, as authorized representative of the plaintiff company, affirmed that the plaintiff had been paid the purchase consideration by the defendant. The suit states that Defendant No. 2 became a shareholder of the plaintiff by contributing INR 31,920 against which 3,192 shares were transferred, and that the defendant was subsequently appointed as a director and CEO of the plaintiff., The plaintiff verified the pleadings, stating that Shashvat Mansukhbhai Nakrani, the authorized signatory of the plaintiff, solemnly affirms that the statements contained in paragraphs 01 to 178 of the plaint are true to his knowledge. An affidavit dated 6 December 2022, also sworn by Shashvat Mansukhbhai Nakrani, confirms that he is the authorized signatory of the plaintiff and that the statements in the plaint have been drafted under his instructions and are true and correct to the best of his personal knowledge., The submissions of the learned counsel for the defendant highlight that the pleadings in the present suit are in direct and utter contradiction to the position admitted in CS(OS) 711/2022, where it was categorically admitted that the defendant became a shareholder by contributing INR 31,920 and was transferred 3,192 shares. Thus, the extent of the defendant's shareholding stands admitted, and this aspect also disentitles the plaintiff to any interim relief., For all the aforesaid reasons, the Supreme Court of India is not inclined to grant an interim injunction in favour of the plaintiff/applicant. However, considering that the shares of the defendant are the subject matter of the present suit and that the plaintiff has also made an alternative prayer seeking damages, the Court directs that if the defendant proposes to transfer, deal with, or alienate the shares, prior intimation together with details of any such proposed transaction shall be provided to the Court., The application stands disposed of with the aforesaid directions. The observations made herein are only for the purpose of deciding the present application.
id_891	0	ks WPA 6555 of 2023 sl Harish Chandra Gain & Ors. Vs The State of West Bengal & Ors. Pabitra Charan Bhattacharjee, Chandan Kumar Lal For the Petitioners. Pradip Kumar Roy, Prabir Kumar Ray, Joydeep Roy For the State. Subrata Kumar Basu, Sounak Sen For the Respondent Nos. 3 & 4. Senjuti Sengupta, Rananeesh Guha Thakurta, Dipa Roy For the Respondent Nos. 5 & 6. Arnab Ray For the Respondent Nos. 7 & 8. Heard learned Advocates appearing for the respective parties., It appears from the cause title of the writ petition that this writ petition has been filed by 19 petitioners on 23 March 2023, claiming to be the members of the Cooperative Society in question by executing proper Vakalatnama in favour of the learned Advocate Pabitra Charan Bhattacharjee to file this writ petition. This writ petition has been affirmed by one Harish Chandra Gain who is the writ petitioner No.1 affirming the affidavit to the writ petition by making the statement that he has been duly authorised by all other 18 petitioners., Mr Subrata Kumar Basu, learned Advocate representing the Co‑operative Society concerned, the respondents Nos. 3 and 4, has drawn the attention of the Calcutta High Court by placing a document (death certificate issued by the Sub‑Registrar (Birth & Death), Grama Panchayat Mohanpur) showing that the writ petitioner No.17 had died on 5 February 2021, and he submits that this writ petition has been filed in the name of a deceased person, respondent No.17, by forging his signature in the Vakalatnama., He also submits that out of the other 18 petitioners, eight petitioners have not authorised petitioner No.1 to file this writ petition and affirmed on their behalf. This is a serious criminal offence committed before the Calcutta High Court by filing this fake writ petition in the names of those persons by forging their signatures who have not authorised petitioner No.1 to file this writ petition on their behalf., Learned Advocate representing respondents Nos. 3 and 4, on the basis of materials before him, submits that at least eight of those petitioners have specifically declared before him that they do not even know that this writ petition has been filed in their names., Taking note of such serious criminal act committed in court by petitioner No.1 and possibly any other person along with him, the Additional Director General of Police, Criminal Investigation Department, West Bengal is directed to initiate appropriate criminal proceedings and hold a full‑fledged investigation against all persons involved in such criminal offence, to take suitable action and to file an investigation report in court on 12 April 2023 and also as to the action taken. Such investigation shall be conducted under his supervision., The matter shall be listed on 12 April 2023 under the heading ‘For Orders’. The Learned Registrar General, Calcutta High Court, shall immediately communicate this order along with a copy of the writ petition to the Additional Director General of Police, Criminal Investigation Department, West Bengal.
id_892	0	Crime and punishment is something which has agitated the judicial minds. Punishment cannot be disproportionately high or low. It should not be oppressive, but should serve the purpose of deterrence against crimes in a society along with a sense of justice to the victim and their family. This is a delicate balance, which has to be kept in mind and was recently discussed in the judgment of the Supreme Court of India in Jaswinder Singh (Dead) Through Legal Representative v. Navjot Singh Sidhu & Ors. As was observed in the said case, the principle of just punishment is the bedrock of sentencing in respect of a criminal offence., Abu Salem Abdul Kayyum Ansari has a history that is not palatable. He has been a part of a crime syndicate as is obvious from the facts of the two criminal appeals before this Court. Criminal Appeal No. 679/2015 emanates from threatening a party in a civil dispute relating to a property and extracting money, which under threat was conceded by the litigating party, i.e., the Jain brothers. On failure to make the payment of some instalments of the threatened money, one of the Jain brothers, Pradeep Jain, was murdered on 07 March 1995. As a result the crime was registered at D.N. Nagar Police Station under Sections 302, 307, 452, 506(ii) read with Section 120‑B of the Indian Penal Code, 1860, read with Sections 5, 27 of the Arms Act, 1959, read with Sections 3(2)(i), 3(2)(ii), 3(5) and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987., The second Criminal Appeal No. 180/2018 deals with the factual scenario where the very foundation of the civil society of our country was threatened and disrupted by bomb explosions at vital Government installations, public and crowded places in Mumbai and its suburbs, commonly known as the Bombay Bomb Blasts. Loss of life and loss of property in enormous amount was the result. The appellant was alleged to have stored, distributed and transported illegally smuggled AK‑56 rifles, hand grenades as well as boxes of magazines from a godown in Gujarat to Mumbai in a Maruti van which had specially crafted secret cavities, and all this was done after conspiratorial meetings relating to the blasts. In order to evade the penal consequences of his actions, the appellant left Mumbai and later entered Portugal under an assumed name on a Pakistani passport, which reflects from where the conspiracy and support may have emanated., The appellant could not be arrested for his crime having moved out of the country during the course of the investigation and, thus, the Designated Court, Mumbai issued Proclamation No. 15777 of 1993 against him on 15 September 1993. As the appellant did not appear before the court, he was declared a proclaimed offender on 15 October 1993. He was shown as an absconder in the chargesheet dated 04 November 1993. Thereafter, a common charge of conspiracy was framed by the Designated Court, Mumbai against all the accused persons on 10 April 1995. The Designated Court, Mumbai issued a non‑bailable warrant against the appellant and Interpol Secretariat General, Lyons, France also issued a Red Corner notice for his arrest on 18 September 2002., The appellant, having travelled on a fake passport to the Republic of Portugal, was charged with the same and convicted and sentenced on 18 September 2002. The said sentence would have been completed on 18 March 2007 without taking into consideration any remission, commutation or conditional release. The fact remains that the appellant served the sentence from 18 September 2002 to 12 October 2005 when he was granted conditional release for the remaining term., It is during this period of detention that on 18 September 2002 the appellant was also formally detained (already in custody) by the Portuguese Police in Lisbon on the basis of the Red Corner notice. To complete the period of detention, he was again imprisoned from 12 October 2005 till 10 November 2005 for a month when he was handed over to the Indian authorities., The Government of India through Mr. Omar Abdullah, who was the then Minister of State for External Affairs, submitted a requisition for extradition dated 13 December 2002 to Portugal in nine criminal cases relying on the International Convention for the Suppression of Terrorist Bombings and on an assurance of reciprocity as applicable in international law. Along with the requisition, relevant facts of the cases were enclosed in the form of duly sworn affidavits of the concerned police officers along with supporting documents. Subsequently, the Government of India issued a notification under Section 3(1) of the Extradition Act, 1962 applying the provisions of the Extradition Act to Portugal with effect from 13 December 2002., The Government of India further gave a solemn sovereign assurance on 17 December 2002 through the then Deputy Prime Minister, Shri L. K. Advani, to the effect that the Government will exercise its powers conferred by Indian law to ensure that if extradited by Portugal for trial in India, the appellant would not be visited by the death penalty or imprisonment for a term beyond twenty‑five years. The assurance reproduced Section 34C of the Extradition Act, mandating that in case of extradition of a fugitive criminal involved in the commission of offences punishable with death in India, on his surrender he shall not be liable for death penalty and shall be liable for punishment of life imprisonment in place of death penalty for the said offence. The sovereign assurance also referred to Article 72(1) of the Constitution of India to emphasise that the President of India has power to grant pardon, reprieve, respite, or remit punishment or suspend, remit or commute the sentence of any person convicted of any offence. Lastly, the assurance mentioned that Sections 432 and 433 of the Code of Criminal Procedure, 1973, which confer power on the Government to commute the sentence of life imprisonment to a term not exceeding fourteen years, were applicable., The Ministry of Justice, Portugal, by its order dated 28 March 2003, admitted the appellant’s extradition for offences such as, inter alia, Section 120‑B read with Section 302 of the Indian Penal Code and Section 3(2) of the Terrorist and Disruptive Activities (Prevention) Act. The ministerial order, however, declined extradition for offences such as Sections 201, 212, 324, 326 and 427 of the Indian Penal Code, Sections 3(4), 5 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, Sections 4 and 5 of the Explosive Substances Act, 1908, Section 9B of the Explosive Act, 1984 and Sections 25(1‑A) and (1‑B) of the Arms Act., The Ambassador of India in Lisbon gave another solemn assurance on 25 May 2003 that if the appellant is extradited, then (i) he will not be prosecuted for offences other than those for which the extradition was sought, and (ii) he will not be extradited to any third country., The appellant preferred an appeal against the ministerial order dated 28 March 2003 before the Court of Appeal, Lisbon and the said Court, by order dated 14 July 2004, allowed the appellant’s extradition for offences mentioned in the request, except those which are punishable with death or life imprisonment. The Supreme Court of Portugal confirmed the aforesaid order of the Court of Appeal, Lisbon on 27 January 2005 in view of the assurance given by the Government of India that the person extradited would not be visited with death penalty or imprisonment for a term beyond twenty‑five years. The Courts in Portugal granted extradition for the following offences: (i) criminal conspiracy punishable under Section 120‑B of the Indian Penal Code (death penalty); (ii) murder punishable under Section 302 of the Indian Penal Code (death penalty); (iii) attempt to murder punishable under Section 307 of the Indian Penal Code (imprisonment for life); (iv) mischief punishable under Section 435 of the Indian Penal Code (imprisonment for seven years); (v) mischief by fire or explosive punishable under Section 436 of the Indian Penal Code (imprisonment for life); (vi) offence punishable under Section 3(2) of the Terrorist and Disruptive Activities (Prevention) Act (death penalty); (vii) offence punishable under Section 3(3) of the Terrorist and Disruptive Activities (Prevention) Act (life imprisonment); (viii) offence punishable under Section 3 of the Explosive Substances Act, 1908 (life imprisonment); (ix) offence punishable under Section 4 of the Prevention of Damage to Public Property Act (imprisonment for ten years). The Supreme Court of Portugal, while emphasising the principle of speciality, stated that it could not be suspected that the appellant would be subjected to trial for offences not included in the extradition request., The consequence of the failure of the Indian Government to fulfil its undertaking to impose a sentence as submitted in its assurance was specified in the order dated 27 January 2005, i.e., Portugal could, either officiously or upon the interested party’s request, timely demand the devolution of the appellant. The Court specifically observed in paragraph 12.2 of its judgment that the Government of India cannot guarantee that the sentence as assured by the Government of India will be applied by the Courts in India, in view of the Indian judicial system where the Courts are independent of the Executive. Hence, the Court stated that it could only request a guarantee that should such sentence be imposed, in order to restrict the sentence, it will resort to all legal measures available, the description of which had already been set out in the request letter., The custody of the appellant was handed over to the Indian authorities on 10 November 2005. The appellant was extradited to India from Portugal on 11 November 2005 and was arrested on 24 November 2005. On 9 December 2005, the Designated Court, Mumbai altered the common charge of criminal conspiracy by adding the appellant’s name in the list of the accused persons before the court, by deleting his name from the list of absconding accused in the said charge. That brought to an end the saga of ensuring that the appellant is brought back to India and is tried and sentenced for what he had done., It is not necessary, in view of the limited pleas urged and examined in this case, to get into a further detailed examination of facts and evidence. By Criminal Appeal No. 990 of 2006, the appellant first assailed the order dated 13 June 2006 of the Designated Court, Mumbai, which had separated the trial of the appellant from the main trial, as well as a prior order dated 18 March 2006 of the Designated Court, Mumbai, where substantive charges were framed against the appellant for different offences relating to the Indian Penal Code and the Terrorist and Disruptive Activities (Prevention) Act. In addition, Criminal Appeals Nos. 1142‑1143 of 2007 were filed against the order framing charges dated 16 April 2007. A writ petition was also filed seeking quashing of charges and proceedings against him on the ground that the trial for offences for which he has specifically not been extradited is violative of the fundamental rights enshrined under Article 21 of the Constitution of India. This was coupled with the appellant moving an application before the Court of Appeal, Lisbon which was predicated on the violation of the assurance given by India as he was sought to be tried in India in violation of the principle of speciality., The Court of Appeal in Lisbon passed an order dated 18 May 2007, opining that it did not have the competence to order the devolution of the appellant, and observed that if the alleged violations were confirmed, it could only justify the accountability of the State (India) at an international level, which does not depend on the action of any Portuguese Court and adequate use of defence by the appellant under Indian law. On appeal to the Supreme Court of Portugal, the matter was remitted to the Court of Appeal, Lisbon by an order dated 13 December 2007 to enquire whether violation of the principle of speciality had taken place. It further opined that if any violation did take place, the Court of Appeal, Lisbon would extract all due consequences such as declaring the termination of the authorisation for extradition, in which case the presence of the appellant in India would have to be considered illegal. However, the Court of Appeals, Lisbon considered it appropriate to defer consideration of the matter till the Supreme Court of India passed a final order in the aforementioned appeals and the writ petition. The Supreme Court of India passed a common order dated 10 September 2010 with respect to the aforementioned appeals and the writ petition and observed that Portugal had not included certain offences for which charges had been framed against the appellant by the Designated Court, Mumbai. However, it opined that a bare reading of Section 21 of the Extradition Act indicated that the appellant could be tried for lesser offences, in addition to the offences for which he had been extradited. These additional charges were punishable with lesser punishment than the offence for which he had been extradited and, thus, these lesser offences could not be equated with the term ‘minor offence’ as mentioned in Section 222 of the Code of Criminal Procedure. The opinion given was that there had been no violation of the principle of speciality and the solemn sovereign assurance given by the Government of India in the letter by the Indian Ambassador dated 25 May 2003., On the aforesaid opinion being delivered by the Supreme Court of India, the Court of Appeal, Lisbon in its order dated 14 September 2011 held that the authorisation granted for the appellant’s extradition ought to be terminated. It was also held that while not considering the limits imposed by Portugal on the appellant’s extradition, India had violated the principle of speciality. If the extradition for certain crimes was not admissible in the ministerial order dated 28 March 2003 due to lapses of the criminal cases, then India could not impute and try the appellant for identical crimes at a subsequent time, even if it is well founded on different facts. The Court further opined that Law 144/99 of 31 August does not anticipate any specific consequences for violation of the principle of speciality; however, this did not prevent Portugal from calling for intervention of instances of international jurisdiction, drawing due political conclusions from the case, and reacting through political‑diplomatic channels, for which the judgment passed by the Portuguese Courts would be relevant. However, crime punishable under Section 3(3) of the Terrorist and Disruptive Activities (Prevention) Act had not been expressly or implicitly excluded by Portugal in the appellant’s extradition and, thus, the same could be imputed on the appellant without violation of the principle of speciality laid down in Article 16 of Law 144/99 of 31 August, which reads as under:, The Union of India filed an appeal before the Supreme Court of Portugal, which was dismissed on 11 January 2012 as the Court observed that the non‑observance of the principle of speciality requires two orders of consequences in the ambit of international relations: first, the mistrust on a State that does not have a credible and reliable behaviour in its international relations, and second, a discredit of the judicial power that is used by the institution of extradition in a duplicity manner, generating doubts on the administration of justice. A further appeal before the Constitutional Court of Portugal was also dismissed on 5 July 2012 and, thus, the termination of the appellant’s extradition attained finality. There rests the story of the extradition proceedings in Portugal., However, the appellant filed Criminal Appeal Nos. 415‑416 of 2012 before the Supreme Court of India challenging the order of the Designated Court, Mumbai dated 8 November 2011, which had dismissed the applications filed by the appellant for stay of all further proceedings in view of the order dated 14 September 2011 passed by the Court of Appeals, Lisbon treating the extradition order dated 28 March 2003 as having been withdrawn. The appeals were still pending when the Central Bureau of Investigation filed an application for clarification/modification of the judgment and order dated 10 September 2010 of the Supreme Court of India and prayed for permission to withdraw certain charges levelled against the appellant. The CBI submitted that in the interest of comity of courts and united fight at international level against global terrorism, the Government of India was making further efforts through diplomatic talks and the additional charges framed against the appellant might come as an impediment in furthering such diplomatic talks. The application of the CBI was allowed by the Supreme Court of India in terms of its order dated 5 August 2013 to the extent of withdrawal of additional charges under Sections 3(3), 5 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, Sections 4(b) and 5 of the Explosive Substances Act, Sections 25(1‑A), (1‑B)(a) read with Section 387 of the Arms Act, as well as Section 9‑B of the Explosives Act, 1884. The Court observed that the offences for which the appellant was extradited to India are grave enough to award the appellant with maximum punishment and, therefore, it would not be detrimental to any of the parties. This Court also held that the ministerial order dated 28 March 2003 stands valid and effective in the eyes of law and that the Portugal Courts had categorically stated that the Portuguese law does not provide for any specific consequence for violation of the principle of speciality. Thus, the findings of the Portugal Courts may not be construed as a direction to the Union of India to return the appellant to Portugal but shall serve as a legal basis for the Government of Portugal to seek return of the appellant through political or diplomatic channels, which had not been done till that date according to the then learned Attorney General. The Court also recorded the then Attorney General’s assurance that they were in the process of withdrawing other charges pending in various States against the appellant, which were claimed to be in violation of the extradition order. Thus, what the Government of India sought to do was to bring the legal process fully in conformity with the extradition order of Portugal albeit belatedly and the consequences of the termination of the appellant’s extradition attained finality. This showed that the Government of India was conscious of its sovereign assurance and sought to do everything to abide by its assurance at that stage., The State initially pressed for awarding death sentence to the appellant in Special Case No. 1/2006. However, after the arguments of the defence, the State submitted that death penalty is out of question in the appellant’s case but, in view of Section 34C of the Extradition Act and Section 302 of the Indian Penal Code, the appellant was liable to be punished with imprisonment for life. It was urged that the solemn sovereign assurance given by the Deputy Prime Minister of India could not be construed as a guarantee that no court in India would award the punishment provided by Indian law and the same would, thus, come into play after awarding the punishment by the Designated Court, Mumbai., The appellant sought to urge that the solemn sovereign assurance given to Portugal was an undertaking that no court in India shall award punishment of death or punishment for a period of more than twenty‑five years and a paramount duty had been cast upon the Designated Court, Mumbai to enforce the solemn sovereign assurance while awarding the punishment. While conceding that Section 34C of the Extradition Act, Section 302 of the Indian Penal Code and Section 3(2)(i) of the Terrorist and Disruptive Activities (Prevention) Act are mandatory in character, the plea was that the hands of the Designated Court, Mumbai are tied from awarding punishment for more than twenty‑five years., The Designated Court, Mumbai examined the aforesaid submissions and expressed concerns about serious repercussions if a decision was taken contrary to the letter and spirit of Indian law. At the same time, the spirit of the solemn sovereign assurance given by the Deputy Prime Minister of India and understood by the Supreme Court of Justice, Portugal in its judgment dated 27 January 2005 could not be lost sight of as, in substance, the principles of comity of courts and respect for the Indian Government and law were in issue. Section 34C of the Extradition Act made it clear that no court in India was empowered in the appellant’s extradition to award death sentence to him and that he could only be liable for life imprisonment., The trial court opined that the sovereign assurance was a plain and simple assurance that death penalty was out of question and if any other punishment was awarded as per law by Indian courts, the Government of India would exercise the powers under the Constitution, the Indian Extradition Act and the Code of Criminal Procedure to bring the punishment in conformity with the assurance. The Government of India was conscious of the principle of the independence of the Judiciary. The sovereign assurance could not have been construed as an assurance of the Courts of India and, in fact, had not been so construed by the Courts in Portugal. The independence of the Judiciary would not support impeding the powers of the Designated Court, Mumbai to exercise its jurisdiction to award punishment provided under the law, whereas the execution of the punishment fell within the domain and jurisdiction of the executive and this power of the executive was independent and not subject to judicial review., The effect of the aforesaid was that the Judiciary had to perform its functions of imposing sentence in accordance with law, while the executive would have to perform its duty by restricting the sentence in conformity with the assurance given to the Portuguese Courts., The appellant relied upon the decision of this Court in State of Maharashtra & Anr. v. Najakat Ali Mubarak Ali and submitted that as per Section 428 of the Code of Criminal Procedure, the period of imprisonment undergone by an accused as an under‑trial prisoner during investigation, inquiry or trial of a particular case, irrespective of whether it was in connection to that very case or another case, can be set‑off for the period of detention imposed on conviction in that particular case. The appellant, thus, submitted that he was entitled to the benefit of set‑off as he was already in custody for a time period in Portugal., The Designated Court, Mumbai opined that the appellant was not kept in detention till 12 October 2005 exclusively pursuant to the execution of the Red Corner notice by Interpol and, thus, could not be granted set‑off for the period for which he was undergoing the sentence awarded to him by the Portuguese Court against the sentence awarded to him in the present case. A set‑off would amount to granting benefit to the appellant even for the period for which he was sentenced for commission of offences as per Portuguese law in the Republic of Portugal., The judgment in Allan John Waters v. State of Maharashtra was distinguished as in that case the accused was not arrested in the United States for commission of offence under the laws of the United States while in the present case it was so. The proposition of law in Najakat Ali Mubarak Ali case was also found not applicable. The appellant was arrested on 11 November 2005 and was arrested in the Terrorist and Disruptive Activities (Prevention) Special Case No. 1/2006 later, where the benefit of set‑off had been granted to him. The appellant would, thus, have the benefit of set‑off from that date against the sentence that would be imposed on him., The Designated Court, Mumbai convicted the appellant and sentenced him under the different provisions of law as reflected in the judgment, which need not be referred to by us because that does not have a bearing on the propositions advanced before us., The appeal was taken up for hearing on 2 February 2022, when the learned counsel for the appellant, Mr. Rishi Malhotra, made a four‑fold submission recorded in that order as under: (i) the stand of the Government of India/State Government (three appeals have been prosecuted by the State while two other by the Central Bureau of Investigation) vis‑à‑vis the solemn sovereign assurance given by them to the Court in Portugal while seeking extradition of the appellant (on 17 December 2002 and 25 May 2003). In a nutshell it is his submission that the imprisonment term cannot extend beyond twenty‑five years as per the assurance given, even though the TADA Court said it was not bound by the assurances as the judicial system was independent of the executive. He submits that even if the TADA Court does not have the power, this Court can pass necessary orders based on an affidavit to be filed by the Central Government or prosecuting agencies. The learned counsel for the State submits that by and large they will follow the guidance of the Central Government in this behalf but we believe in any case the Central Government or prosecuting agencies may discuss this issue with the State Government to file an appropriate affidavit before us., The counsel also submitted that the period of set‑off, according to the learned counsel for the appellant, should be reckoned from 18 September 2002, the date of detention by the Portuguese authorities on account of the look‑out notice, and not from the date he was released from the Portugal Court and taken into custody by the Indian authorities on 12 October 2005., The counsel further raised the consequences of the Portugal Courts withdrawing the permission for extradition on account of breach of the solemn sovereign assurance given to them, and the merits of the controversy., The Court recorded that a fair stand was taken by the counsel and called upon the Union of India to take a stand on both these aspects. However, the affidavit filed was not found to be satisfactory. The Court wanted a clear stand on behalf of the Government of India as to whether it stood by the international commitment made by the former Deputy Prime Minister of India and, thus, called upon the Home Secretary to file an affidavit in the case., On 21 April 2022, we recorded a detailed order. We went into the affidavit filed by the Home Secretary, who had emphasised what was only obvious, that it was a dastardly act conducted with pre‑meditation in which the appellant played a very active role, was absconding and brought back to India under the Extradition Act. These powers were stated to be executive powers which would bind the executive of the respective States but the Judiciary, as the Constitution of India envisaged, was independent in deciding the cases in accordance with the law applicable.
id_892	1	Para 6 of that affidavit referred to the assurance given vide letter dated 17.02.2002 as solemn assurance to the Government of Portugal by the Government of India, while para 7 stated as under: It is respectfully submitted that the Government of India is bound by the assurance dated 17.12.2002. The period of 25 years which is mentioned in the assurance will be abided by the Union of India at an appropriate time subject to the remedies which may be available., We did not appreciate the underlined portion aforesaid as once it was recognised that the Government would abide by the assurance, nothing more or less was to be said. As far as the courts were concerned, they were to take a view as to the effect of that assurance., The affidavit also averred that the occasion for the Union of India honouring the assurance will arise only when the period of 25 years was to expire. We noted that we had to take a call on the effect of that assurance and we could not postpone the hearing of the appeal on that basis, nor was it permissible for the Government to say on an affidavit that the appellant could not raise this argument. In effect, the affidavit sought to urge the Supreme Court of India to decide the appeal on merits. As to what the Supreme Court of India will do will be the Court's own call. If the convict was accepting his guilt, he could not be compelled to urge on the merits of the appeal. Learned counsel for the appellant on that date also clearly stated that his third and fourth pleas recorded aforesaid stood withdrawn. In view of the assurance of the Government of India, he only sought that the sentence should be 25 years in terms of the solemn assurance. The other point sought to be urged and debated before us is the point of set off. The appeal was finally heard on 05.05.2022 and judgment was reserved., The matter remained in a narrow contour in view of what we have recorded aforesaid, i.e., on the two aspects of sovereign assurance and set off. Plea of Sovereign Assurance:, The appellant submitted that solemn sovereign assurance dated 17.12.2002 categorically mentioned that under Portuguese law, an offender cannot be extradited to the requesting country if the offences committed attract either death penalty or imprisonment for an indefinite period beyond 25 years. The supplementary assurance dated 25.05.2003 envisaged that the appellant will not be prosecuted for offences other than those for which extradition had been sought. The affidavit submitted by the Home Secretary, Government of India dated 18.04.2022 also stated that the Government of India was bound by its assurance. These solemn assurances were considered by the Lisbon Court of Appeals in its judgment dated 14.07.2004 and the Supreme Court of Justice of Portugal in its judgment dated 27.01.2005. It was opined that the rule of traditional estoppel doctrine as well as International Public Law, for instance with respect to the principle of reciprocity, required that the solemn sovereign guarantees provided by sovereign States are respected in future. The consequence of failure to do so gave Portugal the right to timely demand devolution of the person to be extradited through diplomatic or judicial channel., The aforesaid aspect has been kept in mind by the Designated Court, Mumbai in its main judgment dated 07.09.2017, wherein it opined that India would ensure that while executing the sentence or punishment imposed by the court in India, it would exercise its power and bring down the punishment consistent and commensurate with the solemn sovereign assurance., The only real submission in this behalf by the learned counsel for the appellant was that in view of the Constitution Bench decision of the Supreme Court of India in Union of India v. V. Sriharan alias Murugan & Ors., it had been opined that the powers to impose a modified punishment providing for any specific term of incarceration lie only either with the High Court or the Supreme Court of India, and not any inferior court. Thus, what the counsel urged was that the Supreme Court of India should opine now itself as to when the term would end and direct the release of the appellant on expiry of that term., On the other hand, learned Additional Solicitor General, Mr. K.M. Nataraj urged that in the Constitutional Scheme of India, there was a doctrine of separation of powers with the Judiciary being independent and, thus, the solemn sovereign assurance given by the Executive was carefully worded such that it could not bind the Judiciary while deciding the case on merits. The Extradition Act enabled the Executive of one State to extradite accused or convicts of another State. These were Executive powers, and only the Executive of the respective States were bound., It was sought to be urged that honouring the period of 25 years mentioned in the assurance will arise only when the 25 years were to expire, i.e., on 10.11.2030 and that the Union of India would abide by the period of 25 years at an appropriate time subject to remedies which may be available and that such a plea cannot be raised as an argument before the period elapses., We tend to agree with the submissions of the learned Additional Solicitor General on the larger conspectus, i.e., the separation of Judicial and Executive powers and the scheme of the Indian Constitution cannot bind the Indian courts in proceedings under the Extradition Act. Thus, the courts must proceed in accordance with law and impose the sentence as the law of the land requires, while simultaneously the Executive is bound to comply with its international obligations under the Extradition Act as also on the principle of comity of courts, which forms the basis of the extradition. A reference to the solemn sovereign assurance on 17.12.2002 itself makes it clear that the assurance, which was given on behalf of the Executive in India, was that if the appellant was extradited by Portugal for trial in India, he would not be visited with death penalty or imprisonment for a term beyond 25 years. To achieve this objective the methodology placed before the Portugal Courts was that Article 72(1) of the Constitution conferred power on the President of India to grant pardon, reprieve, respite or remit punishment or suspend, remit or commute the sentence of any convict person convicted of any offence. This was with the assurance under Sections 432 and 433 of the Criminal Procedure Code which conferred the power on the Government to commute the sentence to life imprisonment with terms not exceeding 14 years. It is also the subsequent solemn assurance of the Ambassador of India given on 25.05.2003 that on the appellant being extradited, he will not be prosecuted for offences other than those for which the extradition was sought and he will not be extradited to any third country. Insofar as the latter assurance is concerned, it is nobody's subsisting case that there is a violation or there can at all be a violation. As far as the first assurance is concerned, there was some ostensible deviation from it, but the ultimate affidavit in the earlier proceedings before the Supreme Court of India sought to correct it by limiting the trial to the offences for which he was extradited. That is the reason that the challenge to the extradition proceedings on account of extradition order being recalled by Portugal Courts was given up before us. No doubt those proceedings attained finality before the Portugal Courts but it is subsequently in the earlier proceedings before the Supreme Court of India that the Government of India possibly, realising the larger consequences, sought to bring it within conformity with the order of the Portugal Courts., A significant aspect is that the Courts in Portugal realised the constraints of the extent to which the Government of India could give an undertaking considering that the courts in India were independent of Executive control. Thus, it was opined in paragraph 12.2 of the judgment of the Supreme Court of Portugal dated 27.01.2005 that what could be requested was only a guarantee by the Government of India that should a sentence be imposed higher than that is specified, the Government of India would take all measures to comply with its obligations. As to how the obligations were to be complied with, it was also specified by the Government of India in the solemn sovereign assurance dated 17.12.2002, in view of the powers of the President of India under Article 72(1) of the Constitution. The President acts under the aid and advice of the Government of India under the provisions of Article 74 of the Constitution and, thus, the Government of India bound itself to advise the President of India to commute the sentence to 25 years in view of its commitment to the Courts in Portugal. The sovereign assurance also mentioned Sections 432 and 433 of the Criminal Procedure Code, by which the Government could itself suspend or remit, and commute the sentence respectively., We do believe that looking into the grievousness of the offence in which the appellant was involved, there is no question for the Supreme Court of India exercising any special privileges to commute or restrict the period of sentence of the appellant. In fact, different States in India have followed different patterns before even a case for remission is considered. We, thus, do not accept that the plea of the learned counsel for the appellant based on the judgment of the Supreme Court of India in Sriharan case., However, we are in agreement with the submissions of the learned counsel for the appellant and do not accept the contention of the learned Additional Solicitor General that we should not opine on this aspect at present. The affidavit of the Union of India through the Home Secretary is clear, at least, to the effect that they will abide by the assurance given by the Government of India to Portugal. Thus, on completion of the period of 25 years of sentence, in compliance with its commitment to the courts in Portugal, it is required that the Government of India advise the President of India to exercise his powers under Article 72(1) of the Constitution to commute the remaining sentence, or that the Government of India exercise powers under Sections 432 and 433 of the Criminal Procedure Code. We do believe that there is a necessity of making this time bound so that it does not result in an unending exercise and, thus, the Government of India must exercise the aforesaid powers or render advice on which the President of India is expected to act, within a month of the period of completion of sentence. We say so also to respect the very basis on which the Courts of Portugal observed the principles of comity of courts by recognising that there is a separation of powers in India and, thus, the Courts cannot give any assurance. The corresponding principle of comity of courts, thus, has to be observed such that the Government of India having given the solemn assurance, and having accepted the same before us, is bound to act in terms of the aforesaid. We are, thus, taking a call on this issue now and do not want to leave it to any uncertainty in future. This is of course subject to any aggravating aspect of the appellant., The appellant was arrested on 18.09.2002 on the basis of the Red Corner notice. Thereafter, the appellant's extradition proceedings started on 28.03.2003. The Designated Court, Mumbai did not give benefit of any set off from 18.09.2002 till 12.10.2005., Learned counsel for the appellant urged that as per Section 428 of the Criminal Procedure Code, an accused person is entitled to set off for the period of detention undergone by him during any investigation or inquiry and such period would be set off against the remainder of the sentence. It was also urged that it is immaterial that the appellant was in custody for some other case in Portugal and was also serving a sentence there, as it is not the requirement of law that an accused has to be only in exclusive custody of that particular case for which the set off is claimed. To support this proposition learned counsel for the appellant relied upon the following judicial pronouncements: i. Allan John Waters: The petitioner therein was arrested in pursuance of a Red Corner notice on 02.07.2003 and remained in custody till 06.09.2004. The extradition procedure had commenced in America and the competent court had allowed the extradition to India on 24.11.2003 though the petitioner was finally brought to India only on 06.09.2004. The Bombay High Court vide its judgment dated 13.03.2012 referred to Section 2(h) of the Criminal Procedure Code, which defines investigation and held that all proceedings for collection of evidence etc., is investigation, and hence the proceedings adopted by the investigating officer for seeking arrest was also part of the investigation. Hence, the detention in America of the appellant in that case was his detention during investigation. ii. Najakat Ali Mubarak Ali: This court observed that Sections 427 and 428 of the Criminal Procedure Code are intended to provide amelioration to the prisoner. Under Section 427 of the Criminal Procedure Code, the sentence of life imprisonment imposed on the same person in two different convictions would converge into one and thereafter it would flow through one stream alone. Even if the sentence in one of those two cases is not imprisonment for life, but only a lesser term, the convergence will take place and post‑convergence flow would be through the same channel. In all other cases, it is left to the court to decide whether the sentences in two different convictions should merge into one period or not. Under Section 428 of the Criminal Procedure Code, if the convict was in prison, for whatever reason, during the stages of investigation, inquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case, the earlier period of detention undergone by him should be counted as part of the sentence imposed on him and it is immaterial if the prisoner was undergoing a sentence of imprisonment in another case also during the said period. iii. Bhagirath v. Delhi Administration: The Constitution Bench held that the assumption that the word term under Section 428 of the Criminal Procedure Code implies a concept of ascertainability, or conveys a sense of certainty is contrary to the letter of law and hence the period of detention undergone by the accused as under‑trial prisoners shall be set off against the sentence of life imprisonment imposed on them., The nutshell of the submission was that the set off period should commence from 18.09.2002 when the appellant was arrested pursuant to the Red Corner notice, or at worst from 28.03.2003, i.e., the date of the ministerial order when extradition was granted to the appellant for various offences., On the other hand, learned Additional Solicitor General referred to the fact that the appellant was convicted by the Courts in Portugal for an offence committed in Portugal and was serving a sentence which cannot be for the appellant's benefit for purposes of Section 428 of the Criminal Procedure Code. The period undergone by the appellant then was not as an under‑trial prisoner as in the present case. In any case, assuming that the Union of India is bound by its assurance, the period would start only from the date the appellant was handed over to the Indian authorities, i.e., 10.11.2005., Learned Additional Solicitor General also submitted that convicts sentenced to life imprisonment are liable to undergo imprisonment for the rest of their normal life, subject to power under Sections 432 and 433 of the Criminal Procedure Code, or Article 72 or Article 161 of the Constitution and Section 428 of the Criminal Procedure Code will be attracted only if and when such power is exercised. Thus, Section 428 of the Criminal Procedure Code applies to a specified term, and not the whole life of the accused as there is no purpose of setting off a few years from the punishment of life imprisonment. However, no order under Sections 432 and 433 of the Criminal Procedure Code, Article 72 or Article 161 of the Constitution has been passed in the present case so far and as such Section 428 of the Criminal Procedure Code has no application., Learned Additional Solicitor General sought to rely upon the judgment of the Supreme Court of India in Raghbir Singh v. State of Haryana, wherein it was held that to secure the benefit of Section 428 of the Criminal Procedure Code, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced. The Supreme Court of India also held that an accused cannot claim a double benefit under Section 428 of the Criminal Procedure Code, i.e., the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well. This view was also followed in Atul Manubhai Parek v. CBI., In the context of the judgment of the Supreme Court of India in Najakat Ali Mubarak Ali case, it was submitted by the learned Additional Solicitor General that the judgment in Raghbir Singh case was considered, but not overruled. It was urged before us that there is apparently a misreading of the opinion of Justice Phukan as it aligned with the dissenting opinion of Justice R.P. Sethi and did not concur with Justice K.T. Thomas's opinion, which had opined that any other period, which is not connected with a case cannot be said to be reckonable for set off. It was submitted that these judgments have also been mentioned in Atul Manubhai Parek case but the Supreme Court of India has followed the view taken in Raghbir Singh case., On examination of the submissions, we are unable to concur with the view sought to be propounded by learned counsel for the appellant. It cannot be lost sight that when reference is made in a set off for adjustment of periods, the reference is to proceedings within the country. The criminal law of the land does not have any extra‑territorial application. Thus, what happens in another country for some other trial, some other detention, in our view, would not be relevant for the purposes of the proceedings in the country. The factual scenario is that the appellant was charged with having a fake passport. He was found guilty and convicted of sentence from 18.09.2002. This had nothing to do with the proceedings against him in India. His sentence would have been completed on 18.03.2007 de hors the aspect of remission or commutation. However, he was granted conditional release for the remaining sentence on 12.10.2005. The mere fact that there was also a detention order under the Red Corner notice was of no significance. He was again imprisoned from 12.10.2005 till 10.11.2005, i.e., when he was handed over to the Indian authorities. The period till 10.12.2005, when he was serving out the sentence, certainly could not have been counted. That leaves the period of less than a month only, which is really more of an academic exercise., We cannot accept the plea of the learned counsel for the appellant that the formal arrest on 18.09.2002 of the appellant under the Red Corner notice is the date to be taken into reckoning for serving out sentence in the present case or that the relevant date should be 28.03.2003, when the extradition proceeding started. In view of what we have said, the only case which could emerge was of taking the date when he was given a conditional release on 12.10.2005. Thus, if one looks from the perspective of detention of the case in India, the period commences only on his being detained at Portugal on 12.10.2005, albeit giving him benefit of a little less than one month., The factual scenario aforesaid, thus, makes the debate over the judgment in Raghbir Singh case, Atul Manubhai Parek case and Najakat Ali Mubarak Ali case more academic. Suffice for us to say that the judgment on this issue in Atul Manubhai Parek case discusses the earlier two opinions in Raghbir Singh case and Najakat Ali Mubarak Ali case to opine that the accused cannot claim a double benefit under Section 428 of the Criminal Procedure Code. As already stated, the law would have application within the country and does not have anything to do with extra‑territorial application where the trial and conviction has taken place for a local offence, i.e., Portugal in this case., Now turning to Allan John Waters case relied upon by learned counsel for the appellant, the factual scenario is quite different from the present case. The petitioner there was arrested pursuant to a Red Corner notice on 02.07.2003 and remained in custody till 06.09.2004. In this time period, the extradition process was on. Since the detention was in pursuance of a case in India, the benefit of period in detention in the USA was given to him. In fact, to that extent we have followed that principle in the present case by giving the benefit of detention period qua the present case and, thus, treated the date of detention in custody from 12.10.2005. We have ignored the formal detention order passed earlier for the reason that the period the appellant was serving out his sentence in Portugal, in pursuance of a local offence, cannot be a set off against the detention in the present case. It is also apparent from the fact that on serving his sentence and getting the benefit of conditional release, his detention thereafter was in pursuance of the present proceedings on the same date of 12.10.2005., In view of the aforesaid facts and circumstances, we conclude that the detention of the appellant commences from 12.10.2005 in the present case. On the appellant completing 25 years of sentence, the Central Government is bound to advise the President of India for exercise of his powers under Article 72 of the Constitution, and to release the appellant in terms of the national commitment as well as the principle based on comity of courts. In view thereof, the necessary papers be forwarded within a month of the period of completion of the 25‑year sentence of the appellant. In fact, the Government can itself exercise this power in terms of Sections 432 and 433 of the Criminal Procedure Code and such an exercise should also take place within the same time period of one month., The appeals are accordingly disposed of leaving the parties to bear their own costs.
id_893	0	Reserved on 30.06.2023 and pronounced on 08.08.2023. Writ Petition (Madras Division) No. 9754 of 2023 and Writ Petition (Madras Division) No. 8689 of 2023 filed by A. Lakshminarayanan, the Assistant General Manager, Human Resources Management/Disciplinary Authority, Tamil Nadu Grama Bank, Head Office, Vigilance Department, No. 6, Yercaud Road, Hasthampatti, Salem 636 007, as petitioner. The prayer is for a writ of certiorari to call for the records pertaining to the charge sheet dated 23.03.2023 in TNGB/VIG/CS/24/2022-23 on the file of the respondent and to quash the same. For petitioner: Ms. D. Geetha. For respondent: Mr. N. Dilipkumar, Standing Counsel., The petitioner joined Pandiyan Grama Bank as Office Assistant in 2013. The bank was later amalgamated with Pallavan Grama Bank and is now known as Tamil Nadu Grama Bank. The petitioner is now working in Arumuganeri Branch, Thoothukudi Region as Group B Office Assistant (Multi‑purpose). He is a trade‑union activist and an office bearer of the Tamil Nadu Grama Bank Workers Union. The petitioner is facing disciplinary action at the hands of the management and has filed writ petitions assailing the action., The petitioner was suspended on 05.08.2022 on the ground that he had posted certain objectionable messages mocking administrative processes and belittling higher authorities in a WhatsApp group on 29.07.2022. The suspension order was stayed in Writ Petition (Madras Division) No. 18705 of 2022 on 18.08.2022. After revoking the suspension, the impugned charge memo was issued. Challenging the same, the present writ petition was filed., The learned counsel appearing for the petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petition and called upon the Madras High Court to set aside the charge memo and grant the relief as prayed for., The respondent filed a counter‑affidavit and the learned standing counsel for the bank explained its contents. The prime contention of the learned standing counsel is that the message posted by the petitioner is per se defamatory. The Board of Directors of the bank includes women IAS officers. The petitioner had described their actions in unflattering terms. According to the conduct rules and the instruction issued by the management, the act committed by the petitioner constitutes misconduct. Relying on a series of decisions, the learned standing counsel contended that the writ petition is not maintainable and pressed for its dismissal., The Tamil Nadu Grama Bank (Officers and Employees) Service Regulations, 2019 govern the conduct of the employees of the bank. Regulation 18 reads: “Liability to abide by the regulations and order: every officer or employee shall confirm to and abide by these regulations and shall also observe, comply with and obey any directions which may, from time to time, be given to him by any person or persons under whose jurisdiction, superintendence or control he may for the time being be posted.” Regulation 20 reads: “Obligation to promote the Bank's interest: every officer or employee shall serve the Bank honestly and faithfully, and shall use his utmost endeavour to promote the interests of the Bank and shall show courtesy and attention in all transactions and dealings with officers of Government, the Bank's constituents and customers.”, The management issued Circular No. 82/2019‑20 dated 23.07.2019 regulating the conduct to be followed by the employees of the bank while expressing views on social media., The argument of the learned standing counsel is that the employees have to comply with and obey the instructions issued vide Circular No. 82/2019‑20 dated 23.07.2019. Since the petitioner has contravened the same, Regulation 39, which provides for penalties for breach, stands attracted. The question that calls for consideration is whether this contention of the management is sustainable in the facts and circumstances of the case., The petitioner admittedly posted the subject message in a WhatsApp group. WhatsApp is essentially a communication platform that is end‑to‑end encrypted. Messages can be sent by one person to another, or to a group of persons privately. Someone who is not a part of the group cannot have access to the conversation exchanged among the WhatsApp group members., The petitioner started a WhatsApp group known as AIRBEATN and Puduvai. According to him, it is a private group that exists to organise their union activities and to communicate among them. The issue is whether the aforesaid circular can be deployed to regulate the activities on the said platform. If the circular is applied literally and verbatim, the act of the petitioner would amount to misconduct. Even though the circular has not been formally impugned, the approach approved by the Supreme Court of India in Bharathidasan University Vs. AICTE (2001) 8 SCC 67 is adopted. The ratio laid down therein is that when the power to make regulations is confined to certain limits, courts are bound to ignore regulations that are outside those limits unless a specific relief is sought to strike them down. The circular will not be struck down but can be read down so that it conforms with the law of the land., The Industrial Disputes Act, 1947 forbids unfair labour practices. The fifth schedule to the Act catalogues them. If the employer interferes with, restrains or coerces workmen in the exercise of their right to organise a trade union or to engage in concerted activities for collective bargaining or other mutual aid, that amounts to an unfair labour practice. The purpose of employees coming together is to negotiate with management regarding service conditions. Such activities are legitimate in a democratic republic. Article 19(1)(a) of the Constitution of India guarantees freedom of speech and expression, subject to reasonable restrictions. A government servant cannot claim the same extent of right as a private citizen; he is governed by conduct rules. However, fundamental rights do not cease at the gates of the workplace, and the core of Article 19(1)(a) remains with vigor., There is a right to vent. Every employee or member of an organisation may have grievances against management. It is in the interest of the organisation that complaints find expression and ventilation. If the image of the organisation is affected, management may step in, but not otherwise., A private chat among employees, even if conducted at home, cannot attract the regulatory framework of the management. The common‑law principle that a man's home is his castle applies. Publication of private conversation would attract contempt, but a private, encrypted virtual platform with restricted access is analogous to a private home. Such an approach is in consonance with liberal democratic traditions. The respondent's proposal amounts to thought‑policing., The concept of privacy is now a recognised fundamental right (AIR 2017 SC 4161, Justice K. Puttaswamy (Retd.) vs. Union of India). Not only individuals but also groups have privacy rights. So long as the activities of a group do not fall foul of law, their privacy must be respected. Sharing child‑pornographic content or conspiring to commit unlawful acts would invite regulatory action, but mere discussion of matters of common interest cannot be a target of attack. The members of the petitioner’s WhatsApp group felt aggrieved by some actions of the respondent bank. The petitioner expressed his views; the manner of expression may not have been in good taste, but he unconditionally apologised in writing. If management obtained the conversation through a mole or surveillance technology, the person who first expressed the opinion cannot be proceeded against., The Hon'ble High Court of Kerala (Justice A. Muhamed Mustaque) observed in Writ Petition (Civil) No. 27355 of 2018 dated 28.09.2018 (Anil Kumar A.P. vs. Mahatma Gandhi University and others) that emotional outbursts through social media are part of the right of free speech, that servitude is an outlook of an individual and not a governing norm in a public institution, and that discipline and servitude must be distinguished. An employee’s expression on social media, if not inconsistent with the collective interest of the institution, is part of his right of free speech., The Hon'ble Judge in Writ Petition (Civil) No. 31703 of 2018 dated 05.12.2018 (Dr. Prasad Pannian v. The Central University of Kerala and others) observed that posting on Facebook or social media has become a matter of concern for public authorities. In the absence of specific social‑media guidelines, each post must be examined to see whether it is detrimental to the collective interest of the university. The expression of a teacher’s opinion cannot be automatically treated as criticism; healthy criticism is a better way to govern a public institution., The Hon'ble High Court of Kerala in Writ Petition (Civil) No. 21994 of 2020 dated 26.03.2021 (Retheesh P.V. vs. Kerala State Electricity Board Ltd) sustained the contention that posts made in a private WhatsApp group, even if denigratory, cannot ipso facto be construed as a disciplinary infraction by an employee., The Hon'ble High Court of Tripura (Chief Justice A. K. Kureshi) in Writ Petition (Civil) No. 1363 of 2019 dated 09.01.2020 (Lipika Pual v. The State of Tripura and others) dealt with disciplinary action against a government employee who participated in a political rally and canvassed for a political party on Facebook. The court held that a government servant is not devoid of the right of free speech, which can be curtailed only by a valid law, and that the borders of conduct rules cannot be drawn unreasonably., The Hon'ble Supreme Court of India in Anuradha Bhasin vs. Union of India (2020) 3 SCC 637 held that freedom of speech and expression through the medium of the internet is an integral part of Article 19(1)(a) and any restriction must be in accordance with Article 19(2)., The Hon'ble Supreme Court of India in Kaushal Kishor v. State of Uttar Pradesh (2023) 4 SCC 1 observed that even if a person holds an opinion not in conformity with constitutional values, he cannot be taxed or penalised unless his opinion is translated into action that causes injury, loss or harm. A fundamental right under Article 19 can be enforced against persons other than the State or its instrumentalities., It is well settled that a charge memo can be quashed if, assuming that all the acts attributed to the delinquent are true, they would not amount to misconduct. The petitioner is possessed of the right to vent; the opinion was not expressed publicly but was shared among members of a private WhatsApp group. The management has not disclosed how it became aware of the post or how the bank's interest was affected. The petitioner apologised for the language used. In these circumstances, the act cannot amount to misconduct and the impugned charge memo is quashed., The writ petition is allowed. No costs. Connected miscellaneous petitions are closed.
id_894	0	Criminal Appeal (D) No. 42/2022, reserved on 31 August 2023 and pronounced on 17 November 2023, Peerzada Shah Fahad (Appellant) appeared through Mr. P. N. Raina, Senior Advocate, with Mr. J. A. Hamal, Advocate, Union Territory of Jammu & Kashmir and Anr. Respondents were represented by Ms. Monika Kohli, Senior Additional Advocate General, and Mr. Mohsin Qadri, Senior Additional Advocate General (through VC) per Atul Sreedharan., The appeal raises two questions of law: (i) whether section 43D(5) of the Unlawful Activities (Prevention) Act, 1967, when a prima facie case exists against the accused but the absence of a need to arrest would violate the right to life under Article 21 of the Constitution, permits the court to grant bail despite the prima facie case; and (ii) whether the concept of clear and present danger should be considered by courts while deciding a bail application where the bar under section 43D(5) is applicable., The appellant filed this Criminal Appeal (D) No. 42/2022 under the relevant provisions of the National Investigation Agency Act, aggrieved by the order dated 15 July 2022 passed by the Learned Special Judge (UAPA) / 3rd Additional Sessions Judge, Jammu, which dismissed the appellant’s bail application. A petition under section 482 of the Code of Criminal Procedure (Cr.P.C.) bearing CRM (M) No. 472/2023 was filed against the order dated 16 March 2023 that framed charges against the appellant under sections 13 and 18 of the Unlawful Activities (Prevention) Act, 1967, sections 121 and 153B of the Indian Penal Code, and sections 35 and 39 of the Foreign Contribution (Regulation) Act, 2010. The appellant is Accused No. 2 (A2) and Abdul Aala Fazili is Accused No. 1 (A1). The Supreme Court of India is not concerned with charges framed against A1., The appellant was arrested on 20 May 2022 in FIR No. 1/2022 of Police Station JIC/SIA, Jammu. The prosecution has presented extensive arguments, requiring the Supreme Court of India to consider them in detail., The background to the present case is as follows: the appellant was initially arrested by Police Station Pulwama in connection with FIR No. 19/2022, for which bail was granted by the TADA/POTA Court at Srinagar. Without releasing him, the police transferred his custody to Police Station Shopian in FIR No. 6/2021, where bail was also granted by the Munsif Court, Shopian. Nevertheless, he remained in custody and was later shifted to Police Station Safa Kadal in another case. Before the Srinagar court could decide his bail application, the appellant was placed under preventive detention under the Jammu and Kashmir Public Safety Act, 1978. The current case arose from the registration of the aforementioned FIR., According to the prosecution, (A) a source of information received on 4 April 2022 led to the discovery of an article titled \The shackles of slavery will break\ written by A1 and published on a webpage belonging to the appellant; (B) the appellant is alleged to be part of an ongoing operation to propagate a false narrative aimed at sustaining a secessionist‑terrorist campaign that seeks the breakup of the Indian Union and the accession of Jammu and Kashmir to Pakistan; (C) certain anti‑India elements in the media, allegedly on the payroll of the Inter‑Services Intelligence, have created digital platforms to construct a distorted account of events in Kashmir and to demonise the Government of India; (D) on the basis of the recovered article, FIR No. 1/2022 was registered at Police Station JIC, Jammu, on 5 April 2022 under sections 13/18 of the Unlawful Activities (Prevention) Act, 1967, and sections 120‑B, 121, 123, 153‑B of the Indian Penal Code; (E) the offending article was written by A1 and allegedly uploaded by the appellant on his domain on 6 November 2011, leading to the FIR on 5 April 2022 and the appellant’s arrest on 20 May 2022. In short, the prosecution admits that the appellant was arrested for an alleged offence committed eleven years earlier, his role being limited to uploading the article, but alleges that his intention was extremist and aligned with secessionist ideology., The charge sheet filed against the appellant and co‑accused has been framed by the Learned Trial Court. Forty‑four prosecution witnesses and forty documents have been examined. The prosecution alleges that the appellant removed the article from his domain to destroy evidence. Investigation revealed that the appellant’s domain was registered on 9 July 2010 with a major domain registrar. After a preservation request to the registrar on 11 April 2022, the article re‑appeared on the appellant’s domain. Using extractor tools, the IP address of the hosting server was linked to the appellant by the registrar., Without reproducing the entire charge sheet, it suffices to state that the police found evidence that the appellant hosted the offending article written by A1 on his domain and later removed the domain to evade detection. The removal occurred in 2011 and was discovered in 2022. The Supreme Court of India must determine whether the offending article, read in its entirety, and its hosting on the appellant’s domain, prima facie constitute an offence as charged., Senior Additional Advocate General Ms. Monika Kohli and Mr. Mohsin Qadri submitted the following arguments: (1) the Supreme Court of India’s interference is limited because charges have already been framed by the Learned Trial Court; (2) the appellant must demonstrate that the rigour of section 43D(5) of the Unlawful Activities (Prevention) Act does not apply; (3) Article 21 of the Constitution is not applicable; (4) the article and the appellant’s unpublished poems reveal a fissiparous mental state; (5) the appellant conspired with A1 by publishing the article and, despite a disclaimer, shared the same mental state, thus conspiring to commit the offences; (6) the charges are grave and the Supreme Court of India cannot delve into the merits of the prosecution’s case at the bail stage; (7) the judgment of the Supreme Court in Zahoor Ahmed Shah Watali’s case remains applicable notwithstanding the later judgment in Vernon Gonsalves’s case; (8) loss, damage or destruction of property includes maligning India internationally, which the appellant allegedly did, and therefore constitutes a terrorist act under section 15(1)(a)(ii) of the Unlawful Activities (Prevention) Act, because incorporeal property such as the fair name of India is protected., The Supreme Court of India initially faced a dilemma regarding how much evidence could be considered for the bail application filed under section 21 of the National Investigation Agency Act and for the petition under section 482 Cr.P.C. to quash the proceedings. In Ranjit Singh Brahmajeet Singh Sharma’s case, the Supreme Court held that while detailed reasons are not mandatory, the order must reflect the application of mind when granting or rejecting bail. In Vernon Gonsalves’s case, the Supreme Court applied the law laid down in Zahoor Ahmed Shah Watali’s case, stating that a prima facie case means the police evidence must prevail unless disproved. The Court further held that a superficial analysis of the probative value of evidence is necessary at the bail stage, especially when the bar of section 43D(5) is raised., The prosecution’s main thrust is that the appellant and A1 created a narrative to incite the youth of Jammu and Kashmir to adopt violent means of protest for secession from India and accession to Pakistan, and that the offending article was written with that intention. The prosecution alleges that A1 is the agent provocateur who authored the article. Having read the article, the Supreme Court of India prima facie finds that it calls for the secession of Jammu and Kashmir from India, accuses the Indian government of genocide against Kashmiris, and urges freedom, but does not contain a call to arms, incitement to armed insurrection, or violence against the State., The prosecution attributes to the appellant the role of a willing collaborator who hosted the offending article on his domain and later deleted the domain to evade detection. The Senior Additional Advocate Generals presented a compilation of other articles hosted on the appellant’s domain to show a pattern of repeat offences. One such article, \Ansar Ghazwat‑ul‑Hind: Kashmir’s loneliest militant group’s perpetual fights,\ dated 14 April 2021, quoted a militant’s last words but did not endorse or glorify violence. The article was written by Yashraj Sharma, who is a prosecution witness, not an accused. None of the articles espouse violence against the State; they merely report incidents and include quotations., The prosecution also submitted unpublished poems allegedly written by the appellant, portraying his fondness for the valley, desire for freedom, and anguish over turmoil, to demonstrate a separatist mentality. Additionally, paragraph 16.16 of the charge sheet alleges that the appellant received Rs 10,59,163.00 (ten lakh fifty‑nine thousand one hundred and sixty‑three rupees) from the non‑governmental organisation Reporters Sans Frontières in three instalments during 2020‑21, and subscription revenues amounting to twelve lakh rupees since the domain’s inception. It is further alleged that the appellant received approximately fifty‑eight lakh rupees, of which thirty lakh were foreign contributions and fifteen lakh were cash deposits, which the prosecution claims are suspicious and possibly for terror funding. However, the Learned Trial Court has not charged the appellant under section 17 of the Unlawful Activities (Prevention) Act, which deals with terror funding, but under the relevant provisions of the Foreign Contribution (Regulation) Act. Therefore, the State’s apprehension that the funds could have been used for terror funding is rejected., The State argues that the appellant is charged under section 18 of the Unlawful Activities (Prevention) Act, making the proviso to section 43D(5) applicable and precluding bail. Section 18 provides punishment for conspiracy to commit a terrorist act or to prepare for such an act, with imprisonment of not less than five years, up to life, and a fine. Section 15 defines a terrorist act as any act intended to threaten the unity, integrity, security, economic security, or sovereignty of India, or to strike terror, using bombs, explosives, firearms, lethal weapons, poisonous gases, chemicals, or any hazardous substance, resulting in death, injury, loss or damage to property, disruption of essential services, or other specified consequences., The State also contends that the appellant is a recidivist, citing three other criminal cases and one preventive detention case: (1) FIR No. 70/2020 of Police Station Safakadal under section 307 of the Indian Penal Code and section 13 of the Unlawful Activities (Prevention) Act; (2) FIR No. 6/2021 of Police Station Shopian under sections 153 and 505 of the Indian Penal Code; (3) FIR No. 19/2022 of Police Station Pulwama; and (4) a case under the Public Safety Act in which he was taken into custody on 14 March 2022., Counsel for the appellant, Mr. P. N. Raina, Senior Advocate, strongly contested the prosecution’s case. He argued that there is no evidence that the appellant authored or uploaded the offending article, which was allegedly created in 2011 and mysteriously unearthed in 2022. Regarding the alleged removal of the domain, a prosecution witness, Yash Raj Sharma, stated in his statement under section 161 Cr.P.C. that he has been working with the appellant since 2018 and that the domain suffered a Distributed Denial of Service (DDoS) attack in 2020, necessitating a revamp by Farhan Bhat of Fireboat Studios. The domain was redesigned in October 2021, during which data and emails prior to 2021, including the article, were erased. The witness affirmed that the appellant instructed him to follow ethical standards and not engage in unethical conduct. Accordingly, the appellant’s counsel maintains that the domain’s deletion resulted from a malicious DDoS attack and subsequent recovery, not from an intent to evade detection., The appellant’s interrogation by the National Investigation Agency, recorded in the charge sheet (page 153), indicates that he possesses a moderate and liberal mindset, writes about Kashmir policies, and believes that Kashmir should be developed rather than become a free state. Paragraph 16.14 of the charge sheet notes that although the article is alleged to have caused a breach of peace, no details of any violent incidents or attacks on security forces directly resulting from the article have been provided. The FIRs registered between 2020 and 2022 cannot be reasonably linked to an article uploaded in 2011. Applying the legal maxim \causa proxima non remota\ (the proximate cause, not the remote cause, is relevant), attributing liability for offences occurring between 2020 and 2022 to an article published in 2011 would stretch causation beyond acceptable limits., Counsel for the appellant highlighted that paragraph 16.19 of the charge sheet presents a speculative correlation between the article and an increase in valley violence and youth recruitment by terrorist groups. The prosecution admits that none of the forty‑four witnesses or any missing persons have reported being influenced or radicalised by reading the article, rendering the charge speculative., Regarding the recidivist claim, the appellant’s counsel stated that in FIR No. 70/2020 of Police Station Safakadal, the appellant was arrested on 5 March 2022, granted default bail on 7 December 2022, and the charge sheet has not yet been filed. In FIR No. 6/2021 of Police Station Shopian, regular bail was granted on 5 March 2022 and the charge sheet remains unfiled. In FIR No. 19/2022 of Police Station Pulwama, the appellant was arrested on 4 February 2022 and granted bail on 26 February 2022. The preventive detention order under the Public Safety Act has been quashed by the Supreme Court of India. These facts have not been contested by the State., The Senior Additional Advocate Generals argued that the appellant is prima facie guilty of offences under sections 13 and 18 of the Unlawful Activities (Prevention) Act, and because section 18 falls within Chapter IV of the Act, the proviso to section 43D(5) applies, precluding bail. The State relied on Zahoor Ahmad Shah Watali’s case, which holds that the court need only examine the broad probabilities of the case and is not required to conduct a roving enquiry of the evidence. If the court is satisfied that the case prima facie discloses an offence under Chapter IV or VI of the Act, the bar of the proviso to section 43D(5) would apply and bail cannot be granted., The Supreme Court of India asked the State to explain how section 15 would apply in the present facts, as the appellant’s counsel contended that the State’s allegation of conspiracy under section 18 requires the commission of a terrorist act as defined in section 15. The counsel submitted that a terrorist act under section 15(1) is confined to acts involving bombs, explosives, firearms, lethal weapons, poisonous gases, chemicals, or any hazardous substance, resulting in death, injury, loss or damage to property, disruption of essential services, or other enumerated consequences. The counsel further argued that there is no allegation in the charge sheet that the appellant has committed or conspired to commit a terrorist act as described in section 15(1)(a)., The Senior Additional Advocate General presented a novel argument that the appellant’s act falls within section 15(1)(a)(ii), which classifies loss, damage or destruction of property as a terrorist act. Referring to section 2(h) of the Unlawful Activities (Prevention) Act, which defines property as both corporeal and incorporeal, the counsel asserted that the honour, dignity and fair name of India constitute incorporeal property. The offending article, according to this argument, besmirched India’s incorporeal property by alleging genocide, rape of Kashmiri women, and other outrageous conduct, thereby constituting a terrorist act., If the above argument were accepted, it would effectively turn criminal law on its head, allowing any criticism of the central government to be labelled a terrorist act because the honour of India is deemed incorporeal property. Such a proposition would directly clash with the fundamental right to freedom of speech and expression guaranteed under Article 19 of the Constitution., The basic precept of criminal law is that statutes must be unambiguous, unequivocal, and clear when defining an offence. Even in their minimal formulation, the rule of law and the principle of legality require that criminal law provide fair warning of prohibitions to those affected.
id_894	1	In order to give fair warning, prohibitions should be as clear and as certain as possible, not least when a significant sanction such as imprisonment may follow. It is not only criminal law or criminal statutes that require clarity. The clearest statutes are those that require no interpretation by the courts and are worded in a manner where the rights and liabilities are understood even by the uninitiated. The desideratum of clarity represents one of the most essential ingredients of legality; obscure and incoherent legislation can make legality unattainable by anyone., Before the concept put forth by the Learned Senior Additional Advocate General can be accepted, the legislature would have to make the act of expressing, in any manner whatsoever, a disparaging thought of India a specific offence. The average Indian in the street who must suffer the consequences must be made well aware beforehand that his negative opinion of India, expressed in words, writing, or any other permanent form, could attract severe sanction. Moreover, the property referred to in section 15(1)(a)(ii) must be susceptible to destruction or loss using means such as explosives or firearms, as in section 15(1)(a). Property that can suffer damage, loss or destruction can only be material or corporeal property; an incorporeal property would be impervious to such damage. Therefore, the argument put forth by the Learned Senior Additional Advocate General is rejected., While the Supreme Court of India in Zahoor Ahmed Shah Watali's case interpreted the proviso to section 43D(5) of the Unlawful Activities (Prevention) Act, thereby restricting the scope for grant of bail in a case where the offence was under Chapter IV or VI of the Act, it widened the scope in Union of India v. K.A. Najeeb, where it held that the bar of the proviso to section 43D(5) would not prevent a constitutional court from granting bail where any of the rights enshrined in Part III of the Constitution were violated. The Court observed that statutory restrictions such as section 43D(5) of the Unlawful Activities (Prevention) Act do not oust the ability of constitutional courts to grant bail on the ground of violation of Part III of the Constitution. In that case, the Supreme Court of India examined the correctness of an order granting bail passed by the Kerala High Court in a Unlawful Activities (Prevention) Act case where the accused's right to a speedy trial was infringed. The right to a speedy trial is equated with the right to life itself, and its denial is considered violative of Article 21 of the Constitution., The power to arrest is an executive discretion vested with the police. There is no compulsion on the police to effect an arrest merely because a First Information Report has been filed and a person is named as an accused. In Joginder Kumar v. State of Uttar Pradesh, a young lawyer was held unlawfully by the police for five days. The Supreme Court of India came down heavily on the police for what it perceived as a malicious exercise of executive discretion and held that an arrest cannot be made unless it is lawful for the police officer to do so. The existence of the power to arrest is one thing; the justification for its exercise is another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock‑up can cause incalculable harm to a person's reputation and self‑esteem. No arrest can be made in a routine manner on a mere allegation of commission of an offence. It would be prudent for a police officer, in the interest of protecting the constitutional rights of a citizen, to ensure that no arrest is made without reasonable satisfaction after some investigation into the genuineness and bona fides of the complaint, a reasonable belief as to the person's complicity, and the need to effect arrest. Denying a person his liberty is a serious matter. The recommendations of the Police Commission reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on suspicion of complicity in an offence; there must be reasonable justification in the officer's opinion that such arrest is necessary and justified., The Supreme Court of India held that an arrest must be justifiable by the police; the police must show adequate cause for depriving a person of his right to personal liberty. The Court stated without exception that when the authority to arrest is exercised, there must be justification for that exercise, and the police must satisfy the courts, if called upon, of the need to arrest in a specific case. Arrest without justification is not merely a colourable exercise of executive discretion; it also results in violation of the right to life and personal liberty of the individual. An impetuous arrest can destroy a person's standing in society and affect his family. Even if the person is acquitted, the time spent in incarceration remains a lasting wound on his psyche., The discretion of the police during investigation is without fetters. In M. C. Abraham and Another v. State of Maharashtra and Others, the Supreme Court of India examined an order passed by the High Court directing the police to arrest an accused whose anticipatory bail application had been dismissed by the High Court. Holding the direction unwarranted, the Supreme Court observed that arrest of an accused is a part of the investigation and is within the discretion of the investigating officer. Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without an order from a magistrate and without a warrant. The section gives discretion to the police officer to arrest any person in the situations enumerated therein, based on reasonable complaint, credible information, or reasonable suspicion. The officer is not expected to act mechanically and arrest the accused as soon as a report is lodged; after appropriate investigation, the officer may decide whether arrest is necessary. At that stage the court has no role to play. Since the power is discretionary, a police officer is not always bound to arrest an accused even if the allegation involves a cognizable offence. Because arrest encroaches on liberty and affects reputation, the power must be exercised cautiously, depending on the nature of the offence and the accused. The Supreme Court clarified that the power to arrest also includes the power not to arrest if the officer is satisfied that there is no need to arrest even though a prima facie case exists., The power to arrest, being a discretionary power vested with the police, its arbitrary use can violate Article 14 of the Constitution. Making an arrest without justification would be an arbitrary act. The fundamental right to life and personal liberty under Article 21 of the Constitution prevails over all others. At the incipient stage of an investigation, an arrest may be justifiable for the purpose of investigation and unraveling the crime. However, once the police have no further need of the accused in the investigation and the accused is in judicial custody, the question arises whether he should be enlarged on bail or remain under trial. If the Court is of the opinion that after investigation there is no reasonable cause to detain the accused in judicial custody, bail is the rule. Conversely, if the Court believes the accused could tamper with evidence, influence witnesses, or abscond, bail may be refused as a reasonable cause to deny freedom, though not for an inordinately long period., The charge against the appellant is essentially associated with his right to freedom of speech and expression, which prima facie appears to be infringed. In Schenck v. United States, the charge was under the provisions of the Espionage Act that impeded the United States' war efforts against the German Empire in World I by mailing letters to discourage conscripts from joining the U.S. Army. The appellant sought the quashing of the Espionage Act as it infringed his First Amendment right of free speech. Justice Oliver Wendell Holmes, writing for the Court, held that the question in every case is whether the words used are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree., When we examine these authorities in conjunction, the following principles emerge: (1) Arrest is an executive discretion with the police, and the police need not arrest a person even where there is evidence of offences under Chapter IV or VI of the Unlawful Activities (Prevention) Act; the courts cannot compel them to do so (M. C. Abraham and Another v. State of Maharashtra, (2003) 2 SCC 649). (2) Even when the investigating agency is empowered to arrest an accused, it must justify the need for such arrest (Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260). (3) While hearing a bail application of an accused for an offence under Chapter IV or VI of the Unlawful Activities (Prevention) Act, the court must assess whether a prima facie case exists against the accused (Vernon v. State of Maharashtra, 2023 SCC OnLine SC 885). (4) The bar to grant bail under the proviso to section 43D(5) of the Unlawful Activities (Prevention) Act does not impede constitutional courts from granting bail where the court is satisfied that any fundamental right under Part III of the Constitution is violated (Union of India v. K.A. Najeeb)., When the principles laid down in Joginder Kumar and K.A. Najeeb are considered together, an arrest under the provisions of the Unlawful Activities (Prevention) Act without legal justification would be an arbitrary exercise of executive discretion, violating Article 14 of the Constitution, and would also violate Article 21. With two fundamental rights of the accused under Part III of the Constitution being infringed, the bar of the proviso to section 43D(5) of the Unlawful Activities (Prevention) Act becomes inconsequential in light of the Supreme Court's judgment in K.A. Najeeb, and the accused would be entitled to bail., The legislative intent behind section 43D(5) and its proviso was to ensure that persons who constitute a clear and present danger to society, whose relationship with the offence is proximate and direct, do not obtain bail during the pendency of the trial lest they resume nefarious activities upon release. It was not intended to keep incarcerated an unwary transgressor who happened to be at the wrong place at the wrong time. Hypothetically, the proviso to section 43D(5) aims to ensure that a terrorist captured after a firefight with security forces and charged under section 16 of the Unlawful Activities (Prevention) Act remains incarcerated as an under‑trial because his release on bail would pose a clear and present danger to society. Conversely, a shepherd in a remote village compelled to give refuge to insurgents at gunpoint, who, for the sake of his family, complies out of helplessness and is charged under section 19 of the Unlawful Activities (Prevention) Act, is not a clear and present danger to society and should not have been arrested if the police had exercised discretion properly. In the first instance, the arrest is justifiable under the dicta of Joginder Kumar; in the second, the arrest is arbitrary, violating Articles 14 and 21 of the Constitution. Applying the dicta in K.A. Najeeb, the shepherd would be entitled to bail notwithstanding the proviso to section 43D(5)., We hold that the investigating agency, when investigating a case under the Unlawful Activities (Prevention) Act, has the authority to arrest or not to arrest under the provisions of the Act. However, upon arrest, the agency must justify the arrest on the basis of a clear and present danger to society if bail is sought. The existence of prima facie evidence against the accused is of no avail without justification grounded in the doctrine of clear and present danger. If the investigating agency fails to satisfy the Supreme Court and cannot justify the arrest as required in Joginder Kumar, the arrest would violate the accused's rights under Part III of the Constitution as articulated in K.A. Najeeb, and the accused may be granted bail. Assessing whether the accused is a clear and present danger requires consideration of the specific facts and circumstances of each case., Returning to the case at hand, we are of the opinion that, prima facie, the offence under section 18 of the Unlawful Activities (Prevention) Act is not made out, as the appellant's act does not fall within the definition of a terrorist act under section 15 of the Act; there is no material to suggest that the article hosted by the appellant provokes people to take up arms or resort to violence. Regarding section 13 of the Act, we hold that there is sufficient material to prima facie hold that the appellant can be tried for the offence, as there is prima facie evidence on record. Concerning section 121 of the Indian Penal Code, we are of the opinion that the material on record does not disclose the commission of the offence of waging war against the Government of India. With respect to the offence under section 153‑B of the Indian Penal Code, the offending article does not attempt to bring about disaffection on the basis of caste or religion; therefore, we opine that the offence under section 153‑B is not made out from the material on record. Regarding offences under sections 35 and 39 of the Foreign Contribution (Regulation) Act, there is sufficient material to take the prima facie view that the appellant received remittances from overseas without intimating the authorities, and therefore there is sufficient evidence for the appellant to stand trial for the same., The act was allegedly committed eleven years ago. From then until now, no evidence has been brought on record that the offending article was responsible for provoking persons to take up militancy; not a single witness has testified to this. In the other cases in which the appellant was arrested, he was granted bail in all of them. On the facts, the bar of the proviso to section 43D(5) is not applicable because the appellant's act does not fulfil the requirements of section 15 of the Unlawful Activities (Prevention) Act; therefore, the appellant cannot be tried for the offence under section 18 of the Act. Although there is prima facie material for the appellant to stand trial for the offence under section 13 of the Act and sections 35 and 39 of the Foreign Contribution (Regulation) Act, this does not impede the appellant from being granted bail. Accordingly, upon furnishing a personal bond of Rs 50,000 (rupees fifty thousand) and one surety of the same amount to the satisfaction of the Trial Court, the appellant shall be enlarged on bail forthwith if not required in any other case. Criminal Appeal No. 42/2022 is allowed., For the same reasons as above, the quash petition of the petitioner, CRM (M) No. 472/2023, partly succeeds. The charges framed for offences under section 18 of the Unlawful Activities (Prevention) Act, section 121 of the Indian Penal Code, and section 153‑B of the Indian Penal Code are quashed. The petitioner shall stand trial for offences under section 13 of the Unlawful Activities (Prevention) Act and sections 35 and 39 of the Foreign Contribution (Regulation) Act.
id_895	0	Original Jurisdiction Between: Dr. Sharanya Mohan and 43 others Petitioners And: The Union of India and 6 others Respondents., Annexure A: Copy of the impugned notification No. DME/PS/157/2020‑21, dated 15 February 2021, issued by the Directorate of Medical Education (the third respondent). Annexure B: Copy of the Impugned Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Rules 2006 vide Government Notification No. HFW 79 RGU 2011 dated 17 July 2012. Annexure C: Copy of the Impugned Karnataka Compulsory Service Training by Candidates Completed Medical Courses (Counselling, Allotment and Certification) Rules 2015 Government Notification No. HFW 249 HSH 2015, dated 24 July 2015. Annexure D: Copy of the Impugned Karnataka Compulsory Service by Candidates Completed Medical Courses Act 2012 (Compulsory Act). Annexure E to W: Documents with respect to admission of Petitioners No. 1 to No. 40 into the seventh respondent college and final year marks. Annexure X to Z and AA to AW: Documents with respect to admission of Petitioners No. 41 to No. 44 into the seventh respondent college and final year marks. Annexure AX: Copy of the article https://timesofindia.indiatimes.com/city/bengaluru/7k-fresh‑mbbs‑grads‑set‑to‑begin‑1‑year‑rural‑service‑in‑state/articleshow/81200508.cms. Annexure AY: Pro Forma Bond. Annexure AZ: Copy of the press statement of the Health Minister of the second respondent. Annexure AAA: University Grants Commission Notification on Refund of Fees and Non‑Retention of Original Certificates dated October 2018. Annexure Vakalathnamas., The Karnataka Common Entrance Test (KCET) was conducted on 12 May 2015 and 13 May 2015. The Consortium of Medical, Engineering and Dental Colleges of Karnataka (COMEDK) exam was conducted on 3 May 2015. The All India Pre‑Medical Test (AIPMT) was conducted on 31 May 2015. KCET results were announced on 8 June 2015; COMEDK results were announced on 11 June 2015. The first round of COMEDK counselling was conducted from 12 May 2015 to 13 May 2015. KCET first round of counselling, results and reporting to allotted colleges took place from 17 June 2015 to 30 June 2015. KCET second round of counselling, results and reporting to allotted colleges took place from 16 July 2015 to 17 July 2015, followed by an extended second round from 17 July 2015 to 24 July 2015. The Karnataka Compulsory Service by Candidates Completed Medical Courses Act 2012 came into force on 24 July 2015 and the Karnataka Compulsory Service by Candidates Completed Medical Courses Rules 2015 came into force on the same date. The All India Medical Pre‑Medical Test (AIPMT) Re‑Exam 2015 was conducted on 25 July 2015. Registration and option entry for AIPMT were between 19 August 2015 and 21 August 2015; AIPMT first round of counselling, results and reporting to allotted colleges were between 22 August 2015 and 27 August 2015. The second round of COMEDK counselling, results and reporting to allotted colleges were between 1 September 2015 and 7 September 2015. The second round of AIPMT counselling, results and reporting to allotted colleges were between 9 September 2015 and 15 September 2015. The third round of AIPMT counselling, results and reporting to allotted colleges were between 14 September 2015 and 16 September 2015. The third round of COMEDK counselling was conducted from 14 September 2015 to 16 September 2015. KCET third round of counselling results were announced and reporting to allotted colleges took place from 26 September 2015 to 30 September 2015. KCET mop‑up round of counselling results and reporting to allotted colleges were on 5 October 2015. From 12 May 2015 to 15 October 2015 the petitioners initiated the process of admission to join their respective medical courses., The National Medical Commission Act 2019 came into force on 8 August 2019 and the Indian Medical Council Act 1956 was repealed, resulting in the dissolution of the Medical Council of India. Judgment in W.P. (Civil) No. 376 of 2018, Association of Medical Super Specialty Aspirants and Residents and Others v. Union of India, was passed by the Hon'ble Supreme Court of India on 19 August 2019, holding that states are empowered to compel candidates who have completed medical education to render compulsory rural service, while directing the Union of India to prescribe a uniform policy applicable to all states. Judgment in W.P. No. 40566/2015, Ms. Bushra Abdul Aleem v. Government of Karnataka, was passed by the Hon'ble High Court of Karnataka on 31 August 2019, upholding the Karnataka Compulsory Service law but declaring its prospective application only to students admitted after 24 July 2015. The Constitution Bench of the Hon'ble Apex Court in Tamil Nadu Medical Officers Association and Others v. Union of India, 2020 SCC OnLine SC 699, upheld the National Eligibility cum Entrance Test (NEET) for medical courses and held that states/colleges are barred from conducting separate entrance examinations; admission must be divided between All India Quota and State Quota, and the power of states to implement existing reservation is not interfered with. Consequently, the Karnataka Compulsory Service by Candidates Completed Medical Courses Act 2012 became infructuous., The petitioners challenge the validity of the impugned notification No. DME/PS/157/2020‑21 dated 15 February 2021 issued by the Directorate of Medical Education (the third respondent). They also seek the quashing of Rule 11 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Rules 2006 vide Government Notification No. HFW 79 RGU 2011 dated 17 July 2012, insofar as it relates to candidates admitted to the MBBS course executing bonds, on the ground that it is ultra vires the Karnataka Professional Education Institutions (Regulation of Admission and Determination of Fees) Act 2006 as well as the National Medical Commission Act 2019. Further, they seek the quashing of Rule 12 of the Karnataka Compulsory Service Training by Candidates Completed Medical Courses (Counselling, Allotment and Certification) Rules 2015 Government Notification No. HFW 249 HSH 2015 dated 24 July 2015, insofar as it relates to issuance of completion certificates to candidates who have successfully completed rural service, on the ground that it is ultra vires the Karnataka Professional Education Institutions (Regulation of Admission and Determination of Fees) Act 2006, the University Grants Commission Act 1956 and the National Medical Commission Act 2019. The petitioners also pray that all bonds executed by them pursuant to Rule 11 be declared void and that the Karnataka Compulsory Service by Candidates Completed Medical Courses Act 2012 be declared a non‑est law., The petitioners submit that thousands of aspiring students from 12 May 2015 to 15 October 2015 took up various exams such as KCET, COMEDK and AIPMT to join the Bachelor of Medicine and Bachelor of Surgery (MBBS) five‑year integrated course starting from 2015. The Karnataka Compulsory Service by Candidates Completed Medical Courses Act 2012 (Compulsory Act) and the Karnataka Compulsory Service by Candidates Completed Medical Courses Rules 2015 came into force on 24 July 2015. Several writ petitions were filed challenging the constitutional validity of the above law. The Hon'ble High Court of Karnataka, while disposing of W.P. No. 40566/2015 Bushra Abdul Aleem v. Government of Karnataka, held that the law would apply prospectively and not retrospectively to students who secured admission after 24 July 2015. The Hon'ble Supreme Court, in the case of Association of Medical Super Specialty Aspirants and Residents and Others v. Union of India, held that states are empowered to compel candidates who have completed medical education to render compulsory rural service, but directed the Union of India to prescribe a uniform policy. The National Medical Commission Act 2019 introduced a paradigm shift in medical education admission policies, vesting the power to regulate medical courses solely in the Central Government, while leaving the State Government's powers regarding reservation within the State quota untouched., The petitioners further submit that the impugned notification stems from the Compulsory Act, which has become a non‑est law in light of the National Medical Commission Act and the upholding of NEET by the Constitution Bench of the Hon'ble Apex Court in Tamil Nadu Medical Officers Association and Others v. Union of India, 2020 SCC OnLine SC 699. They highlight that many states in India do not have a compulsory rural service programme, giving candidates from those states a distinct advantage over Karnataka students, thereby violating the principle of equality and fundamental rights. The second respondent State has collected bonds from students as per Rule 11 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Rules 2006 (Annexure B). This rule is ultra vires the Karnataka Professional Education Institutions (Regulation of Admission and Determination of Fees) Act 2006 as well as the Karnataka Educational Institutions Prohibition of Capitation Fee Act 1984, and the impounding of the documents of the petitioners by the third respondent, Directorate of Medical Education, is illegal., The petitioners further submit that most of them appeared for the respective entrance examinations, either KCET or COMEDK, starting from 12 May 2015 to 25 July 2015. They pray that this Hon'ble High Court of Karnataka enlarge the scope of \admission\ to include the commencement of the admission process by either appearing for entrance examinations or by making an application, in light of the Constitution Bench of the Hon'ble Apex Court in Tamil Nadu Medical Officers Association and Others v. Union of India, 2020 SCC OnLine SC 699. They contend that the principles laid down by the Hon'ble High Court of Karnataka in W.P. No. 40566/2015 need to be re‑examined in view of the advent of the National Medical Commission Act, 2019., Petitioners' details: 1. Dr. Sharanya Mohan, Daughter of B.V. Murali Mohan, Age 24, 15/1, 4th Cross, Lakshmi Road, Shantinagar, Bengaluru‑560027. 2. Dr. D/o G Narayana Naik, Age 23, E‑36 Faculty Quarters, Indian Institute of Science, Bangalore‑560012. 3. Dr. Arshiya B.U., Age 24, #17/3 Abhiman, 1st Sector, 10th Main, Near Meenakshi Temple, Nobo Nagar, Canara Bank Colony, Bannerghatta Road, Bangalore‑560076. 4. Dr. Sanjana Ilavarasu, Daughter of S. Ilavarasu, Age 23, #15, 7th A Cross, Kaggadaspura, C.V. Raman Nagar, Bangalore‑560093. 5. Dr. Aishwarya Shukla, Daughter of Premal Shukla, Age 23, 191/2, Shantivan, Ground Floor, 9th Cross, HMT Layout, R.T. Nagar, Bangalore‑560032. 6. Dr. Prarthana C, Daughter of Channakrishna, Age 22, #25, 4th Cross, Mahadeshwaranagar Main Road, Maruthi Nagar, Herohalli, V.N. Post, Bangalore‑560091. 7. Dr. Dhanushree G.S., Age 23, #64, 4th Cross 1st Main Road, JJR Nagar South, Bangalore‑560018. 8. Dr. Mohamed Javeed, Son of Showkatt Ali HunShek, Age 23, #14, 2nd Cross, Marappa Thota, J.C. Nagar, Bangalore‑560006. 9. Dr. Varsa Patra, Daughter of Nityananda Patra, Age 24, Door No. 109, NISH‑7 Apartment #28, RMV Stage 2, Bengaluru‑560094. 10. Dr. Varsha N.R., Daughter of N. Ramalingaiah, Age 23, Flat No. 3‑01, Southern Crystal Apartment, No. 25, Chinnanna Layout, 2nd Main Road, L.R. Bande Road, Kavalbyrsandra, Bangalore‑560032. 11. Dr. Manasa M.R., Age 23, #50 Shiva Sdana, 2nd A Cross, Byrasandra, C.V. Raman Nagar, Bangalore‑560093. 12. Dr. Rahul Tiwari, Son of Mr. Sunil Tiwari, Age 23, 4, Opposite Shiv Book Depot, Shivsinghpura, Nawalgarh Road, Sikar, Rajasthan. 13. Dr. Kultej, Son of Satender, Age 23, 181/19 Arya Nagar, Jhajjar, Haryana‑124103. 14. Dr. Puja S. Nayar, Daughter of Sukuk Nayar, Age 24, Sowkumarya KRA B8, PR Lane, Kuravankonam, Kowdiar PO, Trivandrum‑695003. 15. Dr. Shashank Shekhar, Age 24, 132/9, J Type, Sector 30, Gandhinagar, Gujarat‑382030. 16. Dr. Shruti Singh, Daughter of Shiv Raj Singh, Age 25, 213, C/3A, Gyasuddinpur, Prayagraj, Uttar Pradesh. 17. Dr. Shama Haris Vaniyambalath, Age 25, Greens, J.T. Road, Temple Gate PO, Thalassery, Kannur, Kerala. 18. Dr. Sruthi Ashok, Daughter of Asokan A.S., Age 25, Ayinikkattil House, PO Edakulam, Irinjalakuda, Thrissur, Kerala‑680688. 19. Dr. Abhiram Rajeev, Son of Rajeevan Pillai K., Age 25, Rakendu, Peruvelikkara PO, West Kallada, Kollam‑691500. 20. Dr. Srilakshmi K.J., Daughter of Jayaprakasan K.K., Age 25, 9/384, Kusumagiri Mental Health Centre, Kusumagiri PO, Kakkanad, Kochi, Kerala‑682030. 21. Dr. Anuroopa Mary Das, Daughter of David K.I., Age 24, Sarangam Kavumkathara, Opposite Jaya Carmel Convent, Manganam, Kottayam, Kerala. 22. Dr. Heba Ravisankar, Daughter of V. Ravisankar, Age 25, Pangalthodi Poothakkulam PO, Paravoor, Kollam, Kerala‑691308. 23. Dr. Alisha P.V., Daughter of Vills Sams G., Age 25, Dayal Cottage, Cheenikkala, Mayam PO, Thiruvananthapuram, Kerala‑695505. 24. Dr. Famia Miriam Judy, Daughter of Judy Pius Fernandez, Age 23, Calmia, House No. 3, Bishop Palace Nagar, Thangassery, Kollam, Kerala‑691007. 25. Dr. Ajay Varghese, Son of Varghese T.V., Age 25, Thekkinedath, Mallussery, Vattapparambu PO, Ernakulam‑683579. 26. Dr. Sunanda Majumder, Daughter of Nandan Krishna Majumder, Age 24, Hastings Tower, Flat No. 1D, 41 Bosepukur Road, Kolkata‑700042. 27. Dr. Sanya Ansari, Daughter of Shahid Akhtar Ansari, Age 24, Flat 102, Marrakech 30, Shobhana Nagar, Vasna Road, Vadodrum‑390007. 28. Dr. Shilpy Priyadarshini, Daughter of Ashok Kumar Pandey, Age 25, Gorakhpur, Uttar Pradesh. 29. Dr. Aiswarya P. Kumar, Daughter of C. Padmakumar, Age 25, Threveni, Sneha Nagar‑40, Uliyakovil PO, Kollam, Kerala‑691019. 30. Dr. Smile Arora, Son of Ashok Kumar Arora, Age 25, 506/9 Shivpuri, Near Dayal Market, Gurgaon‑122001. 31. Dr. Abhirami D, Daughter of Dileep D., Age 25, Thalayanaveliyakath House, Elamkunnappuzha PO, Opposite St. Sebastian Church, Ernakulam, Kerala. 32. Dr. Mohit Sethi, Son of Satpal Sethi, Age 24, V.P.O. Darbi, District Sirsa, Haryana‑125055. 33. Dr. Shweta Beniwal, Daughter of Janak Raj Beniwal, Age 24, H. No. 216, Part‑1, Sector‑20, HUDA, Sirsa, Haryana‑125055. 34. Dr. Parinika Gupta, Daughter of Raju Ram Gupta, Age 24, Flat No. 402, Block C1C, Samridhi Apartment, Sector 18B, Dwarka, New Delhi‑110078. 35. Dr. Sanjana Anand, Daughter of Anand Venkatanarayanan, Age 23, Plot 24, Door 4, Ramnagar 2nd Main Road, Nanganallur, Chennai‑600061. 36. Dr. Ajay, Son of Ishwar Singh, Age 23, No. 423, Sector 19 Part 1, HUDA Kaithal, Haryana‑136027. 37. Dr. Sarthak Jain, Son of Vinod Kumar Jain, Age 23, H‑157, Shastri Nagar, Meerut‑250004. 38. Dr. Chitranjan Suthar, Son of Om Prakash Suthar, Age 26, House No. 100, Opposite BBS School, Tilak Nagar, Sagar Road, Bikaner, Rajasthan. 39. Dr. Sheeba Iram, Daughter of Afsar Nauazi, Age 25, #15/1, Flat No. 7, Vishram Apartment, Davis Road, Richards Town, Bangalore‑560084. 40. Dr. Santra Susan Joseph, Daughter of Mony Joseph, Age 25, #414, 2nd Kaveri Nagar, I.R. Bande, R.T. Nagar, Bangalore‑560032. 41. Dr. Gayathri R, Daughter of Radhakrishna Kurup Ragam, Age 24, Near T.B. Junction, Karuvatta PO, Alappuzha, Kerala‑690517. 42. Dr. Bisni Basheer Nambipunnilath, Daughter of N.K. Basheer Nambipunnilath, Age 24, House, Kovilakam Road, Perinjanam PO‑680686. 43. Dr. Rohan Thomas Senpathy, Son of George Kaleekan Senapathy, Age 24, MPRA 49, Rappadi Kalathil Lane, Murinjapalam M.C., Trivandrum, Kerala‑695011. 44. Dr. Misbha Sharieff, Daughter of S.R. Sharieff, Age 23, 401, Sharieff Regalia, Promenade Road, Pulikeshi Nagar, Bangalore‑560005., Respondents: 1. Union of India, Ministry of Health & Family Welfare, Near Udyog Bhawan Metro Station, Maulana Azad Road, New Delhi‑110011, represented by the Secretary to the Government. 2. State of Karnataka, Department of Health and Family Welfare, Vikas Soudha, Bengaluru‑560001, represented by its Principal Secretary. 3. Directorate of Medical Education, Ananda Rao Circle, Bengaluru‑560009. 4. Rajiv Gandhi University of Health Sciences, 4th T Block, Jayanagar, Bengaluru‑560041, represented by its Registrar. 5. National Medical Council, Head Office, Pocket‑14, Sector‑8, Dwarka, New Delhi‑110077, represented by its Secretary. 6. Karnataka Medical Council, 70, 2nd Floor, Vaidyakeeya Bhavana, K.R. Road, H.B. Samaja Road Corner, Basavanagudi, Bengaluru‑560004. 7. B.R. Ambedkar Medical College and Hospital, Kadugondanahalli, Bangalore‑560045., The petitioners most respectfully state that the addresses of the petitioners are as stated in the cause title and that of their counsel, Mr. B.C. Thiruvengadam, Mrs. Revathi Thiruvengadam, Mr. Manik Thiruvengadam, Ms. Ramya Thiruvengadam, Mrs. Navita Rathore and Mr. Manojkumar, are at Thiru & Thiru Chambers, No. 31 Nandidurg Road, Bangalore‑560046 for service of notice. The address of the respondents for the above purpose is as stated in the cause title. This petition challenges the validity of the impugned notification No. DME/PS/157/2020‑21 dated 15 February 2021 issued by the Directorate of Medical Education (the third respondent). The petitioners also seek the quashing of Rule 11 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Rules 2006 and Rule 12 of the Karnataka Compulsory Service Training by Candidates Completed Medical Courses Rules 2015, as well as the declaration that all bonds executed pursuant to these rules are void and that the Karnataka Compulsory Service by Candidates Completed Medical Courses Act 2012 is a non‑est law., The petitioners submit that most of them took up the respective exams, attended the respective counselling sessions and were admitted to the seventh respondent college to pursue the MBBS course. A few students obtained admission through the management quota. The details of the petitioners, their admission round, dates of counselling, admission to course and admission to college are compiled in Annexures E to AW for the kind perusal of this Hon'ble High Court of Karnataka. For example, Dr. Sharanya Mohan (Annexure E) was admitted through KCET first round, counselling on 17‑06‑2015, admission to course on 29‑06‑2015 and admission to college on 01‑07‑2015; Dr. Swathi G.N. (Annexure F) was admitted through KCET first round, counselling on 25‑06‑2015, admission to course on 25‑06‑2015 and admission to college on 22‑07‑2015; Dr. Arshiya B.U. (Annexure G) was admitted through KCET second round, counselling on 02‑07‑2015, admission to course on 13‑07‑2015 and admission to college on 23‑07‑2015; and so forth for all petitioners up to Dr. Shama Haris (Annexure V) who was admitted through COMEDK third round, counselling on 13‑07‑2015, admission to course on 13‑07‑2015 and admission to college on 16‑09‑2015.
id_895	1	The petitioners before the Hon'ble High Court of Karnataka are students who have successfully completed their four and a half years of MBBS; almost all of them have completed their one‑year house surgeon programme (internship) and a few are on the verge of completing their internship. They aspire to pursue postgraduate courses and are preparing for the National Eligibility cum Entrance Test (NEET) conducted by the National Medical Council (NMC) in accordance with Section 14 of the National Medical Commission Act, 2019. The examination is scheduled to be held on 18 April 2021. For this purpose, the petitioners are required to be registered with the Karnataka Medical Council (KMC). In order to obtain the registration, KMC requires a No Objection Certificate from the Directorate of Medical Education (DME). The DME, however, refuses to issue the No Objection Certificate unless the petitioners agree to render compulsory rural service or pay the amount claimed as damages., The Karnataka Legislature enacted the Karnataka Compulsory Service by Candidates Completed Medical Courses Act, 2012 (the \Compulsory Act\) which came into force on 24 July 2015 and was amended by a notification dated 11 July 2017. Section 3 of the Act provides that every candidate after successful completion of the MBBS degree and one‑year internship shall undergo one‑year compulsory rural service training in Government Primary Health Centres or Government Hospitals in rural areas allotted on the basis of merit through a counselling process. Such a candidate shall be called a Junior Resident trainee. No university shall award a degree to a candidate who is required to undergo and does not undergo the compulsory rural service training, subject to a proviso that a candidate pursuing a postgraduate degree or diploma may undergo the one‑year compulsory service training immediately after completion of such course and may be given a provisional MBBS certificate for the purpose of pursuing the postgraduate degree. The Act also stipulates that the stipend payable to a candidate undergoing compulsory rural service shall be Rs 100 less than the minimum gross salary of General Duty Medical Doctors in Health and Family Welfare Services, and that a candidate who does not undergo the compulsory rural service shall not be eligible for permanent registration under the Karnataka Medical Registration Act, 1961 or the Indian Medical Council Act, 1956, although temporary registration may be granted until the training is completed., Subsequent to the enactment of the Compulsory Act, several writ petitions were filed. By a common order dated 31 August 2019 in W.P. No. 40566/2015, Bushra Abdul Aleem v. Government of Karnataka, the Hon'ble High Court of Karnataka upheld the validity of the Act, holding that it would have prospective effect and would apply to students who secured admission after 24 July 2015., The Hon'ble High Court, in the same judgment, referred to the Supreme Court of India decision in WP (Civil) No. 376 of 2018, Association of Medical Super‑Specialty Aspirants and Residents v. Union of India, noting that neither the High Court nor the Supreme Court had the benefit of examining the paradigm shift in medical education policy that occurred with the enactment of the National Education Commission Act, 2019, which came into force on 8 August 2019., Prior to 8 August 2019, admission to postgraduate courses was made either through a Common Entrance Test (CET) conducted by the State of Karnataka or through the Consortium of Medical, Engineering and Dental Colleges of Karnataka (COMEDK) for postgraduate and super‑specialty courses. At that time, it was within the State Government's jurisdiction to regulate admissions to medical courses in Karnataka., With the coming into force of the National Medical Commission Act, 2019, admission to postgraduate and super‑specialty courses from the academic year 2020 onwards must be strictly as per Section 14 of the Act. Section 14 mandates a uniform National Eligibility‑cum‑Entrance Test (NEET) for admission to undergraduate and postgraduate super‑speciality medical education in all medical institutions governed by the Act. The Commission shall conduct NEET in English and other languages as specified, and shall prescribe the manner of common counselling by the designated authority for admission to undergraduate and postgraduate super‑speciality seats, with the Central Government conducting counselling for All‑India seats and the State Government for State‑level seats., The implications of the NMC Act, 2019 are that the Act supersedes the Karnataka Compulsory Service Act, 2012 because the latter interferes with the powers conferred under Section 14 of the NMC Act concerning admission to postgraduate and super‑speciality courses. Consequently, any student who has completed undergraduate or postgraduate studies after 8 August 2019 must compulsorily prepare for and appear in NEET, which is an All‑India entrance examination setting a uniformly high standard for aspirants., Since NEET is conducted on an All‑India basis, it is essential that a level playing field be ensured for all candidates across India without any impediments imposed by State legislation. Of the 28 States and 10 Union Territories in India, about eleven States have provided for compulsory rural service, while in many others the service is optional or varies in tenure from one to four years, and several States exclude students from non‑government institutions. The Supreme Court, in Association of Medical Super‑Specialty Aspirants and Residents v. Union of India, directed the Union of India and the NMC to formulate a uniform policy regarding compulsory service for doctors trained in government institutions., The disparity created by the Karnataka Compulsory Act places Karnataka students at a disadvantage compared to students from States where no mandatory rural service is required. This violates Article 14 of the Constitution because those students can prepare for NEET without the burden of compulsory rural service, thereby gaining an advantage in counselling and admission to postgraduate courses., The Supreme Court has specifically directed the Union of India and the NMC to formulate a uniform policy for compulsory rural service across India. Accordingly, the Karnataka Compulsory Act should be kept in abeyance and the impugned notification in Annexure‑A must be quashed., Many students from other States who have completed their undergraduate or postgraduate education study in urban centres such as Bengaluru, Mangalore or Mysuru and are not conversant with Kannada or the local language may be compelled to work in rural areas without adequate communication skills. This could cause more harm than good to patients, as effective medical consultation requires proficiency in the local vernacular., The advent of NEET under the NMC Act deprives the Karnataka State Government and its medical institutions of the power to conduct entrance examinations. Seats are now allocated under All‑India, State and Management quotas. Consequently, a Karnataka candidate appearing for NEET postgraduate or super‑speciality courses may be offered a seat anywhere in India and vice‑versa. This makes the effective implementation of the Compulsory Act impossible, as it would require candidates unfamiliar with the local language to provide medical services in rural areas, creating a serious communication gap and potential risk to patient health., Under the NMC Act, the Ethics and Medical Registration Board (the \Board\) is vested with the exclusive authority to maintain a National Register of all licensed medical practitioners, regulate professional conduct and medical ethics, and function as an appellate authority for actions taken by State Medical Councils. Section 31 of the NMC Act empowers the Board to add or remove the name or qualification of a person, while Section 32 authorises the NMC to grant a licence to practice medicine as a community health provider. Thus, the enrolment of a candidate who has successfully completed the MBBS course lies within the prerogative of the Board and the NMC, and the State Government has no role in withholding the rights of a qualified person., Section 3(4) and the proviso to Section 3(4) of the Karnataka Compulsory Act, which provide for temporary registration, contravene the central law provision of Section 31 of the NMC Act and are therefore void. Moreover, the advent of NEET means that the majority of students admitted to other colleges are from other States, rendering the Karnataka Compulsory Act, 2015 ineffective and invalid in light of Union legislation., The High Court, in Bushra Abdul Aleem v. Government of Karnataka, did not have the benefit of considering the impact of the NMC Act, 2019, which came into effect on 8 August 2019. Similarly, the Supreme Court, in Association of Medical Super‑Specialty Aspirants and Residents v. Union of India, could not have taken note of the effect of NEET and the central legislation. Accordingly, the petitioners submit that, under the changed circumstances, the Karnataka Compulsory Service Act, 2012 and any rules enacted for compulsory rural service are non‑est and have become spent law., Section 3(2) of the Karnataka Compulsory Act is also illegal and unenforceable because it conflicts with the University Grants Commission Act, 1956. Section 12 and Section 12A of the UGC Act override any other law, including the Compulsory Act, thereby rendering Section 3(2) unenforceable., Although the Supreme Court has held that compulsory rural service should exist, until the NMC and the Union of India formulate and implement a uniform policy as directed by the Court, the Karnataka Compulsory Act, 2012 and Rule 11 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006 create inequality and disadvantage for Karnataka students who have completed undergraduate, postgraduate or super‑speciality courses., In view of the foregoing facts, the Karnataka Compulsory Service Act, Annexure‑D, and Rule 12 of the Karnataka Compulsory Service Training by Candidates Completed Medical Courses (Counselling, Allotment and Certification) Rules, 2015 (Government Notification No. HFW‑249/HSH‑2015 dated 24‑July‑2015) have no legal standing due to the advent of the National Medical Commission Act, 2019 and the University Grants Commission Act, 1956., There are approximately 65 medical colleges in Karnataka, producing an average of 7,000 MBBS graduates each year, as reported in the Times of India article (https://timesofindia.indiatimes.com/city/bengaluru/7k-fresh-mbbs-grads-set-to-begin-1-year-rural-service-instate/articleshow/81200508.cms). This article is submitted as Annexure‑AX for the Court's perusal., Since the impugned rule came into force in 2015, roughly 7,000 undergraduate students should have undergone rural service. Section 3(3) of the Compulsory Act provides that a candidate undergoing one‑year compulsory rural service shall receive a stipend equal to Rs 100 less than the minimum gross salary of General Duty Medical Doctors in Health and Family Welfare Services. In 2015, an entry‑level doctor in Karnataka earned a monthly salary of Rs 21,000; consequently, the stipend for a rural service doctor would be Rs 20,900 per month, amounting to Rs 2,40,000 per year. By contrast, the bond demanded from a student who refuses rural service is Rs 10,00,000, an exorbitant amount constituting extortion and unjust enrichment by the State., The impugned rules in Annexure‑B provide for a maximum penalty of Rs 1,00,000, whereas the pro‑forma bond forced upon students stipulates damages of Rs 10,00,000. The notification in Annexure‑A demands a penalty of Rs 30‑50 lakhs, which is contrary to Section 6 of the Compulsory Act, 2012. This inconsistency further demonstrates the arbitrary and illegal nature of the State's actions., If all 7,000 students were to join the rural service programme, the Karnataka Government would have to spend approximately Rs 2.40 lakh per student, amounting to an aggregate outlay of about Rs 168 crore. No budgetary allocation of such magnitude appears in the State's 2015‑2016 budget, nor in subsequent budgets. The Government recently raised the salary of fresh doctors from Rs 21,000 to Rs 30,500 per month, which would increase the annual cost per doctor to roughly Rs 3.65 lakh, raising the total outlay to about Rs 255.3 crore for 2021, yet the 2021 budget makes no provision for this expenditure., A press statement by the Karnataka Medical Education & Health Minister, Dr. K. Sudhakar, published in the New Indian Express on 25 December 2020 (https://www.newindianexpress.com/states/karnataka/2020/dec/25/k-sudhakar‑wishlist‑big‑health‑budget‑next‑year2240859.html), indicates that the Government has enrolled only 1,000 postgraduate medical students for rural service and makes no reference to undergraduate students. To date, no undergraduate student who completed MBBS since 2015 has been compelled to undergo compulsory rural service. Only students selected under the government quota have been asked to sign the bond, which is illegal, unconstitutional and discriminatory., Some petitioners have been asked to execute a bond under the amended Rule 11 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006. The Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 does not empower the Government to make rules imposing bonds on medical students for any purpose other than eligibility. Section 23 of the Act confers rule‑making power only with respect to eligibility criteria, as defined in Section 8: \No candidate shall be admitted to a professional educational institution unless the candidate possesses such educational or equivalent qualification as may be prescribed.\ Therefore, any rule compelling medical students to sign bonds for rural service is ultra vires the Act and must be quashed., The recitals of the impugned rules state that the power to frame them was obtained under Section 14(1) of the Karnataka Educational Institutions Prohibition of Capitation Fee Act, 1984. However, that Act merely regulates fee structures of private educational institutions and provides for penalties; it does not empower the Government to impose bonds on candidates for medical courses. Consequently, the State Government could not lawfully derive rule‑making authority from a statute that does not confer such power, rendering the rules ultra vires and liable to be set aside., The petitioners have not filed any other appeal or petition before this Court or elsewhere, and the present petition is not barred by any other law. They have no alternative and efficacious remedy and have paid the requisite court fees., In light of the foregoing facts, the petitioners invoke the extraordinary jurisdiction of Article 226 of the Constitution of India and pray that this Hon'ble High Court of Karnataka quash the impugned notification in Annexure‑A issued by the Directorate of Medical Education, the impugned Rule 11 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006 (Annexure‑B), and Rule 12 of the Karnataka Compulsory Service by Candidates Completed Medical Courses Act Rules, 2015 (Annexure‑C), declaring them wholly illegal, void and liable to be set aside., The petitioners submit that, upon the coming into effect of the National Medical Commission Act, 2019, the Karnataka Compulsory Service by Candidates Completed Medical Courses Act, 2012 has become non‑est for the following reasons: (i) Section 14 of the NMC Act empowers the Central Government with the exclusive right to conduct entrance examinations for medical courses pan‑India, known as NEET, thereby precluding the State Government and private educational institutions from holding such examinations; (ii) The NMC Act, through NEET, regulates admission to both government and private medical institutions under three categories—All‑India, State and Management quotas—with eligibility for admission to any medical course being solely through NEET, irrespective of whether the course is undergraduate, postgraduate or super‑speciality. Consequently, the Karnataka Government's power to allot seats is substantially curtailed and limited to the State quota matrix.
id_895	2	Thus the Karnataka Compulsory Service by Candidates Completed Medical Courses Act 2012 (Compulsory Act) needs to be declared as a non est law by this Honourable Supreme Court of India. With the onset of the National Medical Council Act 2019, from the academic year 2020 onwards, admission to postgraduate and super specialty courses must be strictly under Section 14 of that Act as elaborated in paragraphs 7 to 16 supra. This means that the petitioners who are aspiring to join postgraduate courses will fall within the ambit of Section 14 of the National Medical Commission Act, and the implications are as follows: the National Medical Council Act 2019 by the Union of India supersedes the Compulsory Act of 2015 as it interferes with and infringes the powers conferred under Section 14 of the National Medical Council Act, 2019, in so far as admission to postgraduate and super specialty courses are concerned., In order to be eligible to seek admission to postgraduate and super specialty courses, any student who has successfully completed undergraduate or postgraduate studies after 08-08-2019 has to compulsorily prepare for and appear in the National Eligibility cum Entrance Test (NEET) under the National Medical Council Act. NEET, being an All‑India entrance exam, has set an extremely high standard which requires continuous and immense research and preparation for aspiring candidates for postgraduate and super specialty courses. Hence, it is humbly submitted that the Compulsory Act is a spent force, has become a non est law and has been superseded by the National Medical Commission Act 2019., Since preparation and admission for postgraduate courses is on an All‑India basis, the authorities conducting NEET should ensure a level playing field uniformly applicable to all candidates throughout India without any fetters imposed by any State legislation. To the best of the petitioners' knowledge, out of 28 States and 10 Union Territories in India, about 11 States have provided for rural service and made it mandatory, while it is merely optional in a few States; some States have a varied tenure of rural service ranging from one to four years and many exclude students studying in non‑government institutions from rural service. This glaring inconsistency was observed by the Honourable Supreme Court of India in WP (Civil) No. 376 of 2018, Association of Medical Super Specialty Aspirants and Residents and Ors. vs. Union of India and Ors., and the Court directed the Union of India and the National Medical Commission to have a uniform policy, extracted below: “Taking note of the fact that certain State Governments have rigid conditions in the compulsory bonds to be executed by the appellants and the felt need of uniformity in the matter pertaining to the compulsory bonds, we suggest that suitable steps be taken by the Union of India and the Medical Council of India to have a uniform policy regarding the compulsory service to be rendered by the doctors who are trained in government institutions.”, The above demonstrates that several States in India do not require candidates to undergo compulsory rural service. Students studying in those States have a distinct advantage compared to students of Karnataka who have to undergo mandatory rural service as per the Compulsory Act; therefore Article 14 of the Constitution is violated because those students can prepare for entrance exams, appear for NEET conducted under the National Medical Commission Act 2019 and participate in counselling and secure admissions in postgraduate courses one year ahead of the medical graduates of Karnataka., To reiterate, several States in India do not have a compulsory rural service programme for candidates graduating with MBBS degrees, and thus they do not have to undergo compulsory rural service while preparing for and attempting NEET for postgraduate and super specialty courses. Candidates graduating from Karnataka with an MBBS degree lose one year by undergoing compulsory rural service as per the Compulsory Act, creating inequality in law. As there is a specific direction by the Honourable Supreme Court of India to the Union of India as well as the National Medical Commission to formulate a uniform policy for compulsory rural service across India, the Karnataka Compulsory Act needs to be declared a non est law and the impugned notification at Annexure‑A must be quashed., The impugned notification is also bad in law because, with the advent of NEET and the fact that All‑India quota students from across the country are admitted to various medical courses throughout Karnataka, it is practically and logically impossible to impose compulsory rural service on students from other States on account of language barriers. Consequently, the notification suffers from a basic infirmity and appears adventurous without taking into consideration the welfare of the rural people of the State., The petitioners further submit that the proviso to Section 3(4) of the Compulsory Act attempts to control the registration of successful medical graduates even for temporary purposes. This power is taken away with the advent of the National Medical Commission Act, and the power to register the name of a candidate who has successfully completed MBBS now vests solely under the National Medical Commission and cannot be infringed., The petitioners further submit that the amended Rule 11 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006 is a bad law because the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act 2006 does not empower the Government to make rules with respect to candidates who join the medical course for anything other than qualification. Section 23 of that Act cannot be misused contrary to the provisions of the main statute. Section 8 of the Act reads: “Eligibility: No candidate shall be admitted to a professional educational institution unless the candidate possesses such educational or equivalent qualification as may be prescribed.” Hence, if the Government wishes to frame a rule with respect to students, it should be confined only to eligibility as prescribed under Section 8, and the Government does not have the power to compel a candidate to execute any bond for any sum of money for the purpose of rural service. Therefore, the amended Rule 11, insofar as it compels medical students to sign bonds for rural service, is ultra vires the Act and the provision needs to be quashed., Notwithstanding the above, the Government of Karnataka, in the instant case, framed the impugned rules with the power purportedly derived from Section 14(1) of the Karnataka Educational Institutions Prohibition of Capitation Fee Act 1984. A detailed reading of that Act shows that its purpose is to regulate private educational institutions by regulating fee structures and providing for penalties. It does not impose any obligation on a candidate who joins a medical course. Consequently, the State Government could not have envisaged framing rules for a statute deriving powers from a different statute, and neither statute gives a rule‑making power to impose execution of bonds or penalties. Hence, there is a gross malady on the part of the Government in masquerading a rule as deriving from the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act 2006, and the rule is liable to be quashed., Thus, Rule 11 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006 is ultra vires the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act 2006. The State has no power to create rules that compel students to sign bonds as it does not fall within the meaning of education or equivalent qualification as stated in Section 8 of the parent Act. Consequently, the rule is illegal and void, and all bonds executed on the basis of the said rule are void ab initio and cannot be enforced in law., The petitioners further submit that the said rule has been used to coerce students to sign bonds much against their will, constituting social duress, especially when such a rule does not have statutory legs to stand. The insistence on the bond and coercion, in addition to the fact that execution of the bond is per se illegal, amounts to unjust enrichment. If the Government were to render rural service, it would have to spend Rs 30,400 per candidate per month, i.e., Rs 3,64,800 per annum per candidate. Demanding a sum of Rs 10 lakh per student is therefore unjust enrichment. Under no circumstances can a penalty exceed Rs 3,64,800; hence the rule needs to be quashed., The second respondent has never been serious in implementing Section 3 of the Compulsory Act in spirit. If the intentions were sincere, there would have been a proper and adequate budget allocation to pay the stipend or salary of approximately 7,000 MBBS graduates at the rate of Rs 30,400 per month, i.e., Rs 3,64,800 per person per year, amounting to roughly Rs 255.3 crores per annum., The Honourable Minister for Health and Medical Education admitted that only 1,000 postgraduate students have been deployed for rural services in the past, clearly proving that no candidate who has completed undergraduate studies has been recruited for rural service. Thus, targeting the petitioners is discriminatory and unfair., Most of the petitioners have completed their house‑surgeonship (internship) at least two months ago, yet neither the college nor the Directorate of Medical Education (Respondent No. 3), nor the Karnataka Medical Council (Respondent No. 6), nor Rajiv Gandhi University of Health and Sciences (Respondent No. 4), nor the Government of Karnataka (second respondent) has communicated in writing to the petitioners regarding: (a) the procedure to be adopted for implementation of compulsory rural placements; (b) commencement date of the programme; (c) the list of primary health centres; (d) the exact remuneration payable; (e) vernacular capability of each candidate; (f) rules for duty hours, holidays and leave; (g) information regarding accommodation and allowances such as house rent allowance, travel allowance, conveyance allowance, dearness allowance; and (h) rules for substitution. This shows that the conduct of the Government of Karnataka and the Directorate of Medical Education has not been fair and amounts to harassment of the petitioners., Even if this Honourable Supreme Court of India were to hold Section 3 of the Compulsory Act 2012 as valid, it should be uniformly applied to all students who have completed MBBS irrespective of whether they graduated from a government medical college, a government quota in a private medical college, a management quota or any other quota. Hence, the implementation of Section 3 is illegal as it violates Article 14 of the Constitution of India., The impugned notification dated 15‑02‑2021 issued by the Directorate of Medical Education is per se illegal because neither the Government nor the educational institutions have any right to withhold the documents handed over by the petitioners at the time of admission. If the Government is aggrieved over an alleged breach of the purported bond, it has no right of lien over the documents and may only pursue civil remedies. The notification essentially holds the petitioners at ransom. Moreover, the University Grants Commission Notification on Refund of Fees and Non‑Retention of Original Certificates dated October 2018 states that institutions shall not retain original academic and personal certificates; they must verify originals in the presence of the student and return them immediately, keeping only self‑attested copies for records., Without these original documents, the petitioners will not be able to apply for postgraduate courses and seek admission through NEET. The petitioners will also be bereft of employment opportunities, and in light of the pandemic‑induced economic pressure, this violates their constitutional right to life and livelihood enshrined in Article 39 of the Constitution of India. All petitioners have successfully completed their MBBS programme, including four and a half years of education and one year of house‑surgeonship, and are therefore eligible to join the MBBS course and be enrolled as doctors in the register of the Karnataka Medical Council as well as the National Register, as prescribed under the National Medical Commission Act 2019., The petitioners are fully aware of the judgments in W.P. No. 40566/2015 Bushra Abdul Aleem vs. Government of Karnataka (2019 SCC OnLine Kar 3154) and WP (Civil) No. 376 of 2018 Association of Medical Super Specialty Aspirants and Residents and Ors. vs. Union of India. Nevertheless, those judgments were rendered before the National Medical Commission Act came into force on 08‑08‑2019. Hence, Section 3 of the Compulsory Act and the amended Rule 11 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006 contravene the exclusive jurisdiction of the Ethics and Medical Registration Board conferred by Sections 31 and 27 of the National Medical Commission Act., If rural service is to be made mandatory, it should be uniformly applicable to all States and Union Territories in India. Even if one State does not have a mandatory requirement for rural service, imposing it only on Karnataka infringes Article 14 of the Constitution of India. Moreover, the disparity gives candidates graduating from states without compulsory rural service a distinct advantage over Karnataka students in securing postgraduate admissions, infringing Article 19(1)(g) of the Constitution, which guarantees the right to practice any profession and to pursue postgraduate and super specialty education., During the tenure of the petitioners as house surgeons/interns, the Government of Karnataka has not paid them any stipend, whereas it has paid stipends to those who joined government colleges. Hence, the Directorate of Medical Education has no right to equate such petitioners with those admitted to government medical colleges and cannot insist on them rendering compulsory rural service., The government and the colleges/universities have taken bonds from all those admitted directly into government colleges as well as those who secured seats through government quota, requiring payment of Rs 10 lakhs as damages in the event of refusal to render rural service. Moreover, the Directorate of Medical Education imposes a penalty of Rs 30‑50 lakhs in the impugned notification. This creates economic discrimination: affluent students may pay to avoid rural service and retrieve their original documents, while economically weaker students are forced to render service because they cannot afford the damages. Such differential treatment is discriminatory and illegal; if rural service were an educational or social requirement, there should be no mechanism of paying money to avoid it., Rule 12 of the Karnataka Compulsory Service Training by Candidates Completed Medical Courses (Counselling, Allotment and Certification) Rules 2015 (Government Notification No. HF W 249 HSH 2015, dated 24‑07‑2015) is contrary to Section 31 of the National Medical Commission Act 2019 as well as the University Grants Commission Act 1956. The rule impedes the petitioners' right to pursue higher education., The impugned notification in Annexure A of the third respondent, claimed to be issued under the Compulsory Act, was created recklessly without understanding the restrictions imposed by the statute. Section 6 of the Act prescribes a penalty of between Rs 15 lakhs and Rs 30 lakhs, which is a classic example of the State attempting to unlawfully enrich itself., The Honourable Supreme Court of India, in W.P. No. 40566/2015 Bushra Abdul Aleem vs. Government of Karnataka, held that the applicability of the Karnataka Compulsory Service by Candidates Completed Medical Course Act 2012 is prospective and cannot be retrospective; the Act comes into force w.e.f. 24‑07‑2015 and is applicable to students depending on when they were admitted. Two different yardsticks cannot be applied to the same cohort of medical students merely because admission dates vary by a few weeks or months., The term ‘admission’ includes the time from which the selection process has commenced. Admission is deemed to have commenced with the publication of the notification calling for applicants. Some petitioners completed the admission process on or before 24‑07‑2015, while others began the process earlier through All‑India entrance exams, CET, COMED‑K or AIMTU and completed counselling after that date. The Honourable Supreme Court of India directed the Government of Karnataka to constitute, within two months, a High Level Committee/Grievance Redressal Cell to address complaints of aggrieved candidates regarding fines, working conditions, infrastructural facilities, residence, commutation, etc. The petitioners believe that this direction has not been implemented and no disclosure has been made by the Government to date., All aspiring medical students are entitled to appear for multiple entrance examinations as part of their right to life under Article 21 and their right to practice a profession under Article 19(1)(g). Some petitioners appeared for the AIPMT examination conducted on 03‑05‑2015; due to internal irregularities, the results were annulled and the exam reconducted on 27‑07‑2015, causing them to miss the early round of counselling. The petitioners respectfully request the Honourable Supreme Court of India to consider their positions sympathetically and grant equitable relief, as the delays in counselling were beyond their control., For interim relief, the petitioners need to pursue higher education in medical sciences by appearing for postgraduate medical courses. To do so, they require their names entered in the register of doctors with the Karnataka Medical Council and must appear for NEET scheduled on 18‑05‑2021. They also need their original documents submitted to the seventh respondent college, the migration certificate, and the no‑objection certificate from the Directorate of Medical Education. Without these documents, they cannot appear for NEET or participate in counselling and interviews for postgraduate courses., Notwithstanding that the Government of Karnataka has obtained the bonds illegally, there is no right of lien over any of the petitioners' records. Universities or colleges are merely trustees, and the statute does not confer any power to withhold such documents. This is per se illegal, amounts to holding the petitioners at ransom, and contravenes law. The University Grants Commission Notification on Refund of Fees and Non‑Retention of Original Certificates dated October 2018 expressly prohibits retention of documents, stating that Higher Education Institutions shall not insist upon submission of original certificates, shall verify originals in the presence of the student and return them immediately, and shall keep only self‑attested copies for records.
id_895	3	In case of any suspicion over the authenticity or genuineness of a certificate, reference may be made to the university or the Board which issued the certificate to the student and the admission may be subjected to authentication, but the original certificate shall not be retained by the Higher Education Institution under any circumstance. Thus, the documents cannot be retained by the 7th Respondent College., If the respondents wish to enforce the purported bond, which the petitioners contend is per se illegal, they may resort to an alternative efficacious remedy rather than adopting this high‑handed attitude of exercising an unwarranted and illegal lien over these documents. The actions of the 7th Respondent College, acting upon the illegal directions of the 3rd Respondent Directorate of Medical Education to not release the documents, cause irreparable hardship, prejudice and mental agony to the petitioners., The petitioner most humbly prays that the Hon'ble High Court of Karnataka be pleased to grant the following writs: Pass a writ of mandamus quashing the impugned notification bearing No. DME/PS/157/2020-21 dated 15.02.2021 issued by the 3rd Respondent Directorate of Medical Education, Government of Karnataka, as illegal and void in the interest of justice and equity. Pass a writ of mandamus quashing the amended Rule 11 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006 as ultra vires, illegal and void in the interest of justice and equity. Pass a writ of mandamus quashing Rule 12 of the Karnataka Compulsory Service by Candidates Completed Medical Courses Act Rules, 2015 as ultra vires and void in the interest of justice and equity. Declare consequentially that all bonds executed by the petitioners pursuant to Rule 11 are annulled as void in the interest of justice and equity. Declare the Karnataka Compulsory Service by Candidates Completed Medical Courses Act 2012 (Compulsory Act) as non est law. And any other relief or reliefs, costs, that this Hon'ble High Court may deem fit in the interest of justice and equity., Wherefore, the petitioners humbly pray that pending disposal of the above writ petition, this Hon'ble High Court be pleased to direct the 7th Respondent College and the 3rd Respondent Directorate of Medical Education to release all original documents, migration certificate and No Objection Certificate to the respective petitioners forthwith in the interest of justice and equity. Bangalore.
id_896	0	Applicant: Tarun Jain. Opposite Party: State of Uttar Pradesh and Another. Counsel for Applicant: Kamlesh Kumar Tiwari, Navin Chandra Srivastava. Counsel for Opposite Party: G.A. This application under Section 482 of the Code of Criminal Procedure, 1973 seeks to quash the proceedings of Case No. 1111 of 2020, State v. Tarun Jain (arising out of Case Crime No. 325 of 2020), under Sections 182, 188 and 271 of the Indian Penal Code, 1860, pending before the Additional Chief Judicial Magistrate-II, Gautam Buddh Nagar., The application was initially heard on 21 September 2020, and an interim stay of further proceedings before the Magistrate was granted pending admission, for reasons indicated in the order of that date. The matter came up again on 19 January 2021, when, by a detailed order, it was admitted to hearing and notice was issued not only to the State but also to the second opposite party, requiring both opposite parties to file a counter affidavit. The interim order dated 21 September 2020 was directed to remain in operation until further orders. A counter affidavit was filed on behalf of the State on 1 February 2021. The complainant‑opposite party No. 2, who is a Sub‑Inspector of Police, has not been served, and the Office has not reported either way., The matter was heard on 24 March 2021, and judgment was reserved. Heard for the applicant: Mr. Navin Chandra Srivastava, learned counsel. Heard for the State: Mr. Shashi Shekhar Tiwari, learned Additional Government Advocate., The case against the applicant is that the second opposite party lodged a First Information Report with the Police Station – Sector 49, Noida, District Gautam Buddh Nagar, stating that the informant, a Sub‑Inspector on duty on 25 March 2020, noticed a tweet by the applicant alleging that maid servants and courier boys were entering the society where the applicant resides without sanitising themselves and that the maintenance staff had not provided sanitizers. The FIR further states that orders under Section 144 of the Code of Criminal Procedure had been promulgated in the district in view of the COVID‑19 pandemic, and that the applicant’s tweet spread a rumor violating the prohibitory order. On this information, an FIR was registered, giving rise to Case Crime No. 325 of 2020, under Sections 182, 188 and 271 of the Indian Penal Code. The police, after investigation, submitted a charge‑sheet dated 2 June 2020, alleging offences punishable under those sections based on the statements of the complainant, witnesses, the accused and an inspection of the place of occurrence. The Magistrate took cognisance of the offence by an order dated 7 July 2020 and issued summons to the applicant to stand trial., The applicant contends that although a notice under Section 41A of the Code of Criminal Procedure was issued to him to attend the police station on 25 March 2020, when he went there the police neither recorded his statement nor questioned him; instead they released him on furnishing a personal bond. He argues that the police have not undertaken any genuine investigation and have filed a charge‑sheet merely as a show of investigation, recording cyclo‑styled statements of policemen alone. The investigation is characterised as unfair and biased. He further submits that no prima facie case is made out against him, as his tweet merely cautioned residents of Plot No. 7, Golf City, Sector 75, Noida, where he resides in Flat No. 604, Tower A3, about the lack of sanitizers, and was not intended to create alarm or violate any prohibitory order., The State, in its counter affidavit, states that the information posted by the applicant on his Twitter account was found to be incorrect and that, therefore, the applicant violated the prohibitory orders promulgated in the district. It also indicates that there is no other case registered against the applicant. The High Court has perused the statements recorded by the police under Section 161 of the Code of Criminal Procedure, which conclude that the applicant’s tweet was factually incorrect, as sanitizers were available at the society and entrants were required to sanitise. Various police witnesses have asserted that the tweet, containing incorrect information, amounts to spreading a rumor that violates the prohibitory order under Section 144 of the Code of Criminal Procedure., The High Court finds it difficult to understand how a vigilant tweet by a resident about a breach of COVID‑19 protocol could constitute a violation of prohibitory orders. Assuming the applicant’s information was wrong, it is unclear how the tweet amounts to a rumor that violates Section 144. Suppression of any breach of the COVID‑19 protocol could have devastating consequences, rather than an over‑zealous misreporting of a fact. The Court is of the view that either the police never visited the society to verify the truth of the tweet, or, if they did, the maintenance staff rectified the situation to avoid penal consequences., A resident of a society cannot be imagined to harbour a culpable intention in tweeting about a matter affecting health. Even if the applicant’s observation about maid and courier boys entering without proper sanitisation was erroneous, it constitutes at most a human error concerning health safety. An inaccurate report of a breach of COVID‑19 protocol cannot give rise to an offence of furnishing false information to the police; at worst it is an act of erring on the side of caution. The charge‑sheet, therefore, is void on its face due to a one‑sided, perfunctory and biased investigation., The Court would have considered the investigation serious if the police had recorded statements of some residents, the maintenance staff, or security guards. The case diary annexed by the applicant shows only statements of the first informant and other policemen, presenting a parroted version of facts that do not inspire confidence. An unfair, biased, one‑sided investigation is no investigation in the eyes of law and vitiates the resultant charge‑sheet, as held by the Supreme Court in Babubhai v. State of Gujarat & Others. In that case, the Supreme Court observed that a charge‑sheet is the outcome of an investigation and that a vitiated investigation cannot give rise to a valid charge‑sheet, and that fair investigation is part of the constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India., The provisions of Sections 182 and 188 of the Indian Penal Code read as follows: 182. False information, with intent to cause public servant to use his lawful power to the injury of another person. Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant (a) to do or omit anything which such public servant ought not to do or omit if the true state of facts were known, or (b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Illustrations: (a) A informs a Magistrate that Z, a police officer subordinate to such Magistrate, has been guilty of neglect of duty or misconduct, knowing such information to be false, and knowing it likely to cause the Magistrate to dismiss Z. (b) A falsely informs a public servant that Z has contraband salt in a secret place, knowing such information to be false, and knowing it likely that the consequence will be a search of Z’s premises, attended with annoyance to Z. (c) A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a particular village, without naming any assistant, but knowing it likely that the police will make enquiries and institute searches in the village, to the annoyance of the villages. 188. Disobedience to order duly promulgated by public servant. Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both., The High Court notes that Section 182 requires the person to give false information to a public servant. The applicant never gave any information to the police or any public servant; he only posted a tweet. Hence, the ingredients of Section 182 are prima facie not disclosed., Regarding Section 188, the Court finds no material showing how the applicant’s tweet violated the prohibitory order promulgated under Section 144 of the Code of Criminal Procedure, except for a vague allegation that he spread a rumor. The tweet was intended for the safety of society residents and was not meant to raise alarm in the town or district. It cannot be construed as obstruction, annoyance, injury or risk to any person lawfully employed, and therefore does not fall within the mischief of Section 188., The last offence charged is under Section 271 of the Indian Penal Code, which deals with disobedience to quarantine rules concerning vessels. The provision relates to vessels and the regulation of intercourse of vessels in a state of quarantine, and does not pertain to a tweet warning residents about a breach of COVID‑19 protocol. Consequently, the tweet cannot be regarded as an offence under Section 271., The High Court finds that the prosecution fails to disclose a cognizable case against the applicant and constitutes a reckless abuse of the process of the Court. The Commissioner of Police, Gautam Buddh Nagar, must ensure that frivolous prosecutions are not launched against respectable citizens. It is the duty of the High Court under Section 482 of the Code of Criminal Procedure to prevent abuse of process of the Court., The Court may refer to the principles laid down by the Supreme Court in Sanjay Kumar Rai v. State of Uttar Pradesh & Another, where it was held that orders framing charges or refusing discharge are neither interlocutory nor final and are not affected by the bar of Section 397 (2) of the Code of Criminal Procedure. The High Court possesses inherent jurisdiction to prevent abuse of process or to secure ends of justice, but must exercise this discretion circumspectly and judiciously., In the considered opinion of the High Court, the impugned proceedings cannot be permitted to continue and deserve to be quashed., The application succeeds and is allowed. The proceedings of Case No. 1111 of 2020, State v. Tarun Jain (arising out of Case Crime No. 325 of 2020), under Sections 182, 188 and 271 of the Indian Penal Code, Police Station – Sector 49, Noida, District Gautam Buddh Nagar, pending before the Additional Chief Judicial Magistrate-II, Gautam Buddh Nagar are hereby quashed., An entry shall be made in the General Diary of Police Station Sector 49, Noida, District Gautam Buddh Nagar to the effect that the proceedings of Case Crime No. 325 of 2020, under Sections 182, 188 and 271 of the Indian Penal Code stand quashed under the orders of the High Court. The aforesaid part of the order shall be caused to be carried out in the records of the police station concerned by the Additional Chief Judicial Magistrate-II, Gautam Buddh Nagar within a week of receipt of a copy of this order., A copy of this judgment shall be communicated to the learned Additional Chief Judicial Magistrate-II, Gautam Buddh Nagar, through the learned Sessions Judge, Gautam Buddh Nagar and to the Station House Officer, Sector 49, Noida, District Gautam Buddh Nagar, through the Commissioner of Police, Gautam Buddh Nagar, by the Registrar (Compliance).
id_897	0	Every trial that fails due to external interference is a tragedy for the victims of the crime. More importantly, every frustrated trial defies and mocks society based on the rule of law. Every subverted trial leaves a scar on the criminal justice system. Repeated scars make the system unrecognisable and it then loses the trust and confidence of the people – R.K. Anand v. Delhi High Court., The writ petition has been filed by the complainant‑informant seeking direction from the High Court of Karnataka to entrust the investigation in Crime No. 484/2022 to any senior lady police officer. The criminal petition is filed by accused No. 1 and No. 2 in Crime No. 484/2022, later assigned Criminal Case No. 123/2023, pending before the Additional Civil Judge and Judicial Magistrate First Class, Chitradurga, for quashing the entire legal proceedings under Section 482 of the Code of Criminal Procedure. Since both the cases arise out of the same criminal proceedings, the matters were clubbed, heard and are being disposed of by this common order. For convenience, the accused persons No. 1 and No. 2, who are the petitioners in the criminal petition, shall be referred to as petitioners., A brief narration of facts is necessary to understand the background in which the crime was registered on the basis of information provided by the writ petitioner Sri Basavaprabhu Swamiji, who calls himself the in‑charge Pontiff of Sri Murugharajendra Bruhanmata, Chitradurga. On 24 July 2022, two young girls, inmates of the hostel run by the mutt, arrived at Bengaluru City Bus Stand. That night, an autorickshaw driver took them to Cottonpet Police Station. Upon verification, the Cottonpet police learned that the two girls were inmates of the hostel at Chitradurga and that the petitioners were known to be associated with the institution. The petitioners immediately left Chitradurga, arrived in Bengaluru, and went to Cottonpet Police Station at about 1.00 p.m. With the consent of the police, the two girls went along with the petitioners back to Chitradurga. Nearly a month later, on 26 August 2022, the two girls were taken to Odanadi Seva Samsthe, an NGO at Mysuru. The office bearers of the NGO took the girls to Nazarbad Police Station at Mysuru and lodged a complaint that the Pontiff of Sri Murugharajendra Bruhanmata, Dr. Shivamurthy Muruga Sarana, had sexually abused the two girls. Since the alleged offence was said to have taken place at Chitradurga, the Nazarbad Police, Mysuru, transferred the case to Chitradurga Rural Police Station. On 28 August 2022, the statements of the two girls were recorded by Chitradurga Police, the FIR was registered and action was taken against the Pontiff of the mutt., On 13 October 2022, Smt., who was working as a cook in the hostel of the mutt, took her two daughters to Odanadi Seva Samsthe at Mysuru. Similar accusations were made against the Pontiff of the mutt and a case was registered as Crime No. 182/2022 at Nazarbad Police Station, Mysuru. The case was transferred to Chitradurga Rural Police and on 14 October 2022, Chitradurga Rural Police registered Crime No. 445/2022 against the Pontiff of the mutt. The said case is now registered as Special Criminal No. 27/2023 on the file of the Additional District and Sessions Court, Chitradurga., The present cases do not arise out of the two criminal cases registered against the Pontiff of the mutt. On the other hand, a written complaint was given by Sri Basavaprabhu Swamiji, who claims to be the in‑charge Pontiff, on 9 November 2022 at about 6.00 p.m., stating that some persons had conspired to tarnish the image of the mutt and the Pontiff by coaxing the two young girls to make unfounded statements. A teacher of the school, namely Basavarajendra, once again conspired with the cook, who in turn convinced her two daughters to make statements against the Pontiff, resulting in another criminal case. The complainant later obtained a voice recording circulating on social media, in which the elder daughter of Smt. was heard speaking to the teacher, clearly establishing the conspiracy against the Pontiff and an admission that they were forced to give such statements. On the basis of this information, an FIR was registered as Crime No. 484/2022 by the Chitradurga Rural Police on 26 August 2022 at about 6.00 p.m., and the FIR was forwarded to the Additional Civil Judge and Judicial Magistrate First Class, Chitradurga at about 9.00 p.m. About 7.30 p.m., the teacher whose voice appears in the recording was arrested, and on the basis of the teacher’s statement, petitioner No. 1, Sri S.K. Basavarajan, was arrested at about 12.30 a.m. the same night. He was produced before the Police Inspector, interrogated till 2.30 a.m., and thereafter produced along with a remand application before the Additional Civil Judge and Judicial Magistrate First Class, Chitradurga, and was remanded to police custody till 14 November 2022. It is alleged that, on the basis of information given by Sri S.K. Basavarajan, the police seized two mobile phones from his house. Sri S.K. Basavarajan (petitioner No. 1) was thereafter remanded to judicial custody on 14 November 2022. Sri Basavarajan’s wife, Smt. Sowbhagya (petitioner No. 2), was arrested on 16 December 2022. Both petitioners were subsequently granted bail., Learned Senior Counsel appearing for the petitioners submits that all efforts are being made at the instance of the Pontiff of the mutt to derail the criminal judicial proceedings initiated in accordance with law, only to ensure that the original complainants and witnesses are terrified and forced to retract and turn hostile. The written complaint is a one‑page information submitted along with a pen‑drive said to contain the voice recording of the elder daughter of Smt. and Sri Basavarajendra, the teacher. The information states that, on the basis of the voice recording, there is a conspiracy hatched by certain persons inimically disposed towards the mutt and the Pontiff, to tarnish their image, and that a criminal case has been registered as Crime No. 445/2022 against Dr. Shivamurthy Muruga Sarana. It is further stated that Sri Basavarajendra, the teacher, assured the young girl, who has not attained the age of marriage, that he would marry her if no one else comes forward. On the basis of the said information, an FIR was registered under Sections 120B, 384, 420, and 366(A) of the Indian Penal Code. A charge‑sheet was filed, dropping the charge under Section 420 but adding Section 201 of the Indian Penal Code on the ground that the petitioners destroyed one of the mobile phones used by Smt. Sowbhagya, thereby causing disappearance of evidence. The written complaint does not indicate the names of the petitioners; therefore, there is no basis for invoking Section 384 (extortion) against them, nor for invoking Section 366A (inducing a minor girl to illicit intercourse)., The learned Senior Counsel further submits that merely because petitioner No. 2 stated she had misplaced or lost one of her mobile phones, Section 201 has been invoked. The allegation that the destruction of the mobile phone amounts to causing disappearance of evidence cannot be accepted, since the written complaint only refers to the recorded conversation between Sri Basavarajendra and the elder daughter of Smt. It does not state how the mobile phone of Smt. Sowbhagya or the conversation on it could be treated as evidence for invoking the provision., The plain reading of the written complaint shows that the informant is voicing concerns on behalf of an accused person, Dr. Shivamurthy Muruga Sarana, the Pontiff of the mutt, against whom a criminal case has been registered as Crime No. 445/2022. The informant alleges that the case has been falsely registered on the basis of false information given by Smt. Accordingly, at best the information may attract the provisions contained in Section 177 (giving false information to police) and/or Section 182 (giving false information with intent to cause police to use lawful power to cause injury). However, for the invocation of these provisions, Section 195 of the Code of Criminal Procedure creates a bar: no court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code unless the complaint in writing is given by the public servant concerned or by a subordinate public servant. If cognizance is to be taken on the basis of such information, the complaint must be in writing by the investigating officer or a higher officer., The learned Senior Counsel draws the Court’s attention to the judgment of the Supreme Court of India in Daulat Ram v. State of Punjab, AIR 1962 SC 1206, where it was held that, having regard to the express provisions of Section 195 of the Code of Criminal Procedure, there is an absolute bar against the court taking cognizance of the case except in the manner provided by that section., It is also well‑established that the police are not permitted to register two separate crimes for the same offence. If, during investigation, the investigating officer receives information contrary to that given by the first informant, such information should be recorded as part of the investigation, but a separate case cannot be registered. The Court is drawn to Anju Chaudhary v. State of Uttar Pradesh and Another (2013) 6 SCC 384, where it was held that the police officer is duty‑bound to register an FIR but not a second FIR in respect of the same offence/incident forming part of the same transaction as contained in the first FIR. The safeguard under the Code of Criminal Procedure is akin to the principle of double jeopardy, fair investigation and prevention of abuse of power., The learned Senior Counsel submits that there is no scope under the criminal justice system for the investigating officer to register a separate case and verify the truth of the statement made by Smt. Such verification can only be done by the court seized of the matter. If the court concludes that Smt. gave false information that forced a criminal trial against the Pontiff, then, under clause (b) of sub‑section (1) of Section 195, on a complaint in writing of that court, an FIR can be registered or the court may take action for offences punishable under Sections 193 to 196, 199, 200, 205 to 211 and 228 of the Indian Penal Code. The same information that may constitute false information under Sections 172 to 188 would become offences under Sections 193 to 196, etc., when given on oath before a court., The decision in T.T. Antony v. State of Kerala and Others (2001) 6 SCC 181 is relied upon. It is held that, under Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code of Criminal Procedure, only the earliest or first information regarding the commission of a cognizable offence satisfies the requirements of Section 154. There can be no second FIR and consequently no fresh investigation on receipt of subsequent information concerning the same cognizable offence or the same occurrence. Upon receipt of information about a cognizable offence and entry of the FIR in the Station House Diary, the officer in charge must investigate not only the offence reported but also other connected offences and file one or more reports as provided in Section 173. Hence, there is no scope for registering a separate FIR mentioning Crime No. 445/2022 and seeking action against the informant/complainant Smt., The names of the petitioners are not mentioned in the complaint; therefore, it was impermissible for the investigating officer to cause a separate investigation into the allegations made in the complaint filed by Sri Basavaprabhu Swamiji and implicate the petitioners in the FIR and the final report., The relevant provisions of the Indian Penal Code are not quoted in the FIR and the final report, apparently to avoid the rigours of Section 195 of the Code of Criminal Procedure. A plain reading of the written complaint would at most attract allegations of giving false information (Section 177) and/or giving false information with intent to cause police to use lawful power to cause injury (Section 182). Since there is a bar under Section 195 for registering an FIR at the behest of a private individual in matters arising under Sections 177 and 182, the investigating officer deliberately avoided mentioning those sections while invoking Sections 120B, 384, 366(A) and later adding Section 201, to ensure a cognizable offence for registration under Section 154. The decision in Basir‑Ul‑Huq and Others v. State of West Bengal, AIR 1953 SC 293, is cited, holding that the provisions of a section cannot be evaded by devices or camouflage; the test is whether the facts disclose primarily an offence for which a complaint of the court or public servant is required., The registration of the FIR in Crime No. 484/2022 is void ab initio and all further proceedings, including the submission of the final report, are illegal, contrary to the provisions of the Code of Criminal Procedure; therefore, the FIR and the entire legal proceedings should be quashed., The chronology of events leading to the written complaint shows that the undisputed events prior to the registration of FIRs in Crime No. 387/2022 and Crime No. 445/2022 (allegations of sexual assault on the Pontiff) disclose a conspiracy hatched by the petitioners along with Sri Basavarajendra (teacher) and Smt. to falsely implicate the Pontiff in serious crimes. The intention was to ensure that petitioner Sri S.K. Basavarajan would gain control of the mutt’s administration or to extort money from the Pontiff. The recorded conversation between Sri Basavarajendra and the elder daughter of Smt. confirms the conspiracy; the girl admitted that she gave a statement to the police only at the instance of her mother and was not interested in pursuing the matter as it would ruin her life and career. Statements of the hostel inmates were read to fortify the argument that there was no truth in the allegation against the Pontiff. It was submitted that the petitioners destroyed relevant evidence in the form of Smt. Sowbhagya’s mobile phone, which would have shown prior conversation among the petitioners, the teacher and Smt.’s elder daughter. Medical examination reports of four girl students and other inmates indicated that the girls were not sexually abused. About twenty‑six girl students were recorded during the investigation, none of whom reiterated the allegations. Information was also available to the investigating officer that the petitioners had instituted various litigations against the mutt and the Pontiff., Sections 120B and 201 of the Indian Penal Code have been registered against the petitioners, having found during investigation that they hatched a conspiracy to implicate the Pontiff and destroyed evidence. Section 120B (criminal conspiracy) can be a standalone offence; Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra (2008) 10 SCC 394 held that conspiracy is a substantive offence punishable even if the agreed offence does not occur. The destruction of the mobile phone constitutes an offence under Section 201 (causing disappearance of evidence); Saranya v. Bharathi and another (2021) 8 SCC 583 held that destruction of important evidence during investigation is punishable., The High Court, exercising powers under Section 482 of the Code of Criminal Procedure, cannot conduct a mini‑trial or appraise evidence. This principle is affirmed in State of Uttar Pradesh and Another v. Akhil Sharda and Others, 2022 SCC OnLine SC 820., In Kaptan Singh v. State of Uttar Pradesh and Others (2021) 9 SCC 35, it was held that while exercising powers under Section 482, the High Court must consider two stages: before the final report, where only the FIR/complaint is examined for cognizable offence, and after the final report, where material collected during investigation is considered, but the court cannot act as an investigating agency or appellate court., Since Sections 177 and 182 of the Indian Penal Code were not invoked by the police, the question of applying Section 195 does not arise. The bar created by Section 195 is on the court taking cognizance, not on the police., Sub‑section (4) of Section 155 of the Code of Criminal Procedure provides that where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed cognizable notwithstanding that the other offences are non‑cognizable. The explanation to the definition of ‘complaint’ in Section 2(d) clarifies that a report made by a police officer disclosing a non‑cognizable offence after investigation is deemed a complaint, and the officer is the complainant. A recent Apex Court decision in M/s Iveco Magirus Brandschutztechnik GmbH v. Nirmal Kishore Bhartiya and Another, Criminal Appeal No. 1959/2012, decided on 5 October 2023, held that a magistrate may apply his judicial mind to other provisions of law to ascertain prima facie whether an offence defined in Section 2(n) of the Code of Criminal Procedure is made out, without being precluded from considering material brought before him under Sections 200 and 202., The learned Senior Counsel submits that the action initiated by the police on the basis of the written complaint given by Sri Basavaprabhu Swamiji is in accordance with established procedures and therefore the proceedings should be permitted to continue in the interest of justice., In Bandekar Brothers Private Limited v. Prasad Vassudev Keni and Others (2020) 20 SCC 1, Justice Rohinton Fali Nariman described the court’s role as balancing two poles: protecting a person from frivolous criminal complaints and allowing a victim to ventilate grievance and have the offence tried. That case also involved Section 195 of the Code of Criminal Procedure, distinguishing between clause (b) and clause (a) of sub‑section (1).
id_897	1	In all the decisions cited at the Bar and what the Supreme Court of India found in many such cases such as Basir-Ul-Huq and Others v. State of West Bengal, AIR 1953 Supreme Court 293; Bhima Razu Prasad v. State, represented by Deputy Superintendent of Police, AIR 2021 Supreme Court 2090; Santokh Singh v. Izhar Hussain and Another, AIR 1973 Supreme Court 2190; M.L. Sethi v. R.P. Kapoor and Another; R.K. Anand v. Registrar, Delhi High Court; and Ram Dhan v. State of Uttar Pradesh and Another (2012) 5 Supreme Court 536 is that the cases arose on the basis of allegation of giving false evidence before a court of law, fabricating false evidence, or making use of a forged document as genuine., Very few cases such as Abdul Rehman and Others v. K.M. Anees-Ul-Huq (2011) 10 Supreme Court 696 deal with a case falling under clause (a) of sub‑section (1) of Section 195 of the Criminal Procedure Code. In Abdul Rehman, although the case arose out of a Magistrate entertaining a complaint under Section 211 of the Indian Penal Code that the accusations made by the appellant in the report lodged with the Central Administrative Welfare Committee were totally false and fabricated, the Honorable Supreme Court held that since subsequently bail proceedings were conducted by the Sessions Judge in connection with the case, those proceedings were judicial proceedings and the offence punishable under Section 211 IPC alleged to have been committed by the appellants related to the said proceedings, the bar contained in Section 195 Criminal Procedure Code was clearly attracted. The case is held to be one falling under Section 195(1)(b)(i), since bail proceedings conducted by the Sessions Judge were judicial proceedings., It should be noticed that the two‑judge bench in Abdul Rehman followed a larger bench decision in the case of Kamlapati Trivedi v. State of West Bengal (1980) 2 Supreme Court 91., The factual situation there was that, having secured an order of discharge, Sri Satya Narayan Pathak filed a complaint before the Sub‑Divisional Judicial Magistrate accusing Kamlapati Trivedi of the commission of offences under Sections 211 and 182 of the Indian Penal Code by reason of Trivedi having lodged with the police a false complaint against Mr Pathak. Trivedi appeared before the Sub‑Divisional Judicial Magistrate in response to a summons only in respect of the offence under Section 211 of the Indian Penal Code and was allowed a fortnight to furnish security while the case itself was adjourned., Trivedi presented a petition to the High Court of Calcutta praying that proceedings pending against him before the Sub‑Divisional Judicial Magistrate be quashed in as much as the latter was debarred from taking cognizance of the offence under Section 211 of the Indian Penal Code in the absence of a complaint in writing of the Sub‑Divisional Judicial Magistrate himself, in view of the provisions of clause (b) of sub‑section (1) of Section 195 of the Criminal Procedure Code. It was argued before the High Court that the part of the proceedings which started with the registration of the case by the police, at the instance of Trivedi and culminated in the order of discharge of Mr Pathak and five co‑accused, constituted proceedings before a court, that the offence under Section 211 IPC attributed to Trivedi was committed in or, in any case, in relation to such part and therefore the case against Trivedi fell within the ambit of clause (b) of sub‑section (1) of Section 195. The High Court did not accept the contention, stating that the proceedings before the court become a criminal proceeding only when a court takes cognizance and not before., Before the Supreme Court of India it was argued that the Sub‑Divisional Judicial Magistrate had passed an order releasing Mr Pathak on bail and then another order of discharge was passed by the Sub‑Divisional Judicial Magistrate acting judicially and therefore, as a Court, it cannot be held that those orders were passed in proceedings in relation to which the offence under Section 211 IPC was alleged to have been committed and consequently, the Sub‑Divisional Judicial Magistrate had no jurisdiction to take cognizance of that offence., The Supreme Court of India took up the following two points for determination: (a) Whether the Sub‑Divisional Judicial Magistrate acted as a Court when he passed the orders on the bail application and the application for discharge; and (b) If the answer to (a) is affirmative, whether the offence under Section 211 of the Indian Penal Code attributed to Trivedi could be regarded as having been committed in relation to the proceedings culminating in either or both of the said orders., For easy reference, Section 195 of the Criminal Procedure Code is extracted: 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code, namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub‑clause (i) or sub‑clause (ii), except on the complaint in writing of that Court, or by such officer of the court as that court may authorise in writing in this behalf, or of some other court to which that court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of subsection (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the court of first instance has been concluded. (3) In clause (b) of sub‑section (1), the term \Court\ means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of subsection (1), a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decrees or sentences of such former court, or in the case of a civil court from whose decrees no appeal ordinarily lies, to the principal court having ordinary original civil jurisdiction within whose local jurisdiction such civil court is situated: Provided that (a) where appeals lie to more than one court, the appellate court of inferior jurisdiction shall be the court to which such court shall be deemed to be subordinate; (b) where appeals lie to a civil and also to a revenue court, such court shall be deemed to be subordinate to the civil or revenue court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed., The Supreme Court of India proceeded to examine the provisions contained in Sections 6, 496 and 497 of the Criminal Procedure Code, having regard to the fact that Magistrates are specifically labelled as Courts by the statutory provisions of Section 6 and therefore have to be regarded as such. It was held that Sections 496 and 497, which embrace bail matters, specifically describe a magistrate while dealing therewith as a Court and these sections operate fully at all stages of the case, including when the investigation has just started. There is nothing in the context of the word \Court\ in these two sections and Section 195 which would provide an indication that it has been used in two different senses; consequently the legislature must be deemed to have used it in one and the same sense wherever it occurs in the Code., The findings of the Supreme Court of India on the points for consideration are as follows: Sections 169 and 170 do not talk of the submission of any report by the police to the magistrate, although they state what the police has to do short of such submission when it finds at the conclusion of the investigation (1) that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a magistrate (Section 169) or (2) that there is sufficient evidence or reasonable ground as aforesaid (Section 170). In either case the final report of the police is to be submitted to the magistrate under sub‑section (1) of Section 173. Sub‑section (3) of that section further provides that in the case of a report by the police that the accused has been released on his bond (the situation envisaged by Section 169), the magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. The magistrate may, as held by this Court in Abhinandan Jha v. Dinesh Mishra [(1967) 3 SCR 668 : AIR 1968 Supreme Court 117 : 1968 Criminal Law Journal (1)], (i) agree with the report of the police and file the proceedings; or (ii) not agree with the police report and (a) order further investigation, or (b) hold that the evidence is sufficient to justify the forwarding of the accused to the magistrate and take cognizance of the offence complained of., The appropriate course has to be decided after consideration of the report and the application of the mind of the magistrate to its contents. The only order which can be regarded as having been passed by the magistrate in his capacity as the supervisory authority in relation to the investigation carried out by the police is the one covered by course (i) above. The orders passed by the magistrate in each of the other two courses, that is, (1) and (2)(b), follow a conclusion of the investigation and are judicial orders determining the rights of the parties after the application of his mind. Therefore, those orders must be characterised as judicial acts performed in the capacity of a Court., The reasons which have weighed with me in reaching the conclusion in the last paragraph are equally applicable to the consideration of whether an order of bail passed by a magistrate calls for the performance of his judicial functions. Such an order also decides the rights of the State and the accused and is made by the magistrate after the application of his mind and therefore in the discharge of his judicial duties, which factor constitutes it an act of a Court., As the order releasing Trivedi on bail and the one ultimately discharging him of the offence complained of amount to proceedings before a Court, all that remains to be seen is whether the offence under Section 211 of the Indian Penal Code, which is the subject‑matter of the complaint against Trivedi, can be said to have been committed in relation to those proceedings. Both the orders resulted directly from the information lodged by Trivedi with the police against Pathak and, in this situation, there is no getting out of the conclusion that the said offence must be regarded as one committed in relation to those proceedings. This requirement of clause (b) is therefore fully satisfied., Applying the said principles, since the accused person in Crime No. 445/2022 applied for bail and orders were passed, it can be said that the present case falls under Section 195(1)(b)(i) of the Criminal Procedure Code, and therefore the rigours of the said provisions are attracted and the learned magistrate could not have taken cognizance of the FIR which was actuated by the written complaint given by Sri Basavaprabhu Swamiji., Section 211 of the Indian Penal Code reads as follows: \False charge of offence made with intent to injure. Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding is instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.\, There can be no doubt that, having regard to the principles laid down in Kamlapati (supra) and the admitted facts that the concerned Court has taken cognizance of the offence in Crime No. 182/2022, renumbered as Crime No. 445/2022 and having assigned Special Criminal No. 27/2023 on the file of the II Additional District and Sessions Court, Chitradurga, and the matter is set down for trial, the subsequent proceedings initiated at the behest of Sri Basavaprabhu Swamiji fall squarely within sub‑clause (i) of clause (b) of sub‑section (1) of Section 195 of the Criminal Procedure Code. Therefore, the learned magistrate was clearly barred from taking cognizance of the offence at the instance of a third party, namely Sri Basavaprabhu Swamiji., This is a unique case where a person not involved in Crime No. 445/2022 lodged a written complaint alleging that the said crime was registered against the Pontiff of the Mutt on the basis of false information given by Smt. The complaint was tendered along with a pen‑drive said to consist of a voice recording of a conversation between Sri Basavarajendra (Teacher) and the elder daughter of Smt. It was stated in the complaint that the voice recording was being circulated on social media and that a conspiracy was hatched by Sri Basavarajendra and Smt. to falsely implicate the Pontiff of the Mutt in a sexual abuse case. Thus, a third party, not being the accused in the previous case, is seeking to produce information in the form of evidence to demolish the allegation made by the complainant Smt. in Crime No. 445/2022, while alleging that a false case has been filed against the Pontiff of the Mutt., In the considered opinion of this Court, if the learned magistrate had read the written complaint, wherein it was mentioned that Smt. had given false information in Crime No. 445/2022 and the complainant Sri Basavaprabhu Swamiji was seeking action against Smt. for giving false information and implicating the Pontiff of the Mutt, the learned magistrate would have declined to take cognizance of the complaint., Our criminal justice system will not permit a parallel proceeding to test and verify the genuineness of the allegations made in a previous complaint. If such proceedings are permitted, the first informant Smt. would be forced to stand trial or justify her allegations twice. In many reported decisions, the allegations were regarding fabricating evidence or presenting evidence as genuine knowing the same to be false, etc. While dealing with such facts, the Honorable Supreme Court has held that the bar created under Section 195 of the Criminal Procedure Code is an exception to the general rule provided under Section 190 of the Criminal Procedure Code, empowering any Magistrate of First Class to take cognizance of any offence upon receiving a complaint, police report, information, or upon his own knowledge. It was held that the provision curbing the general jurisdiction of the Court must normally receive strict interpretation unless the statute or the context requires otherwise (Abdul Waheed Khan v. Bhawani & Ors., AIR 1966 Supreme Court 35)., The reason for the enactment of Section 195 of the Criminal Procedure Code has been stated felicitously in Patel Laljibhai Somabhai v. State of Gujarat (1971) 2 Supreme Court 376: The underlying purpose of enacting Sections 195(1)(b) and (c) and Section 476 is to control the temptation on the part of private parties, considering themselves aggrieved by the offences mentioned in those sections, to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the Court's control because of their direct impact on the judicial process, i.e., the administration of public justice, which is the direct and immediate object or victim of those offences., Having regard to the stated objective and purpose underlying the enactment of Section 195 of the Criminal Procedure Code, there cannot be any doubt that it would be impermissible in law to allow the proceedings to continue in the present case. This Court cannot permit the complainant Smt. and the petitioners herein to stand trial and justify the allegations made by Smt. in two proceedings. If permitted, such proceedings would amount to a travesty of justice. The registration of the FIR at the hands of the respondent‑police is void ab initio. The learned magistrate could not have taken cognizance of the complaint lodged by Sri Basavaprabhu Swamiji, since the complaint mentioned Crime No. 445/2022 and consequently the bar provided in Section 195(1)(b)(i) is clearly attracted., As rightly submitted by the learned Senior Counsel Sri Hashmath Pasha, the information provided by Sri Basavaprabhu Swamiji could be placed before the court trying the case on the basis of the complaint filed by Smt. to counter her allegations. If the court concludes that Smt. gave false information or that the petitioners conspired with Smt. or any other person to falsely implicate the Pontiff of the Mutt, then it is for the learned judge to decide whether action has to be initiated against such persons under Sections 195 and 340 of the Criminal Procedure Code. It is also permissible for the court to conduct summary proceedings for trial for giving false evidence in terms of Section 344., Before parting with this case, this Court deems it necessary to notice the dubious conduct of the respondent‑police in misdescribing or putting a wrong label on the offences, only to facilitate registration of a cognizable offence, although a plain reading of the written complaint given by Sri Basavaprabhu Swamiji does not make out any offence in Sections 384 or 366A of the Indian Penal Code. More importantly, the learned magistrate should have been alive to the situation. In Arnab Manoranjan Goswami v. State of Maharashtra and Others (2021) 2 Supreme Court 427, while reiterating the role of courts in protecting personal liberty and ensuring that investigations are not used as a tool of harassment, it was held that courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally, it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that criminal law does not become a weapon for the selective harassment of citizens., If our learned magistrates do not read the complaints and the first information reports and go about passing orders mechanically, the first line of defence would naturally be breached. It was submitted on behalf of the petitioners that when an application for remand was filed by the respondent‑police, it was brought to the notice of the learned magistrate that the complaint given by Sri Basavaprabhu Swamiji was a counter‑blast to the crime registered against the Pontiff of the Mutt. Nevertheless, the learned magistrate proceeded to take cognizance mechanically, unmindful of the grave consequences that befall the persons targeted in the complaint., At this juncture, it would be relevant to notice the words of caution given by the Supreme Court of India in the case of R.K. Anand v. Registrar, Delhi High Court. The observations highlighted the indifferent and passive attitude that can derail trials and the need for High Courts to assume a more proactive role in supervising lower courts, ensuring that investigations are not deliberately botched and that trials are not hijacked by powerful accused., Every trial that fails due to external interference is a tragedy for the victims of the crime. More importantly, every frustrated trial defies and mocks the society based on the rule of law. Every subverted trial leaves a scar on the criminal justice system. Repeated scars make the system unrecognisable and it then loses the trust and confidence of the people. It is high time for the High Courts to assume a more proactive role in such matters. A step in time by the High Court can save a criminal case from going astray. An enquiry from the High Court Registry to the concerned quarters would send the message that the High Court is watching; it means business and it will not tolerate any nonsense., Consequently, the Criminal Petition No. 12350/2022 is allowed. The FIR registered in Crime No. 484/2022 by the respondent‑Chitradurga Rural Police and all further proceedings in Civil Court No. 123/2023 on the file of the Additional Civil Judge and Judicial Magistrate First Class, Chitradurga, are hereby quashed and set aside., Since the entire proceedings are quashed, the prayer made in Writ Petition No. 1280/2023 becomes infructuous. Therefore, Writ Petition No. 1280/2023 is dismissed as having become infructuous. A copy of this order shall be forwarded to the Karnataka Judicial Academy, Bengaluru, to ensure that the learned magistrates and judges understand the efficacy of reading criminal complaints and first information reports before taking cognizance of a case.
id_898	0	Criminal Procedure Code No. 438 of 2022 Applicant: Bhanu Pratap Singh Opposite Party: State of Uttar Pradesh and two others Counsel for Applicant: Rajkumar Verma Counsel for Opposite Party: G. A. Honourable Mrs. Jyotsna Sharma, Judge, Heard Rajkumar Verma, learned counsel for the applicant, and O. P. Mishra, learned Additional Government Advocate for the State, and perused the papers on record., The applicant Bhanu Pratap Singh has moved this application seeking anticipatory bail in Crime Case No. 224 of 2022, under sections 153A, 506, 420, 467, 468, 471 of the Indian Penal Code and sections 3 and 5(1) of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, relating to the police station Kotwali, District Fatehpur., According to the prosecution, a First Information Report was lodged by the informant Himanshu Dixit alleging that about ninety persons of Hindu religion had congregated at the Evangelical Church of India, Hariharganj, Fatehpur for the purpose of conversion to Christianity by undue influence, coercion, fraud and promises of easy money. Government officers who arrived at the place interrogated Pastor Vijay Massiah, who disclosed that the conversion process had been ongoing for the last thirty‑four days and would be completed within forty days, that patients admitted to the Mission Hospital were also being targeted, and that employees were actively involved. The officers identified thirty‑five persons named in the First Information Report and twenty unknown persons as being involved in the conversion of ninety Hindus to Christianity. The First Information Report was registered under sections 153A, 506, 420, 467, 468 of the Indian Penal Code and sections 3 and 5(1) of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, and the matter was investigated., The applicant contends that he was not involved in the alleged act, was not present at the spot, and that the informant is an activist of a political organization connected with the ruling party who has falsely implicated him for ulterior motives. He has no criminal history and no credible evidence of his involvement has been collected. He is willing to cooperate with the investigation and abide by any conditions imposed on him. He also points out that some persons named in the First Information Report, namely Madhuri Panna and Vijay Kumar Samson, have been granted anticipatory bail, and therefore, on the basis of parity, his application deserves to be allowed., The State opposes the application for anticipatory bail. It is submitted that the applicant and thirty‑five named persons, with the assistance of others, were engaged in mass conversion of people from one religion to another by offering monetary and other benefits. Eye‑witness accounts were given by Sonu Singh, Pramod Kumar Dixit, Rajesh Kumar Dwivedi, Niteesh Kumar Shukla, Virendra Kumar and Sanjay Singh, who corroborated the prosecution case and stated that Pastor Vijay Massiah admitted to them that the conversion process had been ongoing for thirty‑four days and that employees of the Mission Hospital were also involved. Twenty‑six persons were arrested on the spot, as recorded in General Diary Number 36 of 15 April 2022 at 13:43 hours, including the applicant Bhanu Pratap Singh. In a statement under section 161 of the Criminal Procedure Code, Pramod Kumar Dixit said that during the treatment of a family member he was introduced to a woman named Lily See who advised him to convert to Christianity, promising free medical assistance for life, jobs and money for his children, and a new Aadhaar card with a new name after conversion. He was taken to the church and introduced to the accused, including the wife of the applicant, and his Aadhaar card was taken. He observed that about sixty to seventy persons of the community were lured to the church on similar assurances. Similar statements under section 161 of the Criminal Procedure Code have been given by witnesses Sanjay Singh, Rajesh Kumar Trivedi, Shri Keshan, Satya Pal and others. The State argues that the incident created tension and a law and order situation, with members of the community gathering, raising slogans, and the police facing difficulty in maintaining control. One witness, Shri Keshan, testified that he was lured by promises of free medical assistance, education, employment for his children and monetary benefits, that his Aadhaar card was taken and his name changed from Shri Keshan to Keshan Joseph, and that he was threatened that his life would be at risk if he disclosed the incident. The State further contends that there was a larger conspiracy hatched by the applicant and his associates, acting in an organized manner for mass conversion, exploiting the poor socio‑economic condition of the victims with promises of easy money and jobs. The State maintains that there is no substance to the claim that the applicant has been falsely implicated or that the First Information Report was motivated., The State submits that granting bail at this stage may hinder effective investigation. It is emphasized that anticipatory bail is an extraordinary remedy to be exercised only in suitable cases. The power under section 438 of the Criminal Procedure Code cannot be used routinely as a substitute for regular bail. This discretionary power requires facts showing that the court’s interference is necessary to further the cause of justice and to prevent misuse of the process of law., Having considered all aspects of the matter, the High Court finds no sufficient ground to grant anticipatory bail and therefore rejects the application., However, any observations made herein shall not be taken as a comment on the merits of the case, and the court below shall be at liberty to form its own opinion at any stage of the case.
id_90	0	Applicant: In Re Opposite Party: Shri Chandan Kumar, Investigating Officer. Counsel for Applicant: Sudhir Mehrotra. Counsel for Opposite Party: R.V. Pandey, Abhishek Mishra, Ashutosh Kumar Pandey, R.V. Pandey, Honourable Suneet Kumar, Honourable Syed Waiz Mian. Learned counsel for the parties were heard., Pursuant to the order dated 04.08.2022, the contemnor is present in the Supreme Court of India. By the order dated 04.08.2022, the contemnor was held guilty of committing contempt for breach of the mandate pronounced by the Supreme Court of India in Arnesh Kumar Vs. State of Bihar reported in 2014 (6) SCJ 219. In the affidavit, the contemnor pleads for a sympathetic view on the quantum of punishment on the ground that he is a young officer and his wife is expecting. He further states that he is the sole breadwinner of his family, which includes four brothers and one sister, and that punishment would adversely affect his career. The contemnor therefore tenders an unconditional apology., We have considered the averments made in the affidavit and the submissions of the learned counsel for the contemnor. The Supreme Court of India would not lose sight of the fact that the contemnor, being a member of a disciplined force, in the exercise of his powers of arrest, has willfully and deliberately bypassed the mandate of the Supreme Court of India in Arnesh Kumar (supra), which is binding on all authorities, including magistrates, in view of Article 141 of the Constitution of India. ‘Apology’ means a regretful acknowledgement or an excuse for failure. It is an explanation offered to a person affected by one's action that no offence was intended. Further, it has been held that an apology should be unquestionable in sincerity and tempered with genuine remorse and repentance, and not a calculated strategy to avoid punishment. The apology tendered by the contemnor is a matter of last resort; therefore, it cannot be accepted., It has been noted by the Supreme Court of India in the order dated 04.08.2022 that the contemnor, though he served a notice under Section 41-A of the Criminal Procedure Code on the accused, willfully and deliberately recorded in the General Diary that the accused declined to accept the terms and conditions of the notice. Moreover, the contemnor attempted to give communal colour by stating that the accused belongs to a Muslim community and that there was an apprehension of communal riots. The order records that no such apprehension existed, as the FIR was not lodged at the police station until intervention by higher authorities. There is no entry in the General Diary indicating any apprehension of communal flare‑up in the event of the accused not being arrested. The misleading entry in the General Diary was made willfully and deliberately with the sole purpose of bypassing the mandate in Arnesh Kumar (supra) in order to arrest the accused., In the circumstances, the contemnor has circumvented a binding mandate. A sympathetic view would not serve public interest or the administration of justice. To secure public respect and confidence in the judicial process, the Supreme Court of India is constrained to award punishment to the contemnor, Investigating Officer Shri Chandan Kumar, In‑charge of Police Station Kanth, District Shahjahanpur, for committing contempt. Shri Chandan Kumar is sentenced to undergo simple imprisonment for fourteen days and a fine of Rs 1000/‑ is imposed. On default, the contemnor shall undergo one week further simple imprisonment. The sentence shall be kept in abeyance for sixty days from today as the learned counsel for the contemnor pleads that the contemnor would like to prefer an appeal under Section 19 of the Contempt of Court Act, 1971. In view thereof, the contempt petition and any pending application stand disposed of.
id_901	0	Reportable Writ Petition (Civil) No. 162 of 2023 Vishal Tiwari Petitioner versus Union of India and Others Respondents; Writ Petition (Criminal) No. 39 of 2023; Writ Petition (Civil) No. 201 of 2023; and Writ Petition (Criminal) No. 57 of 2023. Dr Dhananjaya Y. Chandrachud, Chief Justice of India., B. The scope of judicial review over SEBI's regulatory domain. C. There is no apparent regulatory failure attributable to SEBI. D. The plea to transfer the investigation from SEBI to another agency or to ... The power to transfer an investigation is exercised in extraordinary circumstances. SEBI has prima facie conducted a comprehensive investigation. Reliance on the Organized Crime and Corruption Reporting Project report and the letter by Directorate of Revenue Intelligence is misconceived. E. Allegations of conflict of interest against members of the Expert Committee. F. Other recommendations by the Expert Committee. Recommendations of the Expert Committee to strengthen regulatory framework and secure compliance to protect investors., A batch of writ petitions filed before the Supreme Court of India under Article 32 of the Constitution in February 2023 raised concerns over the precipitous decline in investor wealth and volatility in the share market due to a fall in the share prices of the Adani Group of Companies. The situation was purportedly caused by a report published on 24 January 2023 by activist short seller Hindenburg Research about the financial transactions of the Adani group. The report inter alia alleged that the Adani group manipulated its share prices and failed to disclose transactions with related parties and other relevant information in violation of the regulations framed by SEBI and provisions of securities legislation. Significantly, the report expressly states that Hindenburg Research took a short position in the Adani group through US‑traded bonds and non‑Indian traded derivative instruments., A. Factual background and submissions. A brief overview of the petitions follows: a. The petitioner in Writ Petition (Civil) No. 162 of 2023 raises concerns about the drastic fall in the securities market, the impact on investors, the purported lack of redressal available and the disbursement of loans to the Adani group allegedly without due procedure. The petitioner inter alia seeks the constitution of a committee monitored by a retired judge of the Supreme Court of India to investigate the Hindenburg Report. b. The petitioner in Writ Petition (Civil) No. 201 of 2023 submits that the Adani group is in violation of Rule 19A of the Securities Contracts (Regulation) Rules, 1957 by surreptitiously controlling more than 75 per cent of the shares of publicly listed Adani group companies, thereby manipulating the price of its shares in the market. The petitioner inter alia seeks a court‑monitored investigation by a Special Investigation Team or by the Central Bureau of Investigation into the allegations of fraud and the purported role played by top officials of public sector banks and lending institutions. c. The petitioner in Writ Petition (Criminal) No. 57 of 2023 seeks directions to the competent investigative agencies to (i) investigate the transactions of the Adani group under the supervision of a sitting judge of the Supreme Court of India; and (ii) investigate the role of the Life Insurance Corporation of India and the State Bank of India in such transactions. d. The petitioner in Writ Petition (Criminal) No. 39 of 2023 seeks the registration of an FIR against a certain Mr Nathan Anderson (the founder of Hindenburg Research) and his associates for short‑selling and directions to recover the profits yielded by short‑selling to compensate the investors., When the batch came up for hearing on 10 February 2023, the Supreme Court of India noted that there was a need to review the existing regulatory mechanisms in the financial sector to ensure that they are strengthened with a view to protect Indian investors from market volatility. The Supreme Court of India sought inputs from the Solicitor General on the proposed constitution of an Expert Committee for the purpose. The Supreme Court of India observed: We have suggested to the Solicitor General that he may seek instructions on whether the Government of India would facilitate the constitution of an expert committee for an overall assessment of the situation, and if so, to place its suggestions on the constitution and remit of the committee on the next date. Meanwhile the Solicitor General shall place on the record a brief note on factual and legal aspects so as to further the deliberations during the course of the next hearing., The batch of cases came up for hearing on 17 February 2023. The Supreme Court of India heard detailed submissions on behalf of the parties and reserved further orders. In its order dated 2 March 2023, the Supreme Court of India took note of the loss of investor wealth in the aftermath of the report by Hindenburg Research and recognized the dire need to protect Indian investors from unanticipated volatility in the market. The Supreme Court of India observed that SEBI is already seized of the investigation into the Adani group and inter alia directed: a. SEBI to continue with its investigation and examine the following non‑exhaustive issues raised in the petitions: (i) Whether there has been a violation of Rule 19A of the Securities Contracts (Regulation) Rules, 1957; (ii) Whether there has been a failure to disclose transactions with related parties and other relevant information which concerns related parties to SEBI, in accordance with law; and (iii) Whether there was any manipulation of stock prices in contravention of existing laws. b. SEBI to conclude its investigation within two months and file a status report before the Supreme Court of India. c. The constitution of an Expert Committee chaired by Justice Abhay Manohar Sapre, former judge of the Supreme Court of India. Besides its Chairperson, the Committee was to comprise the following members: Mr O P Bhatt; Justice J P Devadhar; Mr K V Kamath; Mr Nandan Nilekani; Mr Soma Sekhar Sundaresan. The remit of the Expert Committee was: a. To provide an overall assessment of the situation including the relevant causal factors which have led to the volatility in the securities market in the recent past; b. To suggest measures to strengthen investor awareness; c. To investigate whether there has been regulatory failure in dealing with the alleged contravention of laws pertaining to the securities market in relation to the Adani Group or other companies; and d. To suggest measures to (i) strengthen the statutory and/or regulatory framework; and (ii) secure compliance with the existing framework for the protection of investors. The Expert Committee was directed to furnish its report to the Supreme Court of India within two months., The Supreme Court of India clarified that the Expert Committee and SEBI would work in collaboration with each other. The appointment of the Committee would, in other words, not affect the investigation by SEBI which would proceed simultaneously. The constitution of the Expert Committee was not to divest SEBI of its powers or responsibilities in continuing with its investigation. The Supreme Court of India observed: SEBI shall apprise the expert committee (constituted in paragraph 14 of this order) of the action that it has taken in furtherance of the directions of this Court as well as the steps that it has taken in furtherance of its ongoing investigation. The constitution of the expert committee does not divest SEBI of its powers or responsibilities in continuing with its investigation into the recent volatility in the securities market., On 6 May 2023, in compliance with the above interim order, the Expert Committee submitted its report to the Supreme Court of India. In its order dated 17 May 2023, the Supreme Court of India directed that copies of the report shall be made available to the parties and their counsel to enable them to assist the Court in the course of further deliberations. The Supreme Court of India also granted SEBI an extension of time till 14 August 2023 to submit its status report about its investigation., SEBI filed an interlocutory application on 14 August 2023 intimating the Supreme Court of India about the status of the twenty‑four investigations which were undertaken by it. Further, SEBI submitted a status report dated 25 August 2023 providing details about the twenty‑four investigations. Both SEBI and the counsel for the petitioners have also filed their responses to the Expert Committee's report., In the above background, this matter came up for hearing before the Supreme Court of India on 24 November 2023. The Court heard Mr Prashant Bhushan, learned counsel and other counsel appearing on behalf of the petitioners and Mr Tushar Mehta, learned Solicitor General appearing on behalf of SEBI., Mr Prashant Bhushan, appearing on behalf of the petitioner, broadly pressed his case for two directions: firstly, a direction to constitute a Special Investigation Team to oversee the SEBI investigation into the Adani group and that all such investigations be court‑monitored; and secondly, a direction to SEBI to revoke certain amendments made to the SEBI (Foreign Portfolio Investment) Regulations, 2014 and the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015. Mr Bhushan made the following submissions: a. The Hindenburg Report and certain newspaper reports allege that some Foreign Portfolio Investments in Adani group stocks in the Indian stock market are owned by shell companies based outside India, which have close connections with the Adani group. Such investments in Adani stocks allow the Adani group to maintain financial health and artificially boost the value of stocks in the market, in violation of Indian law. b. The investments by Foreign Portfolio Investors violate Rule 19A of the Securities Contracts (Regulations) Rules, 1957 which requires a minimum 25 per cent public shareholding in all publicly listed companies. c. The investigative findings of the Organized Crime and Corruption Reporting Project, published by two newspapers, indicate price manipulation by the Adani group through two Mauritius‑based funds. However, SEBI has not acted on such reports. d. The Directorate of Revenue Intelligence addressed a letter dated 31 January 2014 to the then SEBI Chairperson alerting them about possible stock market manipulation being committed by the Adani group by over‑valuation of the import of power equipment. However, SEBI did not take adequate action based on this letter. e. SEBI must be directed to revoke amendments to the Foreign Portfolio Investment Regulations which have done away with restrictions on opaque structures. As a result of these amendments, SEBI, the Enforcement Directorate and the Central Board of Direct Taxes have not been able to give any clear findings with regard to price manipulation and insider trading. SEBI has tied its own hands. f. SEBI must be directed to revoke the amendment made to its Listing Obligations and Disclosure Requirements Regulations which have altered the definition of “related party”. g. SEBI's inability to establish a prima facie case of regulatory non‑compliance and legal violations by the Adani group promoters despite starting an investigation in November 2020 appears to be prima facie self‑inflicted. The unprecedented rise in the price of the Adani scrips occurred between January 2021 and December 2022, over a period when the Adani group was already under SEBI investigation. h. A few members of the Expert Committee may have a conflict of interest and there is a likelihood of bias, which was not brought to the notice of the Court by the concerned members. i. SEBI has willfully delayed the submission of its status report on the investigation into the Adani group within the time granted by the Supreme Court of India., On the other hand, the learned Solicitor General, appearing on behalf of SEBI, made the following submissions: a. Twenty‑two out of twenty‑four investigations being conducted by SEBI are complete. In these investigations, enforcement actions or quasi‑judicial proceedings would be initiated, wherever applicable. b. The delay by SEBI in filing the report is only ten days which is unintentional and not willful, given that twenty‑four investigations were to be carried out. c. SEBI has been taking various steps on the areas identified by the Expert Committee and will also take into consideration the suggestions of the Expert Committee to improve its practices and procedures. d. The events pertaining to the present batch of petitions relate to only one set of entities in the market without any significant impact at the systemic level. While the shares of the Adani group saw a significant decline on account of the selling pressure, the wider Indian market has shown full resilience. e. The petitioners' reliance on the letter by the Directorate of Revenue Intelligence is misconceived. After having received the Directorate's letter, SEBI sought information from the Directorate on the subject and received a response. Further, while SEBI's examination was in process, the Additional Director, Directorate of Revenue Intelligence (Adjudication) found the allegations of over‑valuation to be incorrect. The Customs, Excise and Service Tax Appellate Tribunal and this Court also dismissed appeals against the order. f. The Organized Crime and Corruption Reporting Project report relied on by the petitioner lacks documentary support and certain important facts with regard to the source of the report have been concealed. g. The Foreign Portfolio Investment Regulations initially had allowed opaque structures under certain conditions, inter alia, that they undertake to disclose the details of beneficial owners when sought. The subsequent amendment required upfront mandatory disclosure of beneficial owners by Foreign Portfolio Investors. This made the disclosure clause redundant which led to its omission in 2019. The amendments have tightened the regulatory framework by making disclosure requirements mandatory and removing the requirement of disclosure only when sought., B. The scope of judicial review over SEBI's regulatory domain. The petitioners in the present case are inter alia seeking directions with regard to (i) investigations being carried out by SEBI; and (ii) regulations/policies adopted by SEBI. In other words, directions in relation to both the regulatory and delegated legislative powers of SEBI are being sought by the petitioners. At the outset, therefore, the Supreme Court of India's power to enter the domain of a specialized regulator, such as SEBI, must be delineated., SEBI was established as India's principal capital markets regulator with the aim to protect the interest of investors in securities and promote the development and regulation of the securities market in India. SEBI is empowered to regulate the securities market in India by the SEBI Act 1992, the Securities Contracts (Regulation) Act and the Depositories Act 1996. SEBI's powers to regulate the securities market are wide and include delegated legislative, administrative, and adjudicatory powers to enforce SEBI's regulations. SEBI exercises its delegated legislative power by inter alia framing regulations and appropriately amending them to keep up with the dynamic nature of the securities market. SEBI has issued a number of regulations on various areas of security regulation which form the backbone of the framework governing the securities market in India., Section 11 of the SEBI Act lays down the functions of SEBI and expressly states that it shall be the duty of the Board to protect the interests of investors in securities and to promote the development of, and to regulate the securities market, by such measures as it thinks fit. Further, Section 30 of the SEBI Act empowers SEBI to make regulations consistent with the Act. Significantly, while framing these regulations, SEBI consults its advisory committees consisting of domain experts, including market experts, leading market players, legal experts, technology experts, retired judges of the Supreme Court of India or the High Courts, academicians, representatives of industry associations and investor associations. During the consultative process, SEBI also invites and duly considers comments from the public on their proposed regulations. SEBI follows similar consultative processes while reviewing and amending its regulations., The Supreme Court of India in IFB Agro Industries Ltd v. SICGIL India Ltd examined the role of independent regulatory bodies such as SEBI in public administration and upheld the primacy of SEBI as the forum to adjudicate violations of its regulations. Further, the Court detailed the delegated legislative, administrative, and adjudicatory powers of SEBI arising from the SEBI Act. The Court held: Public administration is dynamic and ever evolving. It is now established that governance of certain sectors through independent regulatory bodies will be far more effective than being under the direct control and supervision of Ministries or Departments of the Government. Regulatory control by an independent body composed of domain experts enables a consistent, transparent, independent, proportionate, and accountable administration and development of the sector. All this is achieved by way of legislative enactments which establish independent regulatory bodies with specified powers and functions. They exercise powers and functions, which have a combination of legislative, executive, and judicial features. Another feature of these regulators is that they are impressed with a statutory duty to safeguard the interest of the consumers and the real stakeholders of the sector. The statutory provisions contained in Chapters IV, VI‑A, read with Section 30, delineate the legislative, administrative, and adjudicatory functions of the Board. In its normative or legislative functions, SEBI can formulate regulations encompassing various aspects having a bearing on the securities market. It should be noted that the SEBI Act, Rules, Regulations and Circulars made or issued under the legislation, are constantly evolving with a concerted aim to enforce order in the securities market and promote its healthy growth while protecting investor wealth. Insofar as its administrative/executive power goes, it has the power to regulate the business of stock exchanges and securities market. The Board provides for the registration and regulation of stock brokers, share transfer agents, depositories, venture capital funds, collective investment schemes, etc. It also has the power to prohibit various transactions which interfere with the health of the securities market. In the exercise of its adjudicatory powers under Section 15‑I, SEBI has the power to appoint officers for holding an inquiry, give a reasonable opportunity to the person concerned and determine if there is any transgression of the Rules prescribed. The Board has the power to impose penalties for violations and also restitute the parties. The adjudicatory power also includes the power to settle administrative and civil proceedings under Section 15‑JB of the SEBI Act. The regulatory jurisdiction of the Board also includes ex‑ante powers to predict a possible violation and take preventive measures. The exercise of ex‑ante jurisdiction necessitates the calling of information as provided in Sections 11(2)(i), 11(2)(ia) and 11(2)(ib) of the SEBI Act. Where the Board has a reasonable ground to believe that a transaction in the securities market is going to take place in a manner detrimental to the interests of the stakeholders or that any intermediary has violated the provisions of the Act, it may investigate into the matter under Section 11(C) of the SEBI Act. In other words, being the real‑time security market regulator, the Board is entitled to keep a watch, predict and even act before a violation occurs., In a consistent line of precedent, the Supreme Court of India has held that when technical questions arise particularly in the financial or economic realm; experts with domain knowledge in the field have expressed their views; and such views are duly considered by the expert regulator in designing policies and implementing them in the exercise of its power to frame subordinate legislation, the court ought not to substitute its own view by supplanting the role of the expert. Courts do not act as appellate authorities over policies framed by the statutory regulator and may interfere only when it is found that the actions are arbitrary or violative of constitutional or statutory mandates. The court cannot examine the correctness, suitability, or appropriateness of the policy, particularly when it is framed by a specialized regulatory agency in collaboration with experts. The court cannot interfere merely because in its opinion a better alternative is available., In Prakash Gupta v. SEBI, the Supreme Court of India, speaking through Justice D. Y. Chandrachud, observed that the Court must be mindful of the public interest that guides the functioning of SEBI and should refrain from substituting its own wisdom over the actions of SEBI. The Court held: Therefore, the SEBI Act and the rules, regulations and circulars made or issued under the legislation, are constantly evolving with a concerted aim to enforce order in the securities market and promote its healthy growth while protecting investor wealth. In a consistent line of precedent, this Court has been mindful of the public interest that guides the functioning of SEBI and has refrained from substituting its own wisdom over the actions of SEBI. Its wide regulatory and adjudicatory powers, coupled with its expertise and information gathering mechanisms, imprints its decisions with a degree of credibility. The powers of the Special Adjudication Tribunal and the Court would necessarily have to align with SEBI's larger existential purpose., From the above exposition of law, the following principles emerge: a. Courts do not and cannot act as appellate authorities examining the correctness, suitability, and appropriateness of a policy, nor are courts advisors to expert regulatory agencies on matters of policy which they are entitled to formulate. b. The scope of judicial review, when examining a policy framed by a specialized regulator, is to scrutinize whether it (i) violates the fundamental rights of the citizens; (ii) is contrary to the provisions of the Constitution; (iii) is opposed to a statutory provision; or (iv) is manifestly arbitrary. The legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. c. When technical questions arise particularly in the domain of economic or financial matters and experts in the field have expressed their views and such views are duly considered by the statutory regulator, the resultant policies or subordinate legislative framework ought not to be interfered with. d. SEBI's wide powers, coupled with its expertise and robust information‑gathering mechanism, lend a high level of credibility to its decisions as a regulatory, adjudicatory and prosecuting agency. e. The Supreme Court of India must be mindful of the public interest that guides the functioning of SEBI and refrain from substituting its own wisdom in place of the actions of SEBI. We have made a conscious effort to keep the above principles in mind while adjudicating the petitions, which contain several prayers that require the Court to enter SEBI's domain., C. There is no apparent regulatory failure attributable to SEBI. The petitioners have submitted, based on the Hindenburg Report and other newspaper reports, that the Foreign Portfolio Investments investing in Adani group stocks in the Indian stock market are shell companies outside India owned by the brother of the Chairperson of the Adani group. These shell companies have, it is urged, an unclear ownership pattern and seem to only trade in Adani stocks which allegedly allow the Adani group to maintain an appearance of financial health and solvency. The petitioners allege that this would artificially boost the value of Adani stocks in the market and expose the Indian market and investors to huge losses., Additionally, the petitioners contend that after accounting for these shell companies which allegedly belong to a member of the Adani family, the promoter shareholding would surpass 75 per cent. This, it is alleged, would be in contravention of Rule 19A of the Securities Contracts (Regulation) Rules, 1957 which mandates a minimum of 25 per cent public shareholding. The alleged contravention would, according to the petitioners, entail the delisting of the Adani group as a consequence. According to the petitioners, the disclosure of the ownership of the Foreign Portfolio Investments investing in the Adani stocks lies at the heart of the alleged violation of Rule 19A. In its order dated 10 March 2023, the Supreme Court of India noted that SEBI was already seized of investigations into the Adani group since 2020. The Court further directed SEBI to investigate the alleged violation of Rule 19A of the Securities Contracts (Regulation) Rules, 1957., The Foreign Portfolio Investment Regulations, 2014 had mandated the disclosure of the ultimate beneficial ownership by natural persons of the Foreign Portfolio Investor under the provisions concerning “opaque structures” in ownership of Foreign Portfolio Investors. The declaration of the “ultimate beneficial owner” under SEBI Regulations was required to conform to the disclosure of “beneficial owner” under the Prevention of Money Laundering Act, 2002 and thereby under Rule 9 of the Prevention of Money Laundering Maintenance of Records Rules, 2004. These requirements were amended by SEBI in 2018 and 2019 by removing the requirement of disclosing ownership of the Foreign Portfolio Investors by a natural person. The petitioners submit that this amounts to a regulatory failure on the part of SEBI., The petitioners further argue that the Listing Obligations and Disclosure Requirements Regulations, 2015 defined a “related party transaction” in Regulation 2(1)(zb) as a transaction involving a transfer of resources between a listed entity and a “related party”, regardless of whether a price is charged. The term “related party”, in Regulation 2(1)(zc) had the same meaning as ascribed to related party under Section 2(76) of the Companies Act, 2013. Based on a report of the Committee on Corporate Governance dated 5 October 2017 the definition was amended on 1 April 2019 to provide that any person or entity belonging to the “promoter” or “promoter group” of a listed entity that held 20 per cent or more of the shareholding in the listed entity shall be deemed to be a related party., On 21 November 2021, substantial amendments were made to the definition of related party with deferred prospective effect from 1 April 2022 and 1 April 2023. In these amendments, the definition of “related party” was amended to include persons holding 20 per cent or more in the listed company whether directly or indirectly or on a beneficial interest basis under Section 89 of the Companies Act, 2013 with effect from 1 April 2022. However, with effect from 1 April 2023, the deemed inclusion would bring within the scope of the term “related party” persons who hold 10 per cent or more of the listed company. The Expert Committee report has opined that these amendments were necessitated to address the mischief or contrivance of effecting a transaction involving a transfer of resources between a listed company and a third party which is not a related party, only to technically escape the rigours of compliance applicable to a related party transaction, to thereafter transfer the resources from the unrelated party to a related party. The Committee further opined that deferred prospective application of regulations is not bad practice in commercial law, as it allows the market to adjust to the proposed changes and avoid uncertainty., The petitioners argue that these amendments to the Listing Obligations and Disclosure Requirements Regulations have facilitated the mischief or contravention with regard to related party transactions by the Adani group. This, as the petitioners argue, is because the series of amendments have made it difficult to establish contravention of law by first opening a loophole and then plugging the loophole with deferred effect. The petitioners have also argued that while initially the director, their relative, or a relative of a key managerial person was considered a related party, the amendments have changed this position to hold that a person or entity be deemed related party only if the shareholding of that person or entity is at least 20 per cent. These amendments have allegedly made it difficult to investigate the acquisition against the Adani group for flouting minimum public shareholding regulations by engaging in related party transactions through Foreign Portfolio Investments. It has also made it difficult to assign the specific contravention of a regulation to the Adani group., In essence, the petitioners have argued that the amendments to the two regulations amount to regulatory failure on the part of SEBI and have accordingly prayed that SEBI be directed to revoke the amendments to the Foreign Portfolio Investment Regulations and Listing Obligations and Disclosure Requirements Regulations or make suitable changes. It may be pointed out that these arguments and prayers were not present in the initial petitions. They have only propped after the report of the Expert Committee dated 6 May 2023. The Report stated that in view of the amendments to the regulations, it cannot return a finding of regulatory failure by SEBI. Thereafter, the petitioners have made arguments to belie the finding of the Expert Committee Report., SEBI in its affidavit dated 10 July 2023 submitted that the entire ruse around regulatory failure caused by amendments to the Foreign Portfolio Investment Regulations and Listing Obligations and Disclosure Requirements Regulations was initiated because of SEBI's submissions before the Expert Committee in the context of challenges faced in obtaining information regarding holders of economic interest. SEBI had used the term opaque to describe the Foreign Portfolio Investors which it submits was mistaken by the Expert Committee to imply the rules on opaque structures under the Foreign Portfolio Investment Regulations, 2014., SEBI claims no disability in its investigation into the Adani group on account of the amendments to the Foreign Portfolio Investment Regulations. On merits, SEBI has argued that the Foreign Portfolio Investment Regulations, 2014 in fact did not prohibit opaque structures. They were permitted upon meeting certain conditions including the condition that they provide details of their beneficial ownership as and when called upon to do so. The 2018 amendment required mandatory disclosures by all Foreign Portfolio Investors with a few exceptions. It marked a shift towards tightening the regulations with mandatory disclosure of beneficial owner details. This new mandate rendered the previous provision on disclosure upon demand otiose. Mandatory upfront disclosure meant that the undertaking to disclose beneficial ownership by Foreign Portfolio Investors was a vestige. This led to provisions on opaque structures being omitted in 2019 upon the recommendation of the Working Group headed by a former Deputy Governor of the Reserve Bank of India., In essence, SEBI argues that the difficulty it faces in obtaining information regarding holders of economic interest in Foreign Portfolio Investors does not change regardless of the amendments in the Foreign Portfolio Investment Regulations. SEBI contends that a challenge arises due to differing regulations in jurisdictions where entities with economic interest in a Foreign Portfolio Investor operate.
id_901	1	The ambiguity lies in beneficial ownership identification, which is based on control or ownership in some jurisdictions, potentially overlooking entities with economic interest but no apparent control. Consequently, investment managers or trustees, utilizing arrangements like voting shares, may be recognized as beneficial owners, leading to a potential failure in identifying the actual investing entities with economic interest, especially when holdings are distributed across multiple Foreign Portfolio Investors., We find merit in the Securities and Exchange Board of India's arguments and do not find any reason to interfere with the regulations made by the Securities and Exchange Board of India in the exercise of its delegated legislative powers. The Securities and Exchange Board of India has traced the evolution of its regulatory framework, as noticed above, and explained the reasons for the changes in its regulations. The procedure followed in arriving at the current shape of the regulations is not tainted with any illegality. Neither has it been argued that the regulations are unreasonable, capricious, arbitrary, or violative of the Constitution. The petitioners have not challenged the vires of the Regulations but have contended that there is regulatory failure based on the Securities and Exchange Board of India's alleged inability to investigate which is attributed to changes in the regulations. Such a ground is unknown to the Supreme Court of India's jurisprudence. In effect, the Supreme Court of India is being asked to replace the powers given to the Securities and Exchange Board of India by Parliament as a delegate of the legislature with the petitioners' better judgment. The critique of the regulations made as an afterthought and based on a value judgment of economic policy is impermissible. Additionally, we find no merit in the argument that the Foreign Portfolio Investor Regulations, 2014 have been diluted to facilitate mischief. The amendments far from diluting have tightened the regulatory framework by making the disclosure requirements mandatory and removing the requirement of it being disclosed only when sought. The disclosure requirement therefore is now at par with the Prevention of Money Laundering Act., We do not see any valid grounds raised for the Supreme Court of India to interfere by directing the Securities and Exchange Board of India to revoke its amendments to regulations which were made in the exercise of its legislative power. A regulation may be subject to judicial review based on it being ultra vires the parent legislation or the Constitution. None of these grounds have been pressed before the Supreme Court of India. Therefore, we find that the prayer seeking directions to the Securities and Exchange Board of India to revoke its amendments to the Foreign Portfolio Investor Regulations and Large and Other Regulations must fail., The Securities and Exchange Board of India has completed twenty-two out of the twenty-four investigations into the Adani group. It submits that the remaining two are pending due to inputs being awaited from foreign regulators. We also record the assurance given by the Solicitor General on behalf of the Securities and Exchange Board of India that the investigations would be concluded expeditiously. The Securities and Exchange Board of India cannot keep the investigation open-ended and indeterminate in time. Hence, the Securities and Exchange Board of India shall complete the pending investigations preferably within three months., The petitioners seek the transfer of the investigation from the Securities and Exchange Board of India to the Central Bureau of Investigation or a Special Investigation Team. The question that falls for decision is whether a case has been established by the petitioners for the Supreme Court of India to issue such a direction., The Supreme Court of India does have the power under Article 32 and Article 142 of the Constitution to transfer an investigation from the authorized agency to the Central Bureau of Investigation or constitute a Special Investigation Team. However, such powers must be exercised sparingly and in extraordinary circumstances. Unless the authority statutorily entrusted with the power to investigate portrays a glaring, willful and deliberate inaction in carrying out the investigation, the court will ordinarily not supplant the authority which has been vested with the power to investigate. Such powers must not be exercised by the court in the absence of cogent justification indicative of a likely failure of justice in the absence of the exercise of the power to transfer. The petitioner must place on record strong evidence indicating that the investigating agency has portrayed inadequacy in the investigation or prima facie appears to be biased., Recently, in Himanshu Kumar v. State of Chhattisgarh, this Supreme Court, speaking through Justice J. B. Pardiwala, relying on a judgment of a three‑judge Bench in K. V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai, reiterated the principle that the power to transfer an investigation to investigating agencies such as the Central Bureau of Investigation must be invoked only in rare and exceptional cases. Further, no person can insist that the offence be investigated by a specific agency since the plea can only be that the offence be investigated properly. The Court held as follows: 49. Elaborating on this principle, this Court further observed: 17. the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases, such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased., The Court reiterated that an investigation may be transferred to the Central Bureau of Investigation only in rare and exceptional cases. One factor that courts may consider is that such transfer is imperative to retain public confidence in the impartial working of the State agencies. This observation must be read with the observations made by the Constitution Bench in the case of Committee for Protection of Democratic Rights, West Bengal, that mere allegations against the police do not constitute a sufficient basis to transfer the investigation., It has been held by this Supreme Court in CBI v. Rajesh Gandhi, 1997 Cri LJ 63, that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice., The principle of law that emerges from the precedents of this Supreme Court is that the power to transfer an investigation must be used sparingly and only in exceptional circumstances. In assessing the plea urged by the petitioner that the investigation must be transferred to the Central Bureau of Investigation, we are guided by the parameters laid down by this Supreme Court for the exercise of that extraordinary power., Given the above position of law, the question that arises before the Supreme Court of India is whether, in the facts of the present case, the transfer of investigation from the Securities and Exchange Board of India to another agency is warranted., As noted above, out of the twenty‑four investigations carried out by the Securities and Exchange Board of India, twenty‑two are concluded. Twenty‑two final investigation reports and one interim investigation report have been approved by the competent authority under the Securities and Exchange Board of India's procedures. With respect to the interim investigation reports the Securities and Exchange Board of India has submitted that it has sought information from external agencies/entities and upon receipt of such information will determine the future course of action., Further, in its status report, the Securities and Exchange Board of India has provided the current status of each of the investigations conducted by it and the reasons for interim findings in two of the investigations. The Securities and Exchange Board of India has also provided details such as the number of emails issued, summons for personal appearance, pages of documents examined, statements recorded on oath, etc., for each investigation. An overview of twenty‑four investigations conducted by the Securities and Exchange Board of India is as follows: 1. Minimum Public Shareholding – alleged violation of Rule 19A of Securities Contracts (Regulation) Rules, 1957; 2. Alleged manipulation of stock prices in contravention of existing laws; 3. Alleged Related Party Transactions – failure to disclose transactions with related parties and other relevant information (13 investigations); 4. Other Issues: (A) Possible violation of the Foreign Portfolio Investor Regulations, 2014 and 2019; (B) Possible violation of the Substantial Acquisition of Shares and Takeovers Regulations, 2011; (C) Trading – pre‑post Hindenburg Report; (D) Possible violation of the Prohibition of Insider Trading Regulations, 2015. Total 24., The Securities and Exchange Board of India's status report and the details of the twenty‑four investigations do not indicate inaction by the Securities and Exchange Board of India. In fact, to the contrary, the course of conduct by the Securities and Exchange Board of India inspires confidence that it is conducting a comprehensive investigation., The petitioners have also raised questions about the delay by the Securities and Exchange Board of India in submitting the status report before the Supreme Court of India. By an order dated 2 March 2023, this Supreme Court directed the Securities and Exchange Board of India to conclude its investigation within two months and file a status report. This Supreme Court, by its order dated 17 May 2023, granted the Securities and Exchange Board of India an extension of time till 14 August 2023 to submit its status report about its investigation. Eventually, the Securities and Exchange Board of India filed an interlocutory application intimating this Supreme Court about the status of the twenty‑four investigations undertaken by it on 14 August 2023. The Securities and Exchange Board of India submitted a status report dated 25 August 2023 providing comprehensive details about all the investigations carried out by it. Therefore, there is a delay of only ten days in filing the report. Such a delay does not prima facie indicate deliberate inaction by the Securities and Exchange Board of India, particularly as the issue involved a complex investigation in coordination with various agencies, both domestic and foreign., Further, as noted in part C of this judgment, no apparent regulatory failure can be attributed to the Securities and Exchange Board of India based on the material before this Supreme Court of India. Therefore, there is prima facie no deliberate inaction or inadequacy in the investigation by the Securities and Exchange Board of India., To assail the adequacy of the Securities and Exchange Board of India's investigation thus far, the petitioner has sought to rely on a report published by the Organized Crime and Corruption Reporting Project and various newspapers referring to the report. The petitioners' case appears to rest solely on inferences from the report by the OCCRP, a third‑party organization involved in investigative reporting. The petitioners have made no effort to verify the authenticity of the claims., The reliance on newspaper articles or reports by third‑party organizations to question a comprehensive investigation by a specialized regulator does not inspire confidence. Such reports by independent groups or investigative pieces by newspapers may act as inputs before the Securities and Exchange Board of India or the Expert Committee. However, they cannot be relied on as conclusive proof of the inadequacy of the investigation by the Securities and Exchange Board of India. Nor, as the petitioners state, can such inputs be regarded as credible evidence. The veracity of the inputs and their sources must be demonstrated to be unimpeachable. The petitioners cannot assert that an unsubstantiated report in the newspapers should have credence over an investigation by a statutory regulator whose investigation has not been cast into doubt on the basis of cogent material or evidence., In addition to the OCCRP report, the petitioners have also relied on a letter dated 31 January 2014 sent by the Directorate of Revenue Intelligence to the then Securities and Exchange Board of India Chairperson. The letter purportedly alerted the Securities and Exchange Board of India about, inter alia, potential stock market manipulation by the Adani group through over‑valuation of the import of power equipment from a UAE‑based subsidiary. According to the petitioner, the Securities and Exchange Board of India did not disclose the receipt of the letter and did not take adequate action based on it., The Securities and Exchange Board of India has submitted that after receiving the above letter, it sought information from the Directorate of Revenue Intelligence on the issue and received the requisite inputs. While the Securities and Exchange Board of India examined the preliminary alerts by the Directorate of Revenue Intelligence, the Additional Director General (Adjudication), DRI concluded their examination and held that the allegations were not established. The order of the Additional Director General was assailed by the Commissioner of Customs before the Customs, Excise and Service Tax Tribunal. The CESTAT passed an order on 8 November 2022 dismissing the appeal and concluding that the allegation of overvaluation was not proved. The order of the CESTAT was upheld by this Supreme Court on 27 March 2023. Further, the Securities and Exchange Board of India has also submitted that its investigation based on the DRI alerts was concluded and the related findings were placed before the Expert Committee., None of the above facts have been disputed by the counsel for the petitioners. The petitioner is re‑agitating an issue that has already been settled by concurrent findings of the Directorate of Revenue Intelligence's Additional Director General, the CESTAT and this Supreme Court. Therefore, the petitioners' assertion that the Securities and Exchange Board of India was lackadaisical in its investigation is not borne out from the reference to the letter sent by the DRI in 2014., Additionally, it must be noted that in the present case, this Supreme Court has already exercised its extraordinary powers by setting up an Expert Committee to assess the situation in the market, suggest regulatory measures, and investigate whether there has been a regulatory failure. To expect the Court to monitor the investigation indefinitely, even after the committee has submitted its report and the Securities and Exchange Board of India has completed its investigation in twenty‑two out of twenty‑four enquiries, is not warranted., The petitioners have raised allegations against some of the members of the Expert Committee alleging that there was a conflict of interest which was not revealed to the Supreme Court of India., On 2 March 2023, this Supreme Court constituted the Expert Committee comprising domain experts and headed by a former judge of this Court. The allegations against certain members of the committee were raised by the petitioner for the first time only on 18 September 2023, almost six months after the constitution of the committee and several months after the Committee had submitted its report in May 2023. All the purported facts and documents relied on by the petitioner in this regard were available in the public domain well before the allegations were raised by the petitioner for the first time in September 2023. The belated allegations by the petitioner prima facie indicate that they have not been made in good faith., In any event, the allegation against Mr. Soma Sekhar Sundaresan is that he had represented the Adani group before various forums including the Securities and Exchange Board of India Board, as a lawyer. To buttress the submission, the petitioner has merely averred to one order of the Securities and Exchange Board of India Board dated 25 May 2007 which indicates that Mr. Sundaresan appeared for Adani Exports Ltd on an unconnected issue. On a specific query by the Supreme Court during the hearing, counsel appearing on behalf of the petitioner did not present any additional evidence. The acceptance of a professional brief by a lawyer in 2007 cannot be construed to reflect bias or even a likelihood of bias in 2023. There is an absence of proximity both in terms of time (the alleged appearance was sixteen years ago) and subject matter. There was also no justifiable reason for the petitioners to wait until the Expert Committee submitted its report., Similarly, the allegations against Mr. O. P. Bhatt and Mr. Kamath have not been adequately substantiated by the petitioners. With regard to Mr. O. P. Bhatt, the petitioner has alleged that he is presently working as the Chairman of a leading renewable energy company, which is working in partnership with the Adani group on certain projects. Additionally, the petitioner has also raised vague accusations against Mr. O. P. Bhatt and Mr. Kamath in relation to unconnected misconduct by Mr. Vijay Mallya and ICICI Bank, respectively., The petitioner has not established the link between these unsubstantiated allegations and the appointment of Mr. Bhatt and Mr. Kamath to the committee. Here too, the petitioner has only annexed newspaper reports published after the appointment of the committee by this Supreme Court, without any attempts to verify their authenticity or supplement them with independent research., Therefore, the allegations of conflict of interest against members of the Expert Committee are unsubstantiated and do not warrant this Supreme Court's serious consideration., The Expert Committee met on 17 March 2023 and noted that it would require specific factual briefings from the Securities and Exchange Board of India on all four aspects within the remit of the Committee. It further sought inputs from market participants with regard to (i) suggestions and measures to strengthen investor awareness; (ii) strengthen the statutory and regulatory framework; and (iii) secure compliance with the existing framework. We have discussed the Committee's analysis on the issue of whether there was a regulatory failure above. The other observations and recommendations of the Expert Committee report are discussed below., The Court in its order dated 10 March 2023 expressed concern over the impact of volatility in the securities market on Indian investors. It therefore empowered the Expert Committee with the remit to enquire into and assess the volatility in the market. The enquiry was to give a sense of direction to increase investor awareness, address deficiencies in the regulatory framework and enable the Committee to make any other suggestions to avoid unanticipated volatility which would adversely impact the interests of investors., Market forces act on the assessment of available information and its anticipated impact. This behaviour creates volatility in the market. However, such volatility is an inherent feature of the market and becomes a matter of concern when it has wide ramifications. The stocks of the Adani group witnessed volatility in the aftermath of the publication of the Hindenburg Report. This volatility was examined by the Expert Committee, which after examining the facts presented by the Securities and Exchange Board of India and engaging with market participants, opined that the impact of the Adani group‑related events on the overall market was low., The report of the Committee indicates that the Indian securities market showed resilience and the impact of the fluctuations in the Adani stocks was not deleterious to the economic ecosystem as a whole. The volatility in Adani stocks in the aftermath of the Hindenburg Report was stabilised due to market forces and mitigatory measures. While shares of the group fluctuated, it did not pose any systemic market‑level risk. According to the Expert Committee the trend observed in volatility in the Indian market in comparison with the global volatility index has been consistent since the COVID‑19 pandemic and was maintained even during the period when volatility was observed in the Adani stocks. Therefore, while events related to Adani stocks had an impact at an individual scale, it did not result in volatility in the market., After drawing the above conclusion, the Expert Committee has additionally made the following recommendation upon considering the submissions of the Securities and Exchange Board of India and other market participants: the Securities and Exchange Board of India has submitted that only recently it has made a regulatory intervention in terms of supervising the construction of stock indices. The Securities and Exchange Board of India must consider directing index writers to construct indices to compute volatility of stocks that are constituents of indices so that volatility in these stocks can be compared with volatility in the indices. The availability of such data on a real‑time basis would enable the market to be more informed in making its investment and divestment decisions. The Securities and Exchange Board of India must ensure that there are secular norms and periodic reviews for construction and design changes in indices. In its note filed in compliance with this Court's order dated 10 February 2023, the Securities and Exchange Board of India had submitted that it has implemented measures to deal with issues which may impact sudden and unusual price movements, excessive volatility, etc., by measures like Market Wide Circuit Breakers, Circuit Filters/Price bands on individual shares, additional surveillance measures, and Market Wide Position Limits. The Securities and Exchange Board of India has inter alia reiterated these submissions before the Expert Committee and has further, in its affidavit dated 10 July 2023, placed on record the existing ASM and graded surveillance measure framework. We are inclined to direct the Securities and Exchange Board of India to further consider the recommendations and take appropriate measures., The chain of events which triggered the Adani group‑related events and eventually the petitions filed before this Supreme Court were attributable to the report by short‑seller Hindenburg Research. The Expert Committee also points to the publication of the report to explain the volatility observed. The petitioner, on the other hand, has argued that the real cause of the loss of investor money was the alleged unchecked violations of law and artificial boosting of share prices which would always entail the risk of volatility upon being discovered in one way or the other. These allegations have been investigated by the Securities and Exchange Board of India including some investigations which were directed by this Supreme Court. The Securities and Exchange Board of India as the statutory regulator has stated that it would complete the process in accordance with law., However, this Supreme Court had sought inputs as to the role of short sellers, like Hindenburg, and the rules governing their actions as well as measures which may be taken to regulate them. Hindenburg Research describes itself as a research firm that specialises in forensic financial research. The firm purports to seek out situations where companies may have accounting irregularities, bad actors in management, undisclosed related party transactions, illegal/unethical business or financial reporting practices and undisclosed regulatory, product or financial issues., Short selling is a sale of securities which the seller does not own but borrows from another entity, with the hope of repurchasing them at a later date with a lower price, thus attempting to profit from an anticipated decline in the price of the securities. In its report, Hindenburg Research admits to taking a short position in the Adani group through US‑traded bonds and non‑Indian traded derivative instruments. The Securities and Exchange Board of India has submitted that short selling is a desirable and essential feature to provide liquidity and to help price correction in over‑valued stocks and hence, short selling is recognised as a legitimate investment activity by securities market regulators in most countries. Short selling is regulated by a circular notified by the Securities and Exchange Board of India on 20 December 2007. The Securities and Exchange Board of India submits that any restrictions on short selling may distort efficient price discovery, provide promoters unfettered freedom to manipulate prices, and favour manipulators rather than rational investors. Therefore, the International Organisation of Securities Commissions recommends that short selling be regulated but not prohibited with an aim to increase transparency. We record the statement made by the Solicitor General before this Supreme Court that measures to regulate short selling will be considered by the Government of India and the Securities and Exchange Board of India. The Securities and Exchange Board of India and the investigative agencies of the Union Government shall also enquire into whether there was any infraction of law by the entities which engaged in short‑selling on this occasion. The loss which has been sustained by Indian investors as a result of the volatility caused by the short positions taken by Hindenburg Research and any other entities acting in concert with Hindenburg Research should be probed., Informed decisions made by an aware investor population are a prerequisite to an efficient market. The data from 2019 to 2022 provided by the Securities and Exchange Board of India shows that there is an increase in the number of investors in the Indian economy and the options segment of the stock market. This requires specialized knowledge. The creation of a framework for this knowledge to percolate to investors lies in the policy domain. However, this Supreme Court sought an assessment of the existing framework to aid a determination of whether the regulatory framework suffers from infirmities which would lead to an adverse impact on Indian investors. The Court also sought inputs on measures which may be taken to increase investor awareness thereby creating a conducive environment for a more efficient market. The Expert Committee solicited views and perspectives from the Securities and Exchange Board of India and various market participants., Before the Expert Committee, the Securities and Exchange Board of India submitted that there has been no market default owing to price movements due to the measures taken by the Securities and Exchange Board of India. These measures include an index‑based market‑wide circuit breaker system, a limit of 20% in movement of prices in individual shares, price bands at 10% of the previous day's closing price for the futures and options segment, stock‑specific surveillance mechanisms like ASM and GSM, and cautionary messages displayed to brokers placing orders for stocks under ASM or GSM., The Expert Committee has concluded that having systems like ASM and GSM is not sufficient and that there must be a real prospect of investors being aware of heightened surveillance by measures such as clients being alerted when stocks are under ASM or GSM at the point of entry of orders. The Expert Committee also highlighted the possibility of there being a surfeit of information in which investors find themselves drowned. Measures to communicate relevant information in a comprehensive manner to the investors are therefore imperative for informed decision making., The Committee also explored investor awareness with respect to unclaimed securities, dividends and bank deposits of deceased next of kin which may be lost due to the legal framework. The Committee invited the Investor Education and Protection Fund Authority to present its workings and manner of administration. Based on its findings, the Committee recommended that the Government of India establish a centralised authority to handle and process unclaimed private assets. It suggested creating the Central Authority for Unclaimed Property which must aim to reunite assets of deceased persons with their next of kin. The Committee also made suggestions in the context of IEPFA which state: a. The integrated portal announced in the Finance Minister's Budget Speech should be expedited and process re‑engineering delegation to the issuer companies based upon type and threshold of the claims must be considered; b. The same may be reviewed on an incremental basis from time to time considering the benefits on reducing the timeline for disposal of claims vis‑à‑vis the risks of fraud; c. Pilot projects such as taking up names from the death registry in a given area to map it with the database of the IEPFA and proactively attempting to reach out to the next of kin should be considered; d. Registered market intermediaries who are answerable to the regulatory regime of financial sector regulators could be identified and recognised as agents for service delivery to enable release of unclaimed dividend and securities; e. An officer strength of a dozen personnel is evidently disproportionate. The IEPFA would need a full‑time Chief Executive Officer who would have specific key performance indicia that would be fixed by the governance oversight of the Authority. The Committee made further recommendation to induce financial literacy and make it a fundamental part of pedagogy right from school curriculum., The Securities and Exchange Board of India has submitted that while it is open to considering some of the above suggestions, it is not empowered to implement others as they lie outside its prescribed sphere of competence and expertise. In particular, the Securities and Exchange Board of India has submitted that the recommendations on creation of a financial redressal agency, central unclaimed property authority, and framework to set up a multi‑agency committee would require multiple regulators and the Government may need to look into these recommendations. We find it appropriate to direct both the Government of India and the Securities and Exchange Board of India to consider the recommendations of the Expert Committee with respect to investor awareness and create an appropriate legal framework to implement the recommendations., The Expert Committee was also directed to suggest measures to (i) strengthen the statutory and/or regulatory framework; and (ii) secure compliance with the existing framework for the protection of investors. Pursuant to its remit, the Committee in its report dated 6 May 2023 has made the following suggestions: a. Structural Reform: The Securities and Exchange Board of India must perform its complex functions in a structured form by ensuring greater transparency in law‑making, and greater societal involvement in contributing to the law. This will lead to greater compliance with the laws; b. Effective Enforcement Policy: The Securities and Exchange Board of India must optimise its resources and lay down policies for effective enforcement of its law by stipulating the criteria by which it may use its powers to initiate measures. This must be consistent with the legislative policy of the Securities and Exchange Board of India and an attempt must be made to apply the law prospectively; c. Judicial Discipline: Adjudicating Officers and Whole Time Members must show consistency and not take differing views in similar circumstances. Judicial discipline must be followed in applying ratios of previous decisions as well as following the decisions made at the appellate stage; d. Settlement Policy: The Securities and Exchange Board of India must have a robust settlement policy and formulate objective criteria to regulate it. It must not be hesitant to enter settlements whereby financial injury commensurate with the alleged violation may be inflicted on the party; e. Timelines: The Securities and Exchange Board of India must lay down and adhere to strict timelines for initiation of investigations, completion of investigations, initiation of proceedings, disposal of settlement, and disposal of proceedings; f. Surveillance and Market Administration Measures: The element of human discretion must be done away with as far as possible. It must be saved for extraordinary circumstances that would not have been factored in already. With regard to disclosures, all provision of data should be in machine‑readable format and interoperable across electronic platforms; g. The suggestions made on structural reforms by committees in the past should be followed.
id_901	2	These include the creation of a Financial Redress Agency that handles investor grievances across sectors; easing and centralising the process for recovering unclaimed private property, which is currently spread across agencies, either through the aegis of the Financial Stability and Development Council or even by appropriate legislation; creation of a framework for a multi‑agency committee to investigate complex enforcement matters. The same must have a temporary shelf life which ends upon initiation of prosecution. It may only be used in cases involving serious cross‑sectoral repercussions which would need multidisciplinary skill sets to act in coordination; and following the doctrine of separation within the Securities and Exchange Board of India in its quasi‑judicial and executive arm. The Securities and Exchange Board of India has addressed these recommendations in its affidavit dated 10 July 2023. The Securities and Exchange Board of India inter alia submitted that its existing framework already accounts for the recommendations of the Expert Committee on effective enforcement policy, judicial discipline, settlement policy, and surveillance and market administration measures. The Securities and Exchange Board of India opposed the recommendations with respect to laying down timelines on the ground that the time taken to form a prima facie opinion and conduct an investigation is contingent on many variable factors which render the process and time taken subjective. The Securities and Exchange Board of India submits that it cannot be uniformly bound to a time limit. Further, as noted above, the Securities and Exchange Board of India submitted that creation of a financial redressal agency, a central unclaimed property authority, and a framework to set up a multi‑agency committee would require multiple regulators and the Government of India may need to look into these recommendations. The Securities and Exchange Board of India argues that it is not competent to enforce the same and requires the Government of India to consider them., The Expert Committee made the above suggestions after applying its mind to the wealth of information collected from the Securities and Exchange Board of India, market participants, invitees and from its own expertise. These suggestions merit favorable consideration with a positive intent. We direct the Government of India and the Securities and Exchange Board of India to consider these suggestions and to take the benefit of the efforts put in by the Expert Committee. The approach in considering these suggestions must not be defensive but constructive. The Committee has favorably noted some of the measures that the Securities and Exchange Board of India has taken in reaction to the events and learnings from the market. The same attitude of advantage from the perspectives should be taken by the Government of India and the Securities and Exchange Board of India. The Union Government and the Securities and Exchange Board of India would be at liberty to interact with the Committee so as to take this forward. Since a member of the Bar who was a member of the Committee has been appointed to the Bench since the submission of the report, the Chairperson of the Committee will be at liberty to nominate a member with legal expertise and domain knowledge for the purpose of interacting with the Union Government and the Securities and Exchange Board of India., In a nutshell, the conclusions reached in this judgement are summarized below: a. The power of the Supreme Court of India to enter the regulatory domain of the Securities and Exchange Board of India in framing delegated legislation is limited. The Supreme Court of India must refrain from substituting its own wisdom over the regulatory policies of the Securities and Exchange Board of India. The scope of judicial review when examining a policy framed by a specialized regulator is to scrutinise whether it violates fundamental rights, any provision of the Constitution, any statutory provision or is manifestly arbitrary. b. No valid grounds have been raised for the Supreme Court of India to direct the Securities and Exchange Board of India to revoke its amendments to the Foreign Portfolio Investor Regulations and the LODR Regulations which were made in exercise of its delegated legislative power. The procedure followed in arriving at the current shape of the regulations does not suffer from irregularity or illegality. The Foreign Portfolio Investor Regulations and the LODR Regulations have been tightened by the amendments in question. c. The Securities and Exchange Board of India has completed twenty‑two out of the twenty‑four investigations into the allegations levelled against the Adani group. Noting the assurance given by the Solicitor General on behalf of the Securities and Exchange Board of India we direct the Securities and Exchange Board of India to complete the two pending investigations expeditiously, preferably within three months. d. The Supreme Court of India has not interfered with the outcome of the investigations by the Securities and Exchange Board of India. The Securities and Exchange Board of India should take its investigations to their logical conclusion in accordance with law. e. The facts of this case do not warrant a transfer of investigation from the Securities and Exchange Board of India. In an appropriate case, the Supreme Court of India does have the power to transfer an investigation being carried out by the authorized agency to a Special Investigation Team or the Central Bureau of Investigation. Such a power is exercised in extraordinary circumstances when the competent authority portrays a glaring, willful and deliberate inaction in carrying out the investigation. The threshold for the transfer of investigation has not been demonstrated to exist. f. The reliance placed by the petitioner on the OCCPR report to suggest that the Securities and Exchange Board of India was lackadaisical in conducting the investigation is rejected. A report by a third‑party organization without any attempt to verify the authenticity of its allegations cannot be regarded as conclusive proof. Further, the petitioner’s reliance on the letter by the Directorate of Revenue Intelligence is misconceived as the issue has already been settled by concurrent findings of the Directorate of Revenue Intelligence’s Additional Director General, the Customs, Excise and Service Tax Appellate Tribunal and the Supreme Court of India. g. The allegations of conflict of interest against members of the Expert Committee are unsubstantiated and are rejected. h. The Union Government and the Securities and Exchange Board of India shall constructively consider the suggestions of the Expert Committee in its report detailed in Part F of the judgment. These may be treated as a non‑exhaustive list of recommendations and the Government of India and the Securities and Exchange Board of India will peruse the report of the Expert Committee and take any further actions as are necessary to strengthen the regulatory framework, protect investors and ensure the orderly functioning of the securities market. i. The Securities and Exchange Board of India and the investigative agencies of the Union Government shall probe into whether the loss suffered by Indian investors due to the conduct of Hindenburg Research and any other entities in taking short positions involved any infraction of the law and if so, suitable action shall be taken., Before concluding, we must observe that public interest jurisprudence under Article 32 of the Constitution was expanded by the Supreme Court of India to secure access to justice and provide ordinary citizens with the opportunity to highlight legitimate causes before the Supreme Court of India. It has served as a tool to secure justice and ensure accountability on many occasions, where ordinary citizens have approached the Court with well‑researched petitions that highlight a clear cause of action. However, petitions that lack adequate research and rely on unverified and unrelated material tend to, in fact, be counterproductive. This word of caution must be kept in mind by lawyers and members of civil society alike., We are grateful to all the members and the Chairperson of the Expert Committee for their time, efforts, and dedication in preparing their erudite, comprehensive, and detailed report in a time‑bound manner. Subject to the consent and availability of the members and Chairperson of the Expert Committee, the Securities and Exchange Board of India and the Government of India may draw upon their expertise and knowledge while taking necessary measures pursuant to the recommendations of the Committee., The petitions shall accordingly stand disposed of in the above terms. Pending applications, if any, stand disposed of.
id_903	0	Public Interest Litigation No. 10 of 2019, Date of order: 19 July 2023. In Re: Cleanliness of Umiam Lake versus State of Meghalaya. Coram: Honourable Justice Sanjib Banerjee, Chief Justice Honourable Justice W. Diengdoh, Judge. Appearance: For the Petitioner: Mr D. Dkhar, Advocate; vice Mr S. P. Mahanta, Amicus Curiae. For the Respondents: Mr S. Sengupta, Additional Senior Government Advocate; Mr K. P. Bhattacharjee, Government Advocate; Mr H. Wanshong, Advocate; for Respondent 2: Mr J. M. Thnagkhiew, Advocate; for Respondents 4 and 5: Mr P. Nongbri, Advocate; for Respondent 6: Advocate., The State has disclosed the Meghalaya Waterbodies (Preservation and Conservation) Guidelines, 2023 by way of an affidavit. The guidelines do not deal with the most serious aspect of buildings and construction mushrooming around waterbodies. Though the guidelines indicate that garbage, trash and debris may not be dumped into the waterbodies, it is surprising that the guidelines are issued without indicating how far away from the high-water level of every waterbody construction may be permissible., Indeed, previous orders recorded that an expert committee had been set up by the State. Some of the suggestions given by the expert committee have been indicated in the affidavit filed by the State, but it is not clear as to how such suggestions have been given legal force., It is submitted on behalf of respondent No. 6, which has taken a keen interest in this matter from the beginning, that certain regular list eminent suggestions were given to ensure that the flora and the fauna around the waterbodies were not devastated in the name of promoting tourism or undertaking constructions; but such suggestions have not been taken into account by the State., The guidelines introduced by the State as disclosed in the affidavit fall woefully short of the expectations or the measures necessary to protect the waterbodies, particularly the Umiam Lake. The fragile biosphere and the ecology of the State have to be protected even as, on a daily basis, large chunks of forest land are being appropriated for human habitation or use., The State must indicate the measures taken by it to arrest deforestation as stretches along the highways all over the State reveal felling of trees and more and more of the mountain being chopped off for construction purposes. Though, officially, there are previous claims by the State that more than seventy-two per cent of its total area is covered by forest, it would be interesting to ascertain whether any recent survey in such regard has been conducted for such report to be placed before the Court., Further, in the absence of any other employment opportunities and in the name of promoting tourism, the natural beauty of the State should not be destroyed and the State should be alive to the problem. Several of the rivers, including the Umkhrah in Shillong itself, are carrying such contaminated water that they may not be fit even to step into. Elsewhere, rivers and streams which may not be perennial carry so much filth and dirt that people living downstream are deprived of the use of the water altogether., There has to be a more wholesome approach undertaken by the State and it is hoped that the setting up of an expert body with suggestions from knowledgeable citizens possessing qualifications in such regard would go a long way in the State preparing an action plan and persuading the District Councils to abide by the same., In short, the guidelines of 2023 published by the State appear to be more of a formality without addressing the real issues., The State has to do much better. A further report should be filed six weeks hence. The prohibition on construction around waterbodies pursuant to previous orders will continue till the State addresses such issue in a more considered set of rules or guidelines that it frames., In the meantime, a set of suggestions have been made over by Advocate for respondent No. 6 to Advocate for the State. The State may consider such suggestions, which appear to be in greater public interest than the guidelines framed by the State.
id_904	0	First Appeal No. 1004 of 2022 was instituted on 21 November 2022, reserved on 6 February 2024 and decided on 20 February 2024. The appellant, Amazon Seller Services Private Limited, having its registered office at Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram (West), Bengaluru-560055, Karnataka, India, is represented by its authorized signatory Mr. G. S. Arun Kumar. The opposite party No.1 is Ms. Jaspreet Kaur, wife of Sandeep, Assistant Professor, residing at 16/2A Staff Colony, Sardar Beant Singh State University, Gurdaspur, Punjab. Respondent No.2/Complainant is Alpha Bita, AB434/Silver Stone, Arc... Shinganpurgam, Katargam, Surat, Gujarat, 395004., First Appeal under Section 41 of the Consumer Protection Act, 2019 is filed against the order dated 24 June 2022 passed by the District Consumer Disputes Redressal Commission, Gurdaspur. Quorum: Honorable Mrs. Justice Daya Chaudhary, President; Ms. Simarjot Kaur, Member., For the appellant: Sh. Atul Goyal, Advocate. For respondent No.1: Sh. Sandeep, Authorized Representative. For respondent No.2: Service dispensed with vide order dated 28 April 2023., Appellant/Opposite Party No.1, Amazon Seller Services Private Limited, has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 being aggrieved by the impugned order dated 24 June 2022 passed by the District Consumer Disputes Redressal Commission, Gurdaspur whereby the complaint filed by the complainant had been partly allowed., Brief facts of the case are that the complainant Ms. Jaspreet Kaur placed an online order of a foldable laptop desk (black) from the website Amazon.in on 12 May 2021 having invoice number GJ-1573782235-2122 and order number 407-1207875-8022715. However, the complainant received a rice bowl in dirty condition on 18 May 2021 instead of the wooden laptop table. She called the customer care of Opposite Party No.1. In response, the customer care offered to refund the money but the complainant requested a replacement of the item. An inquiry was set up by the Amazon agent for receiving the wrong item (order 407-1207875-8022715). It was mentioned in the complaint that the complainant received an email from Opposite Party No.2, a carbon copy of which was sent to Opposite Party No.1 stating “Sorry by mistake”. Thereafter, no communication was received. She again sent an email through sandeep@ddu.du.ac.in to officer@amazonpay.in but no reply was received. An online complaint was also filed with the National Consumer Helpline with grievance number 2803590. In response, Opposite Party No.1 replied that no refund or exchange could be offered as the delivered product was not returned within the stipulated period, as per Amazon policy. On closing of the complaint, Opposite Party No.1 sent an email on 27 June 2021 to the complainant and offered full refund as replacement was not possible at that point. The complainant, not satisfied with the assurances, filed the complaint before the District Consumer Disputes Redressal Commission seeking directions to refund Rs 380 along with interest at 18 per cent per annum and GST, an amount of Rs 20,000 as compensation and Rs 5,000 as cost of litigation., Upon issuance of notice by the District Consumer Disputes Redressal Commission, Opposite Party No.1 filed its reply and raised certain preliminary objections, alleging that the averments made in the complaint were wrong. Opposite Party No.1 referred to Section 2(1)(w) of the Information Technology Act, 2000 which defines an e‑commerce marketplace as an ‘intermediary’ for display of products by third‑party sellers and subsequent purchase by buyers. As per Section 79 of the Act, Opposite Party No.1 cannot be held liable for third‑party content on its e‑commerce site. Further, the contract of sale between the seller (Opposite Party No.2) and the buyer (the complainant) does not make the intermediary (Opposite Party No.1) a party to the sale‑contract. It was an inter se dispute between the complainant and Opposite Party No.2. Opposite Party No.1 pleaded that the complainant was not covered under the definition of consumer as per the Consumer Protection Act, 2019. The product was delivered on 18 May 2021; the complainant raised the grievance after the return window had closed. Opposite Party No.1 had also offered full refund but the complainant insisted on delivery of the original product. Opposite Party No.1 denied all allegations and prayed for deletion of its name from the array of opposite parties. It was prayed for dismissal of the complaint., Opposite Party No.2 was proceeded against ex parte vide order dated 29 April 2022 by the District Consumer Disputes Redressal Commission., By considering the averments made in the complaint as well as in the reply, the complaint filed by the complainant was partly allowed vide order dated 24 June 2022 passed by the District Consumer Disputes Redressal Commission. The relevant part of the order is reproduced as follows: In the light of all the above, we partly allow the complaint and order Opposite Party No.1 Amazon Co. to arrange delivery of the product as ordered by the complainant through Opposite Party No.2 vendor or any of its other vendors, besides paying her Rs 5,000 as compensation for having caused her harassment on account of delivery of a totally different product and delay cum physical harassment to her professor spouse and wasting his valuable time non‑productively, which cannot be compensated in terms of money, and also to pay another Rs 5,000 as cost of litigation etc. We also find during the present proceedings that the titled opposite parties, being accomplices in the unfair trade practice, have unscrupulously exploited an unknown uncounted number of consumers and are thus liable to punitive damages and we order the titled opposite parties to deposit a sum of Rs 10,000 in the District Consumer Legal Aid account. The awardees are further ordered to ensure compliance with all our above orders within 45 days of receipt of the certified copies of these orders; otherwise an additional interest at 9 per cent per annum shall be attracted on the aggregated awarded amount from the date of filing of the present complaint till payment is made in full., The appellant/Opposite Party No.1 has filed the present appeal being aggrieved by the order dated 24 June 2022 passed by the District Consumer Disputes Redressal Commission by raising a number of arguments., Mr. Atul Goyal, Advocate, learned counsel for the appellant submitted that respondent No.1/complainant had placed an order i.e., LXNR Laptop Wooden Foldable Table (Black) vide order number 407-1207875-8022715 on 12 May 2021 from the independent third‑party seller Alpha Bita (respondent No.2). Respondent No.1/complainant alleged delivery of a wrong product i.e., rice bowl in dirty condition instead of the wooden laptop table. Respondent No.1/complainant raised grievance with respondent No.2/seller on 18 May 2021. Despite the expiry of the return window on 1 June 2021, a full refund was offered to the complainant without admitting any liability vide an email dated 27 June 2021. However, the complainant insisted on a replacement. Learned counsel submitted that the contract of sale was executed between the complainant and respondent No.2/seller and there was no privity of contract between the appellant and the complainant. The item was packed, sealed, shipped and delivered by respondent No.2/seller without any involvement of the appellant. Liability, if any, with respect to delivery of the wrong product or non‑receipt of refund can only be fastened upon respondent No.2/seller. The appellant merely operated an e‑commerce marketplace. The onus of proof of deficiency was solely upon the complainant and not on an intermediary. Learned counsel further submitted that the conditions of use at the Amazon portal clearly display the conditions of use, and the consumer must click ‘I agree’ before ordering., Learned counsel for the appellant also submitted that Clause 3 of the Conditions of Use categorically states the legal position of the appellant that it merely operates an e‑commerce marketplace to facilitate sale transactions between the buyer and independent third‑party seller. Clause 13 of the Conditions of Use states that the appellant is not liable. The role of the appellant is limited as an intermediary and the appellant cannot be held responsible for the contents of the package or refund. The appellant has not even received the amount paid by customers for the commodities from their marketplace. The consideration amount paid by customers was in lieu of their order as paid directly to the independent third‑party seller as per the Reserve Bank of India directions dated 24 November 2009. Learned counsel relied upon judgments of the Honorable Supreme Court in SGS India Limited v. Dolphin International Limited (Civil Appeal No. 5759 of 2009), M/s Magma Fincorp Ltd. v. Rajesh Kumar Tiwari (Civil Appeal No. 5622 of 2019), and the Honorable National Consumer Disputes Redressal Commission in Paras Jain v. Amazon Seller Services (P) Ltd. (Consumer Case No. 930 of 2017)., Mr. Sandeep, the authorized representative of respondent No.1/complainant, submitted that the complainant raised the grievance with respondent No.2/seller on 18 May 2021 and with the appellant after expiry of the return window. Despite the expiry of the return window on 1 June 2021, a full refund was offered to the complainant without admitting any liability vide email dated 27 June 2021. The Amazon package was delivered on 18 May 2021 at approximately 9:30 a.m. Immediately upon discovering the wrong product, the matter was reported to Opposite Party No.1 and a request for replacement was made. The inquiry for supplying the incorrect product was officially lodged on the same day at around 2:00 p.m. A second complaint was filed to amazonpay‑nodal‑officer, Mr. Sujash Biswas, on 25 June 2021 through email, to which reply was still awaited. On 25 June 2021, the complainant approached the National Consumer Helpline, to which the appellant replied that no refund or exchange was availed as the delivered product was not returned within the stipulated period. Thus, as per Amazon policy, the matter was closed. The authorized representative further submitted that a violation of Amazon’s replacement policy occurred. Under the replacement policy, if a different item is received from the description on the product detail page, the buyer qualifies for free replacement. The complainant purchased the item from Amazon.in and thus was entitled to free replacement. However, the request for replacement was declined and a full refund was proposed by Opposite Party No.1. It was averred that the replacement was declined despite the item being available in stock of the same seller. Thus, the appellant violated its own replacement policy. The appellant was an agent and co‑seller of respondent No.2/seller and not merely an intermediary. The appellant had a role in the harassment and loss caused to the complainant due to supply of a rice bowl instead of the wooden laptop table. The company earns revenue each time a consumer clicks and visits its website. It is the duty of the intermediary to verify the bona fides of the seller registered with Opposite Party No.1. Intermediaries are required to provide service enabling delivery of online contents to the end user. An intermediary is defined in Section 2(w) of the Information Technology Act, 2000 and thereafter the Information Technology (Intermediary Guidelines) Rules, 2011 were issued. To provide protection to intermediaries, general conditions have been framed as safe harbour protection subject to restrictions mentioned in sub‑sections (2) and (3) of Section 79 of the Information Technology Act, 2000. Amazon should ensure that products sold on its marketplace by the seller are genuine. Buyers cannot presume that all products sold through the electronic marketplace are genuine. The portal has to certify that the products shipped are inspected before delivery to the buyers. In the present case, the seller listed the product on the electronic marketplace and used the Fulfilled by Amazon (FBA) service. In such cases, Amazon does not break the seal of the products but has mechanisms in fulfillment centers to ensure that the products are genuine and takes photographs before dispatch. Amazon must have taken photographs with weight. The packing must have been video‑recorded, but no such evidence was placed on record. The appellant/Amazon is not a mere broker or intermediary as considered in the commercial world. It was acting as a representative or agent of Opposite Party No.2/seller during the negotiation. The transaction was routed through the appellant/Amazon when the contract was executed between the complainant and Opposite Party No.2. Therefore, the appellant/Amazon was personally answerable for the supply and delivery of goods., The authorized representative relied upon judgments of the Honorable National Consumer Disputes Redressal Commission in Emerging India Real Assets Private Limited v. Kamer Chand & Anr. (Revision Petition No. 765 of 2016, decided on 30 March 2016) and the State Commission, Chandigarh in Amazon Sellers Service Private Limited v. Gopal Krishan and Others (FA No. 27 of 2017, decided on 17 February 2017)., Respondent No.2/Opposite Party No.2 chose not to appear before the District Consumer Disputes Redressal Commission despite service and was proceeded against ex parte. Therefore, the averments made in the complaint are deemed to have been admitted., We have heard the arguments raised by learned counsel for the appellant and the authorized representative of respondent No.1. The service of respondent No.2 was dispensed with vide order dated 28 April 2023. We have also carefully perused the impugned order passed by the District Consumer Disputes Redressal Commission and the relevant documents., Facts relating to filing of complaint by the complainant before the District Consumer Disputes Redressal Commission, reply thereof and after hearing the oral arguments raised by the parties and passing of impugned order dated 24 June 2022 by the District Consumer Disputes Redressal Commission and thereafter filing of the present appeal before the National Consumer Disputes Redressal Commission by the appellant are not in dispute., Admittedly, respondent No.1/complainant placed an online order of a foldable laptop table (black) for consideration amount of Rs 380 from the website of Amazon/appellant and a wrong product was received. The appellant refused to replace the product as it was not returned within the stipulated exchange window period, meaning the wrong product was not returned within 30 days of delivery for full refund as mandated by Amazon customer service. In spite of the condition, the appellant still offered full refund, which was declined by the complainant who insisted upon replacement. The appellant reiterated that it cannot be held liable as per provision of Section 79 of the Information Technology Act, which reads as follows: \Section 79: Exemption from liability of intermediary in certain cases: (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub‑sections (2) and (3), an intermediary shall not be liable for any third party information data or communication link made available or hosted by him. (2) The provisions of sub‑section (1) shall apply if a) The function of the intermediary is limited to provide access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or b) The intermediary does not i) Initiate the transmission, ii) Select the receiver of the transmission, and iii) Select or modify the information contained in the transmission; c) The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf. (3) The provisions of sub‑section (1) shall not apply if a) The intermediary has conspired or abetted or aided or induced, whether by threats or promise or authorize in the commission of the unlawful act; b) Upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource, controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. Explanation – for the purpose of this section, the expression third party information means any information dealt with by an intermediary in his capacity as an intermediary. As stated above, being an intermediary.\, The issue for determination is whether an online marketplace operator/portal can be held liable for deficiency in service/unfair trade practice for violation of rights of respondent No.1/complainant, who was a consumer in the present case., It has been observed that the appellant has placed on record Conditions of Use (Annexure‑C). However, no agreement has been executed between the appellant and Opposite Party No.2 to operate in its marketplace. In the absence of the same, an adverse inference is drawn against the appellant and the benefit of safe harbour protection under Section 79 of the Information Technology Act, 2000 cannot be given. In the present appeal, the complaint of respondent No.1/complainant must be dealt with as per the provisions of the Consumer Protection Act, 2019. Respondent No.1 is covered under the definition of consumer in the Act. Section 2(7) defines ‘consumer’ as: \consumer means any person who (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose. Explanation – For the purposes of this clause, (a) the expression ‘commercial purpose’ does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self‑employment; (b) the expressions ‘buys any goods’ and ‘hires or avails any services’ includes offline or online transactions through electronic means or by teleshopping or direct selling or multi level marketing.\ As per the aforesaid provision, the appellant cannot be absolved of its responsibility towards delivery of the wrong product to the complainant., In the present case Opposite Party No.2/seller was registered with Amazon and used the Fulfilled by Amazon service. The service allows businesses to store, pick, pack and ship customers’ orders. When a business becomes an Amazon seller and uses the service, it sends its products to Amazon fulfillment centers, which deliver to consumers. Therefore, the appellant cannot escape its responsibility under the garb of intermediary and safe harbour protection., We have no doubt that the appellant was acting as a representative or agent of Opposite Party No.2 in the transaction/contract that took place between the complainant and Opposite Party No.2. Thus, the contract between the complainant and Opposite Party No.2 was also concluded through the appellant. In view of this, the appellant is personally answerable for the supply and delivery of wrong goods and consequences arising out of the breach of contract. It was the appellant’s duty as facilitator to ensure that goods sold through any individual are manufactured as per quality standards. If the product purchased through the platform of the appellant was wrong, it cannot escape liability., Online marketplace companies earn revenue each time a consumer clicks and visits their website. The same is done as per the terms and conditions between the online portal company and the sellers for consideration. Moreover, the sellers are registered with the appellant e‑commerce marketplace., In the light of the above discussion, Opposite Party No.1 is held personally and jointly liable for the deficiency in service and harassment caused to the complainant. Accordingly, we do not find any merit in this appeal and the appeal is hereby dismissed and the order dated 24 June 2022 passed by the District Consumer Disputes Redressal Commission is upheld., The appellant had deposited an amount of Rs 11,233 at the time of filing the appeal with this Commission. Said amount, along with interest accrued on the amount deposited by the appellant, if any, shall be remitted by the Registry to the District Consumer Disputes Redressal Commission after the expiry of 45 days of sending the certified copy of the order to the parties. The concerned parties may approach the District Consumer Disputes Redressal Commission for release of the same and the District Consumer Disputes Redressal Commission may pass the appropriate order in this regard, in accordance with law., Since the main case has been disposed of, all pending miscellaneous applications, if any, are accordingly disposed of., The appeal could not be decided within the statutory period due to heavy pendency of court cases.
id_905	0	The three contempt petitions were preferred pursuant to directions of the Division Bench of the Delhi High Court vide order dated 31 August 2023, whereby a show‑cause notice was issued against Naresh Sharma, son of Dev Raj Sharma, resident of 119, SB Nagar, Pathankot, Punjab, as to why criminal contempt proceedings under Section 2(c) read with Section 12 of the Contempt of Courts Act, 1971 should not be initiated against him., The contemnor, Naresh Sharma, had filed Letter Petition Applications No. 611/2023, 612/2023 and 613/2023 against the judgment dated 20 July 2023 passed by the learned Single Bench of the Delhi High Court in W.P. (Crl.) 1797/2023, W.P. (Crl.) 1798/2023 and W.P. (Crl.) 1809/2023, seeking (a) setting aside of the judgment dated 20 July 2023 in W.P. (Crl.) 1797/2023; (b) criminal charges against the Single Bench for a meaningless, defamatory, criminal and seditious judgment on an important issue under Indian Penal Code sections 124A, 166A(b), 167, 192, 193, 217, 405, 409, 499, 500 and Section 16 of the Contempt of Courts Act, 1971, with a request for the death penalty; (c) taking cognisance of additional affidavits bearing diary numbers 1130202/2023 and 1330905/2023 filed with W.P. (Crl.) 1797/2023; (d) consideration of all prayers in W.P. (Crl.) 1797/2023 together with the additional affidavit; (e) criminal prosecution of all respondents; and (f) complete obliteration of Respondents Nos. 5‑7, their henchmen within the Government of India, and other alleged conspirators, including the imposition of the death penalty, rigorous imprisonment, solitary confinement and confiscation of properties, particularly those of the Tata group, to recover the alleged loss to the country., When the aforesaid Letter Petition Applications were listed for hearing on 31 August 2023 before the Hon'ble Division Bench of the Delhi High Court, the Court noted the objectionable and shocking allegations against the learned Single Bench, various government officials and the Hon'ble Supreme Court of India. The allegations included (i) a claim that Article 14 of the Constitution of India does not permit mixing unrelated matters and that the Single Bench should be criminally charged, with a complaint filed at Tilak Marg Police Station, New Delhi, on 11 August 2023; (ii) aspersions on the impugned judgment, alleging that the summary of the petition was imprecise and that the legal connection between certain respondents was ignored; (iii) accusations of criminal defamation against the Single Bench under Indian Penal Code sections 499 and 500; (iv) a prayer for death‑penalty punishment by firing squad for alleged government officials; (v) further allegations that the judgment was baseless, defamatory and violated fundamental rights, with a request that the Single Bench be prosecuted for criminal defamation; (vi) allegations against the Hon'ble Supreme Court, invoking a passage from Maneka Gandhi v. Union of India (1978) 1 SCC 248; and (vii) claims that the Single Bench stole the appellant’s fundamental right under Article 14 and falsely asserted that he had been heard at length., The Division Bench of the Delhi High Court, after taking note of the serious allegations raised by the contemnor, sought his explanation and observed that the Court cannot disregard vilification of a judge of this Court and the Hon'ble Supreme Court. It directed the issuance of a show‑cause notice against the contemnor as per the applicable provisions of law., To adjudicate the guilt of the contemnor, it is necessary to consider the back‑and‑forth of these petitions. The contemnor had preferred criminal writ petitions W.P. (Crl.) 1797/2023, W.P. (Crl.) 1798/2023 and W.P. (Crl.) 1809/2023 under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seeking directions for immediate criminal prosecution of respondents including the Union of India, Delhi Police, Mumbai Police, Bengaluru Police, Sir Dorabji Tata Trust, Sir Ratan Tata Trust, Tata Companies (including Tata Sons Private Limited), various public organisations, government ministries, departments, the appointment committee of the cabinet consisting of the Prime Minister and Home Minister, and private organisations alleged to be colluding with Tata., The learned Single Bench of the Delhi High Court disposed of the aforesaid criminal writ petitions by a judgment dated 20 July 2023, holding that (i) the writ petitions were motivated by an unknown purpose that perverted the process of the Court and the government; (ii) the facts disclosed were confusing, incoherent and without material support, invoking annoyance; (iii) no facts or material were pleaded that could support a claim of infringement of fundamental right under Article 21; (iv) the petitioner could not set out any reasonable cause or ground to invoke the writ jurisdiction; (v) the petitions were frivolous, vexatious, scandalous and devoid of any real issue; and (vi) the filings amounted to an abuse of the process of law. Consequently, the Court dismissed the petitions as frivolous and ordered costs of Rs 30,000 in each petition., The Court further observed that while the judiciary is endeavouring to reform and modernise access to justice, it is essential to address frivolous and vexatious litigation. It highlighted the need for policies to deter such litigation, including the imposition of costs, and noted that frivolous petitions not only burden the courts but also affect the public at large. The Court emphasized that judges must balance the right of citizens to access the courts with the necessity to curb abusive litigation, and that reasonable sanctions and cost orders would serve as a deterrent., Accordingly, the petitions were dismissed with costs of Rs 30,000 each, to be deposited within two weeks. The cost for W.P. (Crl.) 1797/2023 was to be paid to the Delhi High Court Bar Association Lawyers Social Security & Welfare Fund, New Delhi; for W.P. (Crl.) 1798/2023 to the Delhi High Court Bar Association Employees Welfare Fund, New Delhi; and for W.P. (Crl.) 1809/2023 to the Civil & Session Courts Stenographers Association, Delhi., The contemnor replied to the show‑cause notice, stating that he had approached the Hon'ble Delhi High Court under Article 21 of the Constitution of India and that the judgment had stolen his right under Article 14, concealed in a single sentence within a fifty‑page judgment. He contended that the notice was poorly worded and contained an incorrect address. He requested that the Hon'ble Delhi High Court take action under criminal law if the allegations against the judiciary were unsubstantiated, asserting that such allegations cannot be countenanced. He further argued that the underlying writ petition sought death‑penalty punishment by firing squad for alleged government officials, describing the situation as a criminal takeover of the Indian economy by Tata companies and a super‑Telgi scam, and even suggested public hanging of top criminals. He expressed willingness to face the death penalty if his claims were deemed false. He also raised objections to the references made against the Hon'ble Supreme Court, invoking Maneka Gandhi v. Union of India, and sought criminal defamation charges against the Supreme Court if his statements were deemed unlawful. Additionally, he questioned the judgment’s claim that the Single Bench stole his fundamental right under Article 14, arguing that such an allegation was absurd. He complained that the notice’s wording was ambiguous regarding his failure to provide an explanation and that the Court’s language was loose and unbecoming of its authority.
id_905	1	The death penalty can be justified as follows where each Indian Penal Code provision is followed in the parenthesis by its maximum prison sentence without going into the finer details if it is rigorous imprisonment and leaving aside Indian Penal Code section 124A considering a bar on its prosecution by the Supreme Court of India: Indian Penal Code 166A(b) (2 years), 167 (3 years), 193 (3 years), 217 (2 years), 370 (10 years), 409 (10 years), 500 (2 years), and Section 16 of the Contempt of Courts Act, 1971 (0.5 years). Please note that the application of Indian Penal Code 370 is justified in Point 36 of Writ Petition (Criminal) 1797/2023 because his right under Article 14 was trampled over by the Single Bench, and he had forgotten to include this in the Letters Patent Appeal. So, the maximum sentence amounts in total to 32.5 years of imprisonment without multiple counts since the wrong judgment trampled over Article 21 of almost everyone in this country and considering the exalted position of the Single Bench, it fits the exceptions to give the death penalty., The phrase comparison of the judge to the devil is an incorrect interpretation because wondering if the judgment could be written by anyone who is not truly the devil incarnate is a weaker statement than comparing the Judge to the devil, and he is appalled with such an exaggeration by the Honourable Court, and the phrase is selectively quoted as the same sentence talks of the theft of Article 14 by the Single Bench., When the notice says in Point 2: The Appellant, shockingly, also makes allegations against the Supreme Court of India and even emphasises punishment of death penalty for government officials by a firing squad. There is no allegation made against the Supreme Court of India and the remaining issue has been answered in Point 4. He also finds the mention of Supreme Court of India and firing squad in the same breath as unfortunate that could be construed as defamatory because he never said anything like that in Writ Petition (Criminal) 1797/2023 or its In Point 29 of Writ Petition (Criminal) 1797/2023, the Appellant had said that the Supreme Court of India had reviewed its judgment on a very big issue if a Society under the Societies Registration Act, 1860 was a State under Article 12, where the decision changed from no to yes, without bothering about the underlying issue that such a Society is criminal by its very establishment as per the Writ Petition (Criminal) 1798/2023 filed by him, and this made the said judgment and its review a meaningless exercise. This is a criticism of the Supreme Court of India backed by evidence that could be construed as defamatory if the evidence does not hold but instead of going through this exercise, it is very surprising that the Division Bench is so careless in using such language., When the notice says in Point 2: These averments, extracted hereinabove, are prima facie aimed at scandalising and lowering the authority of the Court. In our opinion, the statements have been advanced with the malafide intention to interfere with the administration of justice. There is a fine line of distinction which separates critique from allegations fuelled by disdain and a hostile intent to scandalise the court. The pleadings in the present appeal amount to the latter category and must be taken cognizance of. One would have hoped that this Honourable Court would not be so careless in making such statements because it has no method of proving the Appellant's intention when the judgment is wrong, his averments are not proved wrong at least yet, and hence, such sentences are defamatory. The Appellant states unequivocally that he never has had any intention to vilify, scandalise, or lower the authority of any Court, interfere with the administration of justice, or have any hostility for any Court, and in the present case, his disdain is limited only to the substandard, improper judgment and this notice., When the notice says in Point 2: This Court cannot disregard vilification of this magnitude against a judge of this Court and the Supreme Court of India. The Division Bench shows no apparent concern as elicited by its lack of acknowledgement that the Single Bench stole Article 14 of the Constitution of India from the Appellant, and in doing so, it illustrates its lack of composure, possibly because it has never been challenged like this, which would be rather unfortunate if correct for meaningful, pinching arguments are intrinsic to the business of administration of justice, by siding with the Single Bench even to the point of forgetting its sworn custodianship of the Constitution of India and that too on an issue as big as the Single Bench stealing a fundamental right from the Petitioner. Division Bench should be criminally charged with defamation against the Appellant as well as the Supreme Court of India., The Appellant states that a remarkable event that took place in the hearing presided over by the Single Bench was that when he said that these crimes started under the Government of the Barrister Jawaharlal Nehru, the Single Bench interjected by saying that no names should be taken, which can be checked by video recording. Clearly, there cannot be any proper legal provision supporting her stand since we are in the business of calling a spade a spade if the law says so, and hence, she should be charged with another count of Criminal Contempt of Court. For the sake of completeness, the Appellant states that he is extremely conflicted about Nehru because on one side, he learnt very much from his book Discovery of India including on the vested interests that helped him put into perspective the silent mob aspect of present‑day India that is the underlying theme of this Petition and on the other side, it cannot be denied that his Government laid the seeds for rampant crime that exists in India today by giving into criminal entities like the Tatas., The Appellant states that it was implicit in his filing the appeal that he was challenging all aspects of the judgment including the fine and he wants to make an explicit mention to be on the safer side., The Appellant states that he does not want to defend himself any further than this and stands by all his written submissions to this Honourable Court., The Appellant states that if this Honourable Court wishes to give him a prison sentence, he requests rigorous imprisonment till death penalty is given, if it is to be given., The Appellant states that if the Division Bench fails to provide a satisfactory response to the above charges of defamation, selective quotes, and lack of acknowledgement of theft of Article 14 of the Constitution of India by the Single Bench, then he requests this Honourable Court to initiate appropriate criminal proceedings against the Division Bench including for Criminal Contempt of Court with exemplary punishments considering the exalted positions they occupy., On the issue of applications under Code of Criminal Procedure section 482 accompanying the Letters Patent Appeal listed as Civil Miscellaneous instead of Criminal Miscellaneous that the Appellant raised in the 31 August 2023 hearing, he approached the listing and filing branches as he was told by the Honourable Court, and the latter asked him if the Honourable Court issued any directions to make them as Criminal Miscellaneous. He requests the Honourable Court to issue appropriate directions to make this change although he is surprised that the error is repeated in the notice by the Division Bench. The addendum dated 29 August 2023 on this issue to his Police Complaint dated 11 August 2023 against the Single Bench is provided as Annexure A‑8, which he had filed considering the importance of the issue because a criminal issue is treated as civil. The second attachment of this addendum is the 400+ pages long 31 August 2023 cause list, which is omitted. Lastly, there is nothing whatsoever in the cited judgment: T. Arivandandam v. T.V. Satyapal [1977] 4 SCC 467 that envisages a role for the Bar Council to stop or be a check even for \ethical conduct\ for a petitioner‑in‑person approaching the Court as was mentioned in Points 87‑91 of the judgment. An abuse of process of law by individuals cannot be a reason to take away or put an improper check on the exercise of their right to approach the Courts particularly when such situations are dealt with the existing law: Chapter X of the Indian Penal Code. If the Appellant has done anything to attract the might of criminal law, then he should face the music., In addition to the above, the Contemnor made a complaint dated 11 August 2023 to the Station House Officer, Tilak Marg Police Station, Delhi stating as under: \The Station House Officer Tilak Marg Police Station New Delhi 110001 Dear Sir: I had filed three Writ Petitions (Criminal) at the Honourable Delhi High Court with numbers 1797, 1798, and 1809 of 2023. In a judgment delivered on 20 July 2023, Justice Swarana Kanta Sharma dismissed all these three petitions. I am planning to file a Letters Patent Appeal for all these three petitions. I attach the certified copy of the judgment obtained from the Honourable Delhi High Court. One could also obtain this judgment from http://164.100.69.66/jsearch/ by entering the aforesaid case numbers. The judgment is criminal on many counts with cognisable offences. Since the proper process to initiate the prosecution of these offences is through the Police, hence, I am approaching you. It is your decision if you want to wait for the Court to make a decision before acting on this complaint for a large part but there are two following issues on which it won't be proper for you to wait and you should act right away. The other issues are mentioned in the Letters Patent Appeals and I would provide their copy to you when I submit them. First issue Point 66 of the attached judgment says: \\\Therefore, the reliefs sought before this Court through all the three petitions unequivocally fall short and do not meet the standards of either factual or legal sufficiency. Furthermore, the language employed in the petition is deficient and does not make out a case for grant of any of the reliefs prayed for. The petitioner has failed to show that any of the fundamental rights so claimed by him within the ambit of Article 21 of the Constitution i.e. 'right to have public organisations which are not criminally established' or 'right to seek one's own criminal records' are covered under Article 21 to further probe any violation of the same\\\. The second sentence says unequivocally that the justice cannot be provided because of the language, which cannot be confused with the legal arguments as per the first sentence. This stand is against Article 14 of the Constitution of India that says that unrelated issues cannot be mixed. Hence, Justice Sharma should be immediately charged under Indian Penal Code sections 124A, 166A(b), 167, 217, 405, and 409. Considering her exalted position, exemplary punishment should be given to her. Notwithstanding the bar on the prosecution of Indian Penal Code section 124A from the Supreme Court of India in Writ Petition (Civil) No. 682 of 2021, the other Indian Penal Code sections should be applied. It is ironic and alarming that in Writ Petition (Criminal) No. 1797 of 2023, I provide evidence that Gulzarilal Nanda Ministry of Home Affairs in the 1960s stole Article 14 of the Constitution of India from the Government employees only to find out that the Judge deciding the matter did the same to me on my three petitions, two of which are of huge significance for the country. Second issue Point 114 of the judgment says: \\\He was given a choice of being assisted by a counsel; but he refused to be assisted\\\. I do not recall this point being discussed, which should be cross‑checked by video recording of the Court proceedings. I was not given adequate time to present my arguments as she said that she already understood them from the petition, which she complimented as well written, and the judgment is in stark contrast to what transpired in the Court. Clearly, if it was merely confirmed that I would represent myself, then that does not amount to the above quoted sentence with mischievous connotations. Nothing in this complaint should be construed as saying that I wanted a counsel to represent me, and I was happy to represent myself. Charges under Indian Penal Code sections 192 and 193 should be considered. I guess why this issue is important is that the judgment is outrageously criminal, my Writ Petitions are of extreme importance to the country, and such mischievous lies if not rebutted could be later used to rationalise the wrong decision. Judges have judicial immunity but it does not apply in this case because Indian Penal Code section 77 does not apply as it cannot be said that the judgment was given by the Judge \\\in the exercise of any power which is, or which in good faith he believes to be, given to him by law\\\, and the Judges (Protection) Act, 1985 does not apply as it cannot be said that the judgment was given by the Judge \\\in the course of, acting or purporting to act in the discharge of his official or judicial duty or function\\\. This complaint would be added to my Letters Patent Appeals. I am in Delhi for some more time and would be available for anything you need from my end. If you think that you are faced with a new situation of Police complaint against a Judge for his/her decision, then you should convince yourself that the law does not put any restriction on the prosecution of Judges when there is proper evidence. There is a process to be followed for the prosecution of Judges at the higher level of Judiciary, and you should please follow that. Violation of Article 14 is undeniable evidence for you to initiate criminal proceedings and you should not be found wanting. There could be other issues as well in the judgment and I should be allowed to file addenda to this complaint later. My Aadhaar card is attached. I had earlier approached you with two Police complaints dated 17 December 2021 and 16 May 2022 against the Judges of the Supreme Court of India. Lastly, I cannot say without proof that this judgment, which stole my fundamental right under Article 14 of the Constitution of India, was written by the devil but I wonder if it could be written by anyone who is not truly the devil incarnate., Thereafter, the Contemnor sent another email dated 29 August 2023 to the Station House Officer, Tilak Marg Police Station as an addendum to the aforementioned complaint stating as under: \Dear SHO Tilak Marg Police Station: I wish to file another addendum. My Letters Patent Appeals are now listed as 611, 612, 613 of 2023 on 31 August 2023 before the Division Bench in Court #1. On 28 August 2023, I went to the Tilak Marg Police Station to give a copy of the Letters Patent Appeals as I had promised. I gave a copy of this complaint as well as a soft copy of the Letters Patent Appeals to the Reader. Very surprisingly, I was told by the Reader that they may not have received a copy of this complaint from delpol.service@delhipolice.gov.in where I had sent the complaint to. Isn't this extremely strange? There is another matter now. The applications accompanying the Letters Patent Appeals were Criminal Miscellaneous Applications under Code of Criminal Procedure section 482. But they have been listed as CM, implying Civil Miscellaneous as Criminal Miscellaneous is denoted by Crl. M.A. in the same listing document, which is the 'Cause List of Sitting of Benches for 31.08.2023' provided at https://delhihighcourt.nic.in/uploads/causelists/160327282664ede499eaffe.pdf, which is also attached. I am afraid the criminal situations addressed in my petitions are so big that I cannot take any chances and am filing this Police complaint against this dilution of a criminal matter into a civil matter. Even if it turns out that this is a clerical error, I am still well within my rights to file a Police complaint under Indian Penal Code sections 166A(b), 167, and 218, where intent is implied in the error and injury within the meaning of Indian Penal Code section 167 is to those who are affected by the crimes against which the petitions are filed. Furthermore, I was asked to give an undertaking yesterday because I refused to do service to the Civil Counsel of Delhi Police insisting that this is a criminal matter and I have already served the Criminal Counsel of Delhi Police. A copy of these undertakings is attached for each Letters Patent Appeal. I propose to provide a copy of this Police complaint to the Court on 31 August 2023. All my three petitions deal with aspects of mob attacks on this country or, in one case concerning Delhi Police, me, and these attacks are in the mode of committing crime upon crime and it is for the legal system to judge if this is done to make the prosecution difficult. I say without any imputation that this complaint provides two instances namely one concerning thief Justice Sharma and second concerning the aforesaid error where among the highest institutions of Judiciary namely Delhi High Court in the National Capital is involved in making the criminal situation more complicated by committing crime upon crime., It is relevant to mention that the Contemnor in the complaint dated 29 August 2023 via email has specifically mentioned that the three petitions deal with the aspects of mob attacks on this country, Delhi Police and him and it is for the legal system to judge if this is done to make the prosecution difficult. He said without any imputation that his complaint provides the instances, one, concerning thief Justice Sharma of this Court and secondly, concerning the aforesaid error where among the highest institutions of judiciary, namely Delhi High Court in the National Capital is involved in making the criminal situation more complicated by committing crime upon crime., The Contemnor has sought criminal action against the learned Single Judge by stating that Article 14 of the Constitution of India does not allow mixing unrelated things, and so the Single Bench should be criminally charged. The Contemnor has also raised derogatory allegations against the Supreme Court of India and even emphasises punishment of death penalty., After perusing the judgment dated 20 July 2023, the order dated 31 August 2023, the contents of the Letters Patent Appeals and two complaints made to the Station House Officer via email, this Honourable Court is highly shocked to note the averments made by the Contemnor. The Contemnor who claims to have been educated in engineering and science from one of the most reputed educational institutions of India i.e. Indian Institute of Technology, Kanpur, Bombay and in the United States, is expected to respect the Constitution of India and have faith in the legal system of law. As a responsible citizen of the country, the Contemnor is expected to set forth his grievances in a civilized manner, maintaining the dignity of the Court and judicial process of law. Even if it is taken that the Contemnor due to outrage preferred the writ petitions, but despite issuance of Show Cause Notice, he without pleading guilty, filed a highly disrespectful reply thereto, which explicitly shows that he has no guilt to his actions. Rather, the Contemnor has stated that he has no remorse to whatever he did and he stands by the same. The Contemnor has used utter derogatory language for the learned Single Bench to the extent of saying that the learned Single Judge is a thief and he has full proof of the same., Today, the Contemnor is present in the Delhi High Court and this Court has extensively heard him for a substantial time., Learned Central Government Standing Counsel appearing on behalf of respondent – Union of India submits that since the Contemnor is present in the Court, he should be directed to tender unconditional apology for his conduct and allegations. On the other hand, the Contemnor has submitted that he stands by whatever allegations he has made, either against the learned Single Bench or against the officers of the Government of India and the judiciary., Having considered the material placed on record, submissions of the Contemnor and the counsel opposite, this Court is of the opinion that the Contemnor has no repentance for his conduct and actions., Accordingly, we hereby hold the Contemnor guilty of the Contempt of Courts Act, 1971 and consequently, we sentence him to undergo simple imprisonment for a period of six months with fine of Rs.2,000 and in default of payment of fine, he shall undergo simple imprisonment of seven days. The Contemnor is directed to be taken into custody by HC Vinod (Naib Judge), who shall hand over his custody to the Tihar Jail, Delhi today itself., Registry is directed to prepare arrest warrants and committal warrants against the Contemnor forthwith., Copy of this order be provided to the Contemnor and HC Vinod dasti under the signatures of Court Master., At this stage, the Contemnor has requested this Court to allow him to go to the hotel, i.e., Minimalist Hotel, Hauz Khas Village, Delhi. We accept his request and direct the Station House Officer, Tilak Marg Police Station, Delhi to take him to the aforesaid hotel where he is staying and allow him to check out and thereafter he will be taken to the Tihar Jail as mentioned above., With directions as aforesaid, these petitions are accordingly disposed of.
id_906	0	Only a woman knows how acutely difficult it is to balance motherhood and her career. Life as a new mother is like being on a roller‑coaster and being a working mother is tougher. The minutiae of motherhood can never be properly contemplated and it involves navigation through myriad daily issues, which ultimately determine the health and future of the child. The mother’s constant proximity to the child is scientifically proven to be absolutely indispensable and, inter alia, this is why the provisions for maternity leave are now internationally accepted., I begin exordially because the petitioner in this case has reached the Kerala High Court after her request for maternity leave was turned down; and, to exacerbate the agony, she was terminated from service, being accused of having been on unauthorised absence., The petitioner states that she was forced to work on contract as a Counsellor in the Office of the Third Respondent – District Child Protection Officer, awaiting better opportunities. She was initially selected for a one‑year spell after a selection process and appointed on contract from 16 December 2016 to 21 August 2017, which was subsequently extended for one year at a time until 21 August 2020. Following a fresh selection process, she was appointed again from 23 August 2020 to 17 January 2021 on a daily‑wage basis, during which she gave birth to her child on 28 November 2020, constraining her to avail maternity leave from 26 November 2020 to 17 January 2021., She alleges that her earlier request for leave had not been acceded to and that, in the next selection process, she again topped the list and was directed to join as Counsellor on 18 January 2021. Since her child was only 51 days old and doctors had advised her to breastfeed regularly, she sought leave from 19 January 2021 to 26 March 2021 through Extension P7 dated 19 January 2021., The petitioner submits that this request was recommended by the Third Respondent – District Child Protection Officer, vide Extensions P8 and P9, but the Second Respondent, Director, Women and Child Development Department, rejected it through Extension P10 on 23 March 2021, a mere three days before the requested leave period expired, without assigning any cogent reason., Appalled by receiving Extension P10, she approached the Third Respondent through Extension P11. Nevertheless, Extension P12 was abruptly issued by the Second Respondent, Director, terminating her services on the allegation that she was on unauthorised absence from 19 January 2021 to 23 March 2021, and directing the Third Respondent to appoint the next rank holder from the selection list, threatening disciplinary action for not considering that the petitioner had delivered a child shortly before being offered employment., The petitioner vehemently alleges that Extension P12 was issued thoughtlessly and with an insensitive tenor, thus being illegal, and prays that Extensions P10 and P12 be set aside, with an additional prayer that she be immediately reinstated in service with all eligible benefits., I have heard Sri B. Mohanlal, learned counsel appearing for the petitioner, and Sri Sunil Kumar Kuriakose, learned Government Pleader appearing on behalf of the official respondents. The learned Government Pleader argued in defence of the impugned orders, submitting that the petitioner was not entitled to seek maternity leave one day after she joined service on contract and relied on Note 4 to Rule 100 of Part I of the Kerala Services Rules. He cited the decision of a learned Division Bench of this Court in Jisha P. Jayan v. Sree Sankaracharya University of Sanskrit, Kalady and Others [2013(3) KLT 533], stating that only a contract employee who has been in service for at least one year is entitled to maternity leave, and contended that the authorities were justified in issuing Extensions P10 and P12 terminating her service. He further asserted that no employee can ask for leave as a matter of right and then refuse to discharge duties, accusing the petitioner of submitting a leave application a day after joining on 18 January 2021 and unilaterally withdrawing from duties from 19 January 2021, and prayed that the writ petition be dismissed., The foregoing contentions of the learned Government Pleader, even after deep and careful scrutiny, do not obtain my approval for various reasons, as I will presently record. The unopposed facts render it apodictic that the petitioner had been working as a Counsellor on contract since 16 December 2016, with only a day or two break each time her contract was extended annually. It is also undisputed that she was engaged on a daily‑wage basis between 23 August 2020 and 17 January 2021. Accordingly, by the rigour of Note 4 to Rule 100 of Part I of the Kerala Services Rules, a woman employee on provisional service would be entitled to maternity leave, provided she continued beyond one year and would have continued in service but for proceeding on such leave. In this case, there can be little doubt that the petitioner was serving the Third Respondent as a Counsellor on contract for several years, albeit with brief breaks., Axiomatically, the competent authorities had a duty to verify whether, in such circumstances, the petitioner was entitled to the benefit of maternity leave, but shockingly, instead of doing so, the Second Respondent held prosaically that the petitioner’s request could not be acceded to and, as if to add insult to injury, declared her absence between 19 January 2021 and 23 March 2021 unauthorised, ordering termination of her contract employment. This stance reflects insensitivity, as it is undisputed that the petitioner gave birth on 28 November 2020 and was under medical advice to nurse her child, who was only 50 days old on 18 January 2021 when she accepted the latest contract., That said, a corollary query can be posed whether she was entitled to seek maternity leave when she worked on a daily‑wage basis between 23 August 2020 and 17 January 2021. As per her request, the petitioner’s first spell for leave was between 26 November 2020 and 17 January 2021; the second spell was from 19 January 2021 to 26 March 2021. Even if it is taken that she was not entitled to leave while engaged on daily wages, I fail to understand how the Second Respondent could, without any effective evaluation, conclude that she would not obtain the benefit of Rule 100 of Part I of the Kerala Services Rules solely because she was working on a contract, and thereby direct termination of her employment forthwith., Furthermore, Extension P10 shows that the Second Respondent acted on incorrect factual assumptions by recording that there was no valid contract entered into with the petitioner and therefore she was not entitled to claim or avail maternity leave. This understanding is in error because it is undisputed that the petitioner was offered a contract on 18 January 2021 and was engaged on its terms on 19 January 2021 when she applied for maternity leave through Extension P7 until 26 March 2021., Apodictically, Extension P10 can only be construed to have been issued without the necessary application of mind, and the same vice is carried on in Extension P12, wherein the Second Respondent holds the petitioner guilty of unauthorised absence without conducting any enquiry and orders that her contract be terminated to appoint the next rank holder in the selection list. Moreover, in Extension P12 the Second Respondent even threatened action against the Third Respondent for having selected and appointed the petitioner ‘without proper care’, insinuating that he ought not to have offered employment to her because she had recently delivered and required leave to care for her child. Such an attitude is not one which the Kerala High Court can countenance in this century, when women essay several roles, take on varied responsibilities and must be adept multitaskers to survive and achieve their legitimate ambitions. It is my hope that the endeavors of such industrious women ought to obtain unstinted support and encouragement, but the orders impugned in this writ petition can only serve to undermine the confidence and morale of persons like the petitioner, who bravely face the challenges of life every day with steely resolve to balance personal and official life. Consequently, I find the petitioner’s request for leave from 19 January 2021, namely Extension P7, should be reconsidered by the competent authorities. The learned Government Pleader submitted that, owing to various interim orders, the petitioner has not been substituted and the post remains vacant, and offered that if the petitioner is willing to join, she may be allowed to do so provided she does not claim monetary benefits for the period when she did not work. While the offer to reinstate the petitioner is welcome, whether she is entitled to be paid for the period she was kept out of service as a result of Extensions P10 and P12 is not something I can affirm at this stage; that determination is for the authorities when her leave application is considered. In the aforesaid circumstances, I allow this writ petition and set aside Extensions P10 and P12 and the consequential Extension P13 order, directing the respondents to reinstate the petitioner in service forthwith as offered by them, and directing the competent respondents, namely the Second and Third Respondents, to reconsider the petitioner’s Extension P7 application for leave after affording her an opportunity of being heard either physically or through video conferencing, and to pass an appropriate order as expeditiously as possible, but not later than two weeks from the date of receipt of a copy of this judgment. The authorities will also consider how her period of service from 23 March 2021 should be regularised, and the resulting order will contain specific provisions regarding the same.
id_907	0	S.B. Criminal Writ Petition No. 565/2022 Shashikant Joshi son of Late Shri Sukhdev Prasad, aged about 38 years, resident of E-249, Shastri Nagar Vistar, Ajmer, Rajasthan. Petitioner versus State of Rajasthan, through its Chief Secretary, Jaipur; Secretary, Department of Home, Government of Rajasthan, Jaipur; Director General, Anti Corruption Bureau, Jaipur, Rajasthan; Rajesh Kumar Rao, Inspector, Anti Corruption Bureau, Jaipur, Rajasthan; Nodal Officer, Airtel, Rajasthan, Bharti Hexacom Limited K-21 Sunny House, Malviya Marg, C‑Scheme, Jaipur 302001, Rajasthan; Nodal Officer, Reliance Jio, Rajasthan, Jaipur. Respondents for petitioner: Mr. Swadeep Singh Hora, Mr. Mohit Khandelwal, Mr. T.C. Sharma, Mr. Vishivas Saini. Respondents for respondents: Mr. Atul Sharma, Deputy General Attorney. Judgment reserved on 18 May 2023 and pronounced on 4 July 2023., The petitioner has sought quashment of orders dated 28 October 2020, 28 December 2020 and 17 March 2021 passed by the Secretary (Home), Government of Rajasthan permitting interception of mobile phones of the petitioner and others in purported exercise of power under Section 5(2) of the Indian Telegraph Act, 1885., The challenge is on the ground that the right to privacy has been infringed by putting the mobile phones of the petitioner and others under surveillance by the State machinery. The orders are violative of Articles 19 and 21 of the Constitution of India unless they are consistent with the procedure established by law. In the present case, no reason for making such orders is disclosed, contrary to the procedural requirement., On the basis of information gathered from the interception of mobile calls, FIR No. 20 of 2021 was registered on 12 April 2021 under Sections 7 and 8 of the Prevention of Corruption Act as well as Sections 201 and 120B of the Indian Penal Code with the Anti Corruption Bureau Police Station, Jaipur. After investigation, charge‑sheet No. 140/2021 dated 4 May 2021 was filed. A bare perusal of the call details disclosed in the FIR shows that there is no direct evidence against the petitioner of bribing any public servant and no money was recovered from the possession of any of the accused persons including the petitioner., Before considering the rival contentions of the parties, it is apt to go through the provisions of Section 5(2) of the Indian Telegraph Act and the nature of the orders passed by the Secretary (Home). Section 5(2) provides that on the occurrence of any public emergency, or in the interest of public safety, the Central Government or a State Government or any officer specially authorised may, if satisfied that it is necessary or expedient, direct that any message or class of messages to or from any person or class of persons shall be intercepted, detained or disclosed to the Government making the order, for reasons to be recorded in writing., The order dated 28 October 2020 reads: Government of Rajasthan, Home (Group‑9) Department, Home‑9/2019, Jaipur, dated 28 October 2020. Whereas it has been brought to the notice of the Director General, Anti Corruption Bureau, Rajasthan, Jaipur that mobile/IMEI No. 98291‑72463 is possibly being used for illegal activities relating to incitement to the commission of an offence affecting public safety and it is necessary and expedient to prevent such a situation by keeping the mobile number under observation for a period of 60 days. The Secretary, Home, Rajasthan, being satisfied that in the interest of public safety and preventing incitement to the commission of an offence it is necessary to keep the mobile number under observation, directs that any telephone message relating to clandestine contact, movement or activity shall be intercepted and disclosed to the officer intimated by the Director General, Anti Corruption Bureau, Rajasthan, Jaipur. The order shall remain in force for 60 days unless revoked earlier or extended further, and the use of intercepted messages shall be subject to the provisions of Section 5(2) of the Indian Telegraph Act, 1885 and Section 69 of the Information Technology Act. The conditions prescribed in Home Department Circular No. F.22(2) Home‑9/87 dated 09 June 2016 shall be followed strictly for ensuring confidentiality and privacy of intercepted information., The order dated 28 December 2020, addressed to the Nodal Officer, Airtel, Rajasthan, Jaipur, authorises observation of suspect mobile number 98291‑72463 for a period of 60 days. It directs that voice, video, GPRS and data calls of the home circle as well as PAN India circles while roaming, and call‑related data, be diverted to numbers 0141‑2712234 and 94135‑02710 for interception., The order dated 17 March 2021 reads: Government of Rajasthan, Home (Group‑9) Department, Home‑9/2019, Jaipur, dated 17 March 2021. Whereas it has been brought to the notice of the Director General, Anti Corruption Bureau, Rajasthan, Jaipur that mobile/IMEI No. 99508‑30107 is possibly being used for illegal activities relating to incitement to the commission of an offence affecting public safety and it is necessary and expedient to keep the mobile number under observation for a period of 60 days. The Secretary, Home, Rajasthan, being satisfied that in the interest of public safety it is necessary to keep the mobile number under observation, directs that any telephone message relating to clandestine contact, movement or activity shall be intercepted and disclosed to the officer intimated by the Director General, Anti Corruption Bureau, Rajasthan, Jaipur. The order shall remain in force for 60 days unless revoked earlier or extended further, and the use of intercepted messages shall be subject to the provisions of Section 5(2) of the Indian Telegraph Act, 1885 and Section 69 of the Information Technology Act. The conditions prescribed in Home Department Circular No. F.22(2) Home‑9/87 dated 09 June 2016 shall be followed strictly for ensuring confidentiality and privacy of intercepted information., Mr. S.S. Hora, learned counsel for the petitioner, contends that in People’s Union for Civil Liberties (PUCL) v. Union of India & Anr, reported in (1997) 1 SCC 301, the Honorable Supreme Court considered the provisions of Section 5(2) of the Indian Telegraph Act and held that the conditions of public emergency or the interest of public safety are not secretive; they would be apparent to a reasonable person. In the present case, none of the impugned orders disclose the situations that persuaded the authority to record that public safety required such an order. A mere statement of public safety is insufficient; the authority must record reasons in writing before permitting interception of call details., Learned counsel for the respondents argues that there is no need for verbatim compliance with the mandate of law if substantial compliance has been achieved. The authorities placed before the Secretary (Home) a written request for permission stating that the user of the referred mobiles is suspected to be involved in corrupt practices under the Prevention of Corruption Act., A bare perusal of the impugned orders indicates that no circumstance has been disclosed ventilating the objective satisfaction that the orders were necessary for public safety. In the absence of such material, no prudent person can conclude that the orders were in the interest of public safety. Moreover, no reason has been recorded in writing as required by Section 5(2) of the Indian Telegraph Act., In PUCL (supra), the Honorable Supreme Court stated that Section 5(2) permits interception only when there is an occurrence of any public emergency or an interest of public safety, which are not secretive conditions. Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said section. The expression \public safety\ means the state or condition of freedom from danger or risk for the people at large. When neither condition exists, the Central Government, State Government or an authorised officer cannot resort to telephone tapping even if they are satisfied that it is necessary or expedient in the interest of sovereignty, integrity, security, friendly relations, public order or preventing incitement to an offence., The first step under Section 5(2) is the occurrence of a public emergency or the existence of a public‑safety interest. Thereafter the competent authority may pass an order of interception after recording its satisfaction that it is necessary or expedient in the interest of (i) sovereignty and integrity of India, (ii) security of the State, (iii) friendly relations with foreign States, (iv) public order or (v) preventing incitement to the commission of an offence. The authority must record reasons in writing for doing so., The analysis of Section 5(2) shows that the power to intercept messages is subject to procedural backing so that the exercise of power is fair and reasonable. The procedure must be just, fair and reasonable. This principle was settled by this Court in Maneka Gandhi v. Union of India, where it was held that any procedure dealing with the modalities of regulating, restricting or rejecting a fundamental right falling within Article 21 must be fair, not arbitrary, and must not subvert the substantive right itself., The proposition that illegal tapping of telephone conversations violates the right to privacy has been accepted by a nine‑judge Constitution Bench in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. The Court observed that telephone conversations are an important ingredient of privacy and that tapping such conversations infringes Article 21 unless permitted by a procedure established by law., In pursuance of directions in PUCL (supra), rules were amended to provide procedural safeguards for protection of the right to privacy. Accordingly, Rule 419A was enacted by the Telegraph Amendment Rules, 2007 in the Indian Telegraph Rules, 1951. The impugned orders disclose that the authority concerned has not disclosed the material for its conclusion that it was in the interest of public safety to pass such orders. The authorities have failed to record any reason in writing consistent with the requirement of Section 5(2). Consequently, the impugned orders suffer from arbitrariness and violate the constitutional rights of the petitioner., Learned counsel for the petitioner further contends that the respondent authorities have acted in violation of the procedural safeguards under Rule 419A. Mr. N.L. Meena, the Secretary (Home), was not a competent person to pass an order under the Act; the competent authority is the Principal Secretary, Home. Mr. Meena and two other Secretaries were working under the Principal Secretary, Home. The order should have been transmitted to the duly constituted Review Committee for its approval, which has not been done in this case., Rule 419A of the Indian Telegraph Amendment Rules, 2007 provides that directions for interception under Section 5(2) shall be issued only by an order made by the Secretary to the Government of India in the Ministry of Home Affairs or by the Secretary to the State Government in charge of the Home Department. In unavoidable circumstances, an officer not below the rank of Joint Secretary may issue the order, provided that prior approval is obtained from the Head or the second senior most officer of the authorized security agency and that the competent authority is informed within three working days and confirms the interception within seven working days. Any order issued must contain reasons for the direction and a copy must be forwarded to the Review Committee within seven working days., As per Rule 419A(1), only the Secretary to the State Government in charge of the Home Department was competent to pass the impugned orders. The petitioner stated on oath that at the relevant time, Mr. Abhay Kumar was Secretary in charge of the Home Department, and the other Secretaries, including Mr. N.L. Meena who passed the impugned orders, were not in charge and therefore not competent to pass the orders. Executive instructions cannot supersede statutory rules; consequently, the impugned orders are not sustainable for being authored by an incompetent person., The impugned orders were never sent to the Review Committee, which ought to have been done within the statutory period, and the Review Committee did not take a decision on the validity of the orders within the prescribed time. The respondents have not contested that the orders were not sent to the Review Committee nor have they produced any material to suggest otherwise., The impugned orders do not contain any reason, whereas the statutory provisions require a reason to be recorded in writing to conclude that the interest of public safety persuaded the authority to pass the orders., Sub‑rule (3) of Rule 419A requires that the authority consider the possibility of acquiring the necessary information by other means and issue the direction only when it is not possible to acquire the information by any other reasonable means. The impugned orders merely state that acquisition of information is not possible by any other means without disclosing any attempt to use alternative methods. Hence, the statutory requirement of Sub‑rule (3) has not been complied with., When the statute provides procedural safeguards to prevent arbitrary infringement of the right to privacy, those safeguards must be strictly followed. Ignoring the mandates of the Supreme Court in PUCL and Puttaswamy cases, as well as the provisions of the Act and Rules, would lead to contempt and arbitrariness, violating Articles 19 and 21 of the Constitution of India., Learned counsel for the respondents relied on the judgment in Santosh Kumar v. Union of India & Anr., Writ Petition (Criminal) No. 1147/2020 of the Delhi High Court. That case is distinguishable because the impugned orders were passed by a competent authority and were sent to the Review Committee, whereas in the present case both requirements are lacking., In view of the foregoing discussion, the impugned interception orders suffer from manifest arbitrariness and, if allowed to stand, would violate the fundamental rights of the citizens and the law laid down by the Supreme Court. Accordingly, all three interception orders are hereby quashed. The respondent authorities are directed to destroy the intercepted messages, recordings and their copies. Such messages shall not be considered in the pending criminal proceedings at any stage. The petitioner is at liberty to adopt any available legal remedy for other reliefs sought in the writ petition., With the aforesaid observations, the writ petition is hereby allowed. No order on costs is made in the facts and circumstances of the case.
id_908	0	Accused No. 11 in Special Criminal Case No. 872/2018 pending before the Bengaluru City Civil and Sessions Court, arising out of Crime No. 221/2017 registered by Rajarajeshwari Nagar Police Station, Bengaluru, for offences punishable under Sections 302, 120B, 118, 203, 35 of the Indian Penal Code, Sections 25(1) and 27(1) of the Indian Arms Act, 1959, and Sections 3(1)(i), 3(2), 3(3) and 3(4) of the Karnataka Control of Organized Crimes Act, 2000, is before the Bengaluru City Civil and Sessions Court in this successive bail petition filed under Section 439 of the Criminal Procedure Code., Heard the learned counsel for the parties., Based on the complaint filed by CW‑1, the Station House Officer of Rajarajeshwari Nagar Police Station, Bengaluru, an FIR was registered in Crime No. 221/2017 against unknown persons for offences punishable under Section 302 of the Indian Penal Code and Section 25 of the Arms Act., Complainant Kavitha Lankesh, CW‑1, averred that her sister, the deceased Gouri Lankesh, was a journalist and progressive thinker residing alone in a house at Rajarajeshwari Nagar. She often visited Gouri’s house to meet her mother Indira Lankesh. A week prior to the complaint, Gouri informed her that someone was moving around her house in a suspicious manner. On 05 September 2017 at about 2.00 p.m., the complainant went to Gouri’s office at Gandhi Bazaar and met her. At about 8.26 p.m. on the same day, while the complainant and her mother were at home, a telephone call informed them that something had happened to Gouri in her house. The complainant went to Gouri’s house and saw her car bearing registration No. KA‑05‑MR‑3782 parked in front of a partially open gate. She found her sister lying in a pool of blood with cartridge pieces nearby, indicating a shooting. She approached the police at about 10.00 p.m. on 05 September 2017 and lodged a complaint, resulting in the registration of FIR No. 221/2017 against unknown persons., During the investigation, some accused persons were arrested and on 29 May 2018 a charge sheet was filed for offences punishable under Sections 302, 114, 118, 120B, 35 of the Indian Penal Code and Sections 3 and 25 of the Arms Act, and further investigation under Section 178 of the Criminal Procedure Code was continued., The petitioner was arrested on 18 July 2018 and his voluntary statement was recorded. On 14 August 2018, approval was granted for invoking the provisions of the Karnataka Control of Organized Crimes Act against the accused persons in Crime No. 221/2017. An additional charge sheet was filed on 23 November 2018, wherein the petitioner was listed as Accused No. 11. Subsequently, on 25 June 2020 a second additional charge sheet was filed by the Special Investigation Team, Bengaluru, citing additional witnesses and documents., The petitioner filed a bail application before the Special Court, which was dismissed on 25 October 2018. He then approached the Bengaluru City Civil and Sessions Court in Criminal Petition No. 8325/2018, which was dismissed by a coordinate bench on 11 February 2019. He subsequently filed an application seeking statutory bail under Section 167(2) of the Criminal Procedure Code, and the Special Court dismissed it on 7 February 2019. He then approached this Court in Criminal Appeal No. 505/2019, and the coordinate bench dismissed the appeal on 13 July 2021. Again, he filed a bail application before the Special Court citing inordinate delay in trial, which was dismissed on 6 July 2023. Consequently, the petitioner is before this Court in the present petition., Learned counsel for the petitioner submits that the petitioner has been in custody for more than five years. Of the 527 charge‑sheet witnesses, only 90 have been examined to date, and there is no prospect of the trial being completed in the immediate future. The allegation is that the petitioner conspired with other accused persons to murder Gouri Lankesh. The material on record would show that the petitioner was not a party to the alleged conspiracy and was not present at meetings held by the other accused. The confession statements of the accused were recorded in violation of the requirements of the Karnataka Control of Organized Crimes Act and are therefore inadmissible. The Hon’ble Supreme Court in Kavitha Lankesh v. State of Karnataka (2022) 12 SCC 753 observed that Section 3(1) of the Karnataka Control of Organized Crimes Act would not be applicable to the petitioner. Likewise, offences under Sections 3(2) and 3(3) would not be applicable as there is no material evidence against him except the voluntary statements. He further relies on the judgments of the Hon’ble Supreme Court in Union of India v. K. A. Najeeb (2021) 3 SCC 713 and Mohd. Muslim alias Hussain v. State (NCT of Delhi) 2023 SCC OnLine SC 352., The Special Public Prosecutor appearing for the respondent opposes the petition, stating that the earlier bail petition has already been dismissed and there is no change in circumstances or law. The voluntary statements of the petitioner and other accused were recorded prior to invoking the Karnataka Control of Organized Crimes Act, and therefore Section 19 of that Act is not complied with. Although 527 witnesses are listed, the prosecution does not intend to examine all of them. The delay in trial is attributed to repeated applications by the accused, not to the prosecution. Of the twenty‑three charge‑sheet witnesses who have spoken about the petitioner’s role, only one has been examined before the Trial Court. The accused persons are alleged to have murdered several other journalists and intellectuals. If the petitioner is released on bail, there is a threat to society and a risk of tampering with witnesses. Accused Nos. 2 and 3, who shot Gouri Lankesh, were allegedly harboured by the petitioner in a rented premises at Ramanagara. The prosecution asserts that there is sufficient material to show that the petitioner is a member of a syndicate involved in organized crime. Despite the Trial Court’s heavy workload, it has been allocating one week each month for this trial and most material witnesses have been examined, allowing the trial to be concluded within one year. Accordingly, the prosecution prays for dismissal of the petition., According to the prosecution, the allegation is that the petitioner conspired with other accused persons to murder Gouri Lankesh and, in furtherance of that conspiracy, he rented a house at Ramanagara and gave shelter to Accused Nos. 2 and 3, the actual assailants. To establish the petitioner’s role, the prosecution has recorded statements of twenty‑three witnesses under Section 161 of the Criminal Procedure Code, including CW‑225 (Sardar Basha, owner of the house at Kumbalagodu who let the house to the petitioner in August 2017), CW‑226 (Salma, who also testified about the letting), CW‑227 (Salman Pasha, who spoke about advance rent), CW‑376 (neighbour who identified the petitioner), CW‑215 (Archana, who received acupuncture treatment at the petitioner’s house), CW‑216 (Madetira Timmaiah, introduced to the petitioner by Accused No. 8 in 2013), CW‑306 (Balagangadhara, who let a room to CW‑216), CW‑206 and CW‑207 (Rajendra Kumar and Lokesh, panch witnesses for recovery of articles), CW‑208 and CW‑209 (Balasubramani and Manju, who testified that the petitioner facilitated other accused to keep articles in his rented house at Tagachaguppe), CW‑210 (Shivakumar, who testified that the petitioner took a house on rent from CW‑225 at Tagachaguppe), CW‑211 and CW‑212 (Sunil and Kumar, who spoke about conspiracy and handing over a SIM card to the petitioner), CW‑213 (Bheemanagowda, who drew portraits of persons involved in the murder), CW‑237 and CW‑238 (Raghuveer and Ravi Kanth, who testified about air‑pistol training), CW‑315 (Shivananda Prabhu, who testified that the petitioner and Accused Nos. 1, 5 and 8 searched for a house in the outskirts of Bengaluru in the last week of May 2017), CW‑504 (Mohan, who testified that the petitioner travelled in his nano car pretending to open a clinic at Tagachaguppe), CW‑506 and CW‑507 (Kumudaksha and Yathishmogra, who spoke about the petitioner’s friendship for inspiring them), CW‑508 (Chandrashekar K.P., who testified that ten SIM cards were given to the petitioner), CW‑509 (Dharmapala, who introduced witnesses 504‑507 to Accused No. 8 and the petitioner), CW‑127 (J. C. Raju, who apprehended the petitioner and produced him before the Investigation Officer), and CW‑128 (Prashanth Babu, who submitted a technical report on mobile number inter‑connections involving the petitioner)., The coordinate bench of the Bengaluru City Civil and Sessions Court considered the bail application of the petitioner in Criminal Petition No. 8325/2018 after the charge sheet was filed and observed: “From the above proposition of law, on close scrutiny of papers made available, the present factual matrix as discussed above is tested with the touchstone of the principle laid down by the Hon’ble Apex Court. Prima facie it satisfies the above‑said test and thereby it can safely be held that the petitioner is a member of the conspiracy, no doubt that is a matter which has to be considered and appreciated at the time of trial. But at this juncture, to consider the bail application, prima facie, there is sufficient material as against the petitioner. In that light, the said contention is also not acceptable and the same is rejected. For myriad reasons aforesaid, this Court is of the considered view that the contentions raised by the learned counsel for the petitioner are not acceptable so as to release the petitioner on bail and as such the petition is liable to be dismissed. Accordingly, the petition stands dismissed. Since the petitioner is in custody for a long time, the trial Court is directed to expedite the trial.”, Although this Court, while disposing of Criminal Petition No. 8325/2018 on 11 February 2019, directed the Trial Court to expedite the trial, the petitioner alleges that to date there has been no sufficient progress and there is no likelihood of the trial being completed in the near future., The prosecution has cited 527 charge‑sheet witnesses, of which only 90 (PW‑1 to PW‑90) have been examined. The Hon’ble Supreme Court in Angela Harish Sontakke v. State of Maharashtra (2021) 3 SCC 723, dealing with offences under the Unlawful Activities (Prevention) Act, 1967, granted bail to accused who had suffered five years of incarceration despite the stringent provisions of Section 43‑D(5)., In Sagar Tatyaram Gorkhe v. State of Maharashtra (2021) 3 SCC 725, the Supreme Court enlarged bail for an accused who had been in jail for four years with 147 witnesses still to be examined., In K. A. Najeeb’s case, the Supreme Court noted that when accused have been in jail for more than five years and a large number of witnesses remain unexamined, the Court may refuse to interfere with a High Court’s order granting bail on the ground of trial delay and prolonged incarceration. The Court emphasized that Part III of the Constitution guarantees the right to a speedy trial and that statutory restrictions should not bar bail where a timely trial is unlikely., In Mohd. Muslim alias Hussain’s case, the Supreme Court, while considering the stringent provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, observed that undue delay in trial cannot be fettered by that section and highlighted the humanitarian concerns of prolonged pre‑trial detention., In the present case, out of 527 charge‑sheet witnesses only 90 have been examined. Although charges were framed on 30 October 2021, for more than two years only these 90 witnesses have been examined, leaving over 400 witnesses unexamined. Even assuming that not all cited witnesses will be examined, the pace suggests that the trial is unlikely to be completed soon., The petitioner, alleged to have conspired in the murder of Gouri Lankesh, has been in custody since 18 July 2018. Although alleged to be a member of an organized‑crime syndicate, the material on record shows that he is not named as a co‑accused in any other cases registered against the other accused persons for organized crimes., The Supreme Court in Kavitha Lankesh’s case observed that the material collected by the investigating agency was insufficient to invoke Section 3(1) of the Karnataka Control of Organized Crimes Act against the petitioner. The Court explained that for offences under Sections 3(2), 3(3), 3(4) or 3(5), prosecution may proceed without prior offences, provided there is material indicating the person’s membership in an organized‑crime syndicate and nexus with the accused., The petitioner’s earlier bail petition in Criminal Petition No. 8325/2018 was disposed of after the charge sheet was filed under Sections 3(1), 3(2), 3(3) and 3(4) of the Karnataka Control of Organized Crimes Act. The Supreme Court later observed that there is no sufficient material at this stage to invoke Section 3(1). The punishment for Section 3(1) is life imprisonment or death, whereas Sections 3(2) to 3(4) carry a minimum imprisonment of five years, which may extend to life. The presumption under Section 23 of the Act does not apply as the prosecution has not shown that the petitioner provided financial assistance to the other accused., A perusal of the statements recorded under Section 161 of the Criminal Procedure Code of the twenty‑three charge‑sheet witnesses who spoke about the petitioner’s role shows that none stated that the petitioner participated in a meeting where the accused conspired to murder Gouri Lankesh. Most witnesses only mentioned that the petitioner rented a house at Kumbalagodu on the outskirts of Bengaluru., The confession statements of the accused were recorded prior to sanction for invoking the Karnataka Control of Organized Crimes Act; therefore Section 19 of that Act is not applicable. Moreover, the confessions were not recorded by a Superintendent of Police as required. Even if the petitioner were proved guilty of offences under Sections 3(2), 3(3) and 3(4), the minimum punishment is five years, and he has already been in custody for more than five years. While Section 22(4) of the Act imposes rigors for granting bail, it cannot prevent this Court from enlarging bail where there is undue delay in trial., Accordingly, the petition is allowed. The petitioner is directed to be enlarged on bail in Special Criminal Case No. 872/2018 pending before the Bengaluru City Civil and Sessions Court.
id_908	1	City Civil and Sessions Judge, Bengaluru, arising out of Crime Number 221/2017 registered by Rajarajeshwari Nagar Police Station, Bengaluru City, for the offences punishable under Sections 302, 120B, 118, 203, 35 of the Indian Penal Code, Sections 25(1) and 27(1) of the Indian Arms Act, 1959, and Sections 3(1)(i), 3(2), 3(3) and 3(4) of the Karnataka Control of Organized Crimes Act, 2000, subject to the following conditions: Petitioner shall execute personal bond for a sum of Rupees 1,00,000 with two sureties for the like sum, to the satisfaction of the jurisdictional Court. The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons. The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses. The petitioner shall not be involved in similar offences in the future. The petitioner shall not leave the jurisdiction of the Trial Court without permission of the Court until the case registered against him is disposed of., Signed, Judge K K.
id_909	0	CNR No. DLCT11-000003-2021, S.C. No. 01/2021, CIS No. 01/2021, First Information Report No. 84/2020, Police Station Adarsh Nagar, under Sections 3(i)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and the State versus Akhilesh Pati Tripathi, son of Shri Abhay Nandan Tripathi, resident of T-huts N-9C/129, Lal Bagh, Azadpur, Delhi 110033, also at C-3, CC Colony, Model Town, Delhi. Accused date of institution 29.04.2020, received by transfer on 06.01.2021, judgment reserved on 16.03.2023, judgment pronounced on 25.03.2023., The present First Information Report was registered on the basis of the complaint dated 10.02.2020 of Shri Sanjeev Kumar, who stated that he was a student. On 07.02.2020 at around 11:35 p.m., while he and his friend Raj Kishore were going home, the accused Akhilesh Pati Tripathi and his supporters stopped the complainant at Jhandewalan Chowk, Lal Bagh, took the key of his scooty and beat him badly. The accused said, \Chamar ko maro, iska baap bahut bada neta ban raha hai\ and \iss chamar ko iss ki aukat dekha do\. He used prohibited caste‑specific words to damage the image of the complainant and his parents, which is prohibited under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The complainant and his family called the police on the 100 number; when the police arrived, the accused fled. The accused and his supporters beat the complainant with heavy objects. The complainant was admitted to Hindu Rao Hospital immediately. The complainant belonged to the Scheduled Caste 'Chamar'. On the basis of the complaint, the First Information Report was registered under Sections 323, 341, 506, 34 of the Indian Penal Code and Sections 3(i)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act., After completion of investigation, a charge sheet was filed in the Court of the Learned Additional Sessions Judge, Central Delhi, Tis Hazari Court. The matter was received by transfer on 06.01.2021 by order of the Learned Principal District and Sessions Judge. Cognizance was taken vide order dated 04.07.2022. Documents were supplied to the accused under Section 207 of the Criminal Procedure Code. After hearing arguments, vide order dated 05.09.2022, charges were framed against the accused Akhilesh Pati Tripathi for offences under Sections 341, 323, 506(1) of the Indian Penal Code and Sections 3(i)(r) and 3(i)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The accused pleaded not guilty and claimed trial., Witness 1, Sub‑Inspector Hans Raj, deposed that on 01.03.2020 he was posted as Assistant Sub‑Inspector at Police Station Adarsh Nagar with duty hours from 4 p.m. to 12 midnight. A written complaint dated 10.02.2020 of Sanjeev Kumar was handed over to him by Sub‑Inspector Sudhir Kumar for registration of a First Information Report. On the basis of the complaint, he lodged First Information Report No. 84/2020, which is Exhibit PW1/A bearing his signature at point A. His endorsement on the complaint is Exhibit PW1/B. A certificate under Section 65B of the Indian Evidence Act is Exhibit PW1/C., Witness 2, Sub‑Inspector Avtar Krishan, deposed that on 08.02.2020 he was posted as Assistant Sub‑Inspector at Police Station Adarsh Nagar with duty hours from 12 a.m. to 8 a.m. A police control room call was received at about 12:39 a.m. about a quarrel and that someone had been stabbed. The entry was made and information was given to the Investigating Officer Sub‑Inspector Ravi Kumar. Dispatch Diary No. 2A was recorded, which is Exhibit PW2/A. At about 12:46 a.m. another call was received about AAP MLA Akhilesh Pati Tripathi beating the caller, recorded as Dispatch Diary No. 3A, Exhibit PW2/B. At about 2:38 a.m. another call was received from the control room about information from Vinayak Hospital that Akhilesh Pati Tripathi had been admitted, recorded as Dispatch Diary No. 5., Witness 3, HC Manoj Kumar, brought the record from the control room regarding the calls received on 08.02.2020. He stated that three calls were received: the first call from 12:11 a.m. to 12:13 a.m. about BJP workers stabbing an AAP candidate; the second call from 12:34 a.m. to 12:35 a.m. about AAP MLA Akhilesh Pati Tripathi beating the caller and using caste‑specific words; the third call from 1:52 a.m. to 1:56 a.m. about information from Vinayak Hospital that Akhilesh Pati Tripathi had been admitted. The record of the calls is Exhibit PW3/A (colly)., Witness 4, Mohd. Shami Khan, and Witness 6, Raj Kishore, are public witnesses; Witness 5, Sanjeev Kumar, is the complainant. Their testimonies will be adduced later., Witness 7, Shri Himanshu Aggarwal, deposed that on 07.02.2020 he was providing tents on contract for the Aam Aadmi Party. At around 9:30–10 p.m. he was setting up a tent and table at Jhandewalan Chowk. A boy informed him that there had been an attack on the accused Akhilesh Pati Tripathi. When the boy asked for his phone to call the police, the boy refused, and Himanshu made the call himself to the 100 number from his own number 9999707621., Witness 8, Shri Ashib, deposed that on 07.02.2020 his friend Sanjeev had taken his scooty bearing No. DL6SAM4665 in the morning and returned it after two days. The copy of the receipt (as ownership proof of the scooty) bearing his signature is Exhibit PW8/A (certified copy shown by the witness)., Witness 9, Shri Vinod Kumar, Bailiff, Office of Executive Magistrate, Model Town, Delhi, identified the signatures of Shri Shyam Prakash, Executive Magistrate, Model Town, Delhi on the verification report in respect of the caste certificate issued to Sanjeev Kumar, son of Madhav Prasad, bearing certificate No. 9510108704 (Exhibit PW9/A). He produced the original issuing register from the Sub‑Divisional Magistrate, Model Town office, containing entry at serial No. 16379 regarding the caste certificate of Sanjeev Kumar. The certificate number at that serial number was written as SC/06/63/17072/3/7/09/951010870400 29610. The photocopy of the entry is Exhibit PW9/B (OSR). During cross‑examination, Witness 9 admitted he had no personal knowledge of the matter and his deposition was based on the record; he denied any tampering of the register., Witness 10, HC Devender, brought the complaint register for the year 2020. According to the register, the complaint dated 10.02.2020 made by Sanjeev Kumar was received in the police station vide entry No. 145. The copy of the register is Exhibit PW10/A (OSR). Thereafter, the complaint was sent to Assistant Commissioner of Police Jahangir Puri., Witness 11, Sub‑Inspector Mahender Pratap, deposed that on 21.03.2020 he was posted as Sub‑Inspector at Police Station Adarsh Nagar. Assistant Commissioner of Police Sanjay Drall came to the police station and, together with the Investigating Officer, went to the house of the complainant Sanjeev at C‑327, Lal Bagh, Azadpur, where the complainant met them. The Investigating Officer inspected the spot at Jhandewalan Chowk, Lal Bagh and prepared the site plan (Exhibit PW5/B). The other witness Mohd. Shami also came to the spot. The Investigating Officer made inquiries in the neighbourhood, recorded statements of Sanjeev and Mohd. Shami, and videographed the recordings. Their statements were recorded under Section 161 of the Criminal Procedure Code., Witness 12, Sub‑Inspector Ravi Kumar, deposed that on the night of 07/08‑02‑2020 he was posted as Sub‑Inspector at Police Station Adarsh Nagar and was on emergency duty from 8 p.m. to 8 a.m. Around 12:30 a.m. to 1:00 a.m., three calls were received: Dispatch Diary No. 2A about a quarrel and a stabbing; another call about MLA Akhilesh Pati Tripathi quarreling; and a third call about the injured being taken to Vinayak Hospital and Hindurao Hospital. He, together with Constable Sandeep, reached Jhandewalan Chowk, where the injured had been taken to Vinayak Hospital; the accused was found admitted but did not give a statement, was unconscious, and later was taken to Hindurao Hospital where the complainant Sanjeev Kumar was also admitted. The complainant stated he would give a written complaint later. The Sub‑Inspector lodged Dispatch Diary No. 14A (Exhibit PW12/A). The PCR calls were kept pending. On 10.02.2020 the complainant Sanjeev Kumar came to the police station and gave his written complaint (Exhibit PW5/A). The Sub‑Inspector marked the same to Sub‑Inspector Ravi Kumar with his endorsement (Exhibit PW16/A). He made an endorsement on the complaint on 01.03.2020 (Exhibit PW16/B) and got the First Information Report registered. The investigation was then marked to Assistant Commissioner of Police Jahangirpuri Sanjay Drall., Witness 13, Dr. Ankit Garg, Senior Resident, Department of Surgery, Hindurao Hospital, Delhi, deposed that on 08.02.2020 he was posted as Senior Resident, Department of Surgery. The complainant Sanjeev Kumar was examined by Dr. Krishna Chand under his supervision. The medical report on Medical Leave Certificate No. 641/2020 was prepared by Dr. Krishna Chand (Exhibit PW13/A). Dr. Garg identified Dr. Chand's signatures and stated that after examining the patient, the nature of injury was simple (point C). He further stated that Dr. Avdesh Bhati, Senior Resident, Orthopedic, also examined the case and gave an opinion that the injuries were simple (point D, signatures at point E on Exhibit PW13/A). Dr. Bhati had left the services of the hospital as per the report on the summons., Witness 14, Shri Kamal Kumar, deposed that he was working as Nodal Officer with Reliance Jio Infocomm Ltd. since December 2016. He received a notice to produce Call Account Forms along with Call Detail Records and Cell ID charts for the numbers 9999707621, 8840832821, 8383898699 for the period 07.02.2020 to 09.02.2020. The CAF and CDR for number 9999707621 (in the name of Himanshu Aggarwal) is Exhibit PW14/A (colly); for number 8840832821 (in the name of Shiv Shankar Pandey) is Exhibit PW14/B (colly); for number 8383898699 (in the name of Sanjeev Kumar) is Exhibit PW14/C (colly). The certificate under Section 65B of the Indian Evidence Act in support of the documents is Exhibit PW14/D. During cross‑examination, he stated that he had already filed the records before the Court and denied any suggestion of falsity., Witness 15, Assistant Commissioner of Police Sanjay Drall, deposed that on 08.02.2020 he was posted as Assistant Commissioner of Police, Jahangirpuri. On 10.02.2020 the present case was registered regarding a quarrel at Jhandewalan Chowk, Lal Bagh and investigation was received by him. He called the complainant Sanjeev Kumar to the police station, obtained the Medical Leave Certificates of the complainant and the accused, seized the complainant's caste certificate (Exhibit PW5/C) and verified it from the Sub‑Divisional Magistrate, Model Town (verification report Exhibit PW9/A). He obtained the PCR form (Exhibit PW3/A) and the final results of both medical examinations (request letters Exhibit PW15/A). The accused was later referred to Fortis, Shalimar Bagh; the request letter for the final result is also in the record. On 21.03.2020 the complainant and witness Mohd. Shami Khan met him at the spot and he prepared the site plan (Exhibit PW5/B). He obtained the CAF and CDR for Sanjeev Kumar and Akhilesh Pati Tripathi for the period 07.02.2020 to 09.02.2020; the CDRs of Bansidhar Tripathi, Om Singh and Shiv Shankar Pandey are Exhibit PW15/C (colly) and Exhibit PW14/B (colly). A notice under Section 41A of the Criminal Procedure Code was given to the accused (Exhibit PW15/D). The conviction slip was prepared, previous records of the accused were collected, and the charge sheet was filed without arrest, followed by a supplementary charge sheet. Recordings of witness statements were videographed (Pen Drive Exhibit P‑1)., Witness 16, Inspector Sudhir Kumar Sharma, deposed that on the night of 7/8‑02‑2020 he was posted as Station House Officer, Police Station Adarsh Nagar. Two to three calls were received regarding a quarrel at Lal Bagh and he marked the same to Sub‑Inspector Ravi Kumar. As no one agreed to give a statement, the calls were kept pending. On 10.02.2020 the complainant Sanjeev Kumar came to the police station and gave his written complaint (Exhibit PW5/A); the Inspector marked the same to Sub‑Inspector Ravi Kumar with his endorsement (Exhibit PW16/A). He made an endorsement on the complaint on 01.03.2020 (Exhibit PW16/B) and got the First Information Report registered. The investigation was then marked to Assistant Commissioner of Police Jahangirpuri Sanjay Drall., Witness 17, Shri Pawan Singh, deposed that he was working as Nodal Officer with Vodafone Idea Ltd. since September 2018. He received a notice to produce Call Account Forms along with Call Detail Records and Cell ID charts and a certificate under Section 65B of the Indian Evidence Act for the numbers 9873386499 (in the name of Akhilesh) and 8588833418 (in the name of Naveen Prajapati, though the user list showed the name Hitashi). The CAF and CDR for number 9873386499 is Exhibit PW17/A (colly); for number 8588833418 is Exhibit PW17/B (colly). The certificate under Section 65B is Exhibit PW17/C. He was not cross‑examined on behalf of the accused despite the opportunity being given., The accused's statement was recorded under Section 294 of the Criminal Procedure Code on 28.11.2022, wherein he admitted Medical Leave Certificate No. 1517/20 dated 08.02.2020 of Vinayak Hospital (Exhibit P‑1). In view of this, witnesses at Serial Nos. 11 and 12 were dropped from the array of witnesses. Prosecution evidence was closed vide order dated 15.12.2022. An application under Section 311 of the Criminal Procedure Code was filed by the Learned Additional Public Prosecutor for the State to recall Witness 10 as his cross‑examination had not been conducted; this was allowed vide order dated 16.01.2023., After prosecution evidence was closed, a statement of the accused was recorded under Section 313 of the Criminal Procedure Code. All incriminating material, including exhibited documents, was put to the accused, who denied the allegations and stated that he had been falsely implicated. He admitted that Dispatch Diary No. 2A was recorded but claimed it related to his stab injuries at the hands of the complainant and BJP supporters. He admitted that he was admitted to Vinayak Hospital after sustaining serious injuries. He asserted that the complainant Sanjeev Kumar was violating the Election Code of Conduct by distributing election material and campaigning for BJP candidate Kapil Mishra, and that the accused was attacked by BJP supporters with a knife, causing serious injuries. He claimed that Witness 4, Mohd. Shami Khan, was an introduced witness, being the former President of Mandal Ward No. 76 for the BJP Party and closely associated with the complainant and his father, a BJP corporator for ten years, and that Witness 4 was never present at the spot. He denied using any caste‑specific or abusive language, stating that he was aware that such words could not be used and that he had never used them., The accused further stated that the complainant left his father's office to distribute election material and campaign for BJP candidate Kapil Mishra. He alleged that when he objected to the distribution, all BJP supporters beat him and attacked him with a knife, causing serious injuries and unconsciousness. He claimed that Bansi Tripathi, Om Singh and Vishal Pandey were not present at the spot. He noted that Witness 4 was not mentioned in the first complaint on which the First Information Report was lodged on 01.03.2020, and that Witness 4 was introduced by the complainant as a BJP supporter and interested witness. According to the record, the complainant Sanjeev Kumar was taken to Hindu Rao Hospital in a PCR van; Dr. Ankit Garg testified that Sanjeev received only conservative management and was discharged after two hours, with simple injuries as per Medical Leave Certificate Exhibit PW13/A. The accused alleged that Sanjeev made a false complaint after deliberation and consultation, and that the police favoured the complainant because the BJP Party was in power, withholding material facts that did not favour the prosecution., The accused produced Ms. Ranjhna as Defence Witness 1, who deposed that she runs a beauty parlour. On 07.02.2020 at about 11:30 p.m., her children (aged about 15 years and 8 years) were playing on the road at Jhandewala Chowk. She saw the complainant Sanjeev distributing election material and was told by the accused that the elections were to be held on 08.02.2020 and that she should vote for BJP. The accused Akhilesh Pati Tripathi came from the lane near Mithla Park and told Sanjeev not to distribute the pamphlets, citing the Election Code of Conduct. About 10 to 15 persons were with Sanjeev; they did not agree and attacked the accused. One boy had a knife and attacked the accused, who fell unconscious. An ambulance took the accused to the hospital. She stated that the police recorded her statement at the spot but she was not called for further investigation. She did not hear the accused say anything before he fell unconscious and volunteered that he had fallen unconscious., Defence Witness 2, Shri Balmiki Mandal, deposed that he worked as a waiter. On 07.02.2020, after finishing work at Apni Rasoi, Ashok Vihar, he reached Jhandewalan Chowk at about 11–11:15 p.m. and saw Sanjeev Kumar distributing BJP campaign material. The accused Akhilesh Pati Tripathi came from Mithla Park and told the complainant that the Election Code of Conduct was in place and he should not distribute pamphlets. On hearing this, Sanjeev Kumar and his supporters attacked the accused; a supporter tried to attack the accused with a knife, causing him to become unconscious. After about ten minutes, a police control room call and the Station House Officer arrived, and an ambulance took the accused to the hospital. The police inquired from the persons present, and the SHO also inquired from him. He was told that he might be called to the police station; he went home thereafter, did not give any complaint, and appeared only after receiving a summons from the Court. He stated that in his presence the accused did not use any abusive or casteist remarks. Defence evidence was closed vide order dated 16.02.2023., The Learned Additional Public Prosecutor for the State, Shri Manish Rawat, and Shri Mukesh Kalia, Learned Counsel for the accused, appeared. The Additional Public Prosecutor argued that the date of the incident was 07.02.2020 at 11:30 p.m. at Jhandewalan Chowk, with Sanjeev as the complainant and the First Information Report registered under provisions of the Indian Penal Code and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Several Dispatch Diary entries were lodged: Dispatch Diary No. 2A at 12:39 a.m. (Exhibit PW2/A) regarding the quarrel; Dispatch Diary No. 3A at 12:46 a.m. (Exhibit PW2/B) mentioning caste‑specific words and beatings; Dispatch Diary No. 8A at 2:38 a.m. (Exhibit PW2/C) regarding the admission of the accused in Vinayak Hospital; and Dispatch Diary No. 14A on 08.02.2020 concerning the admission of the complainant at Hindu Rao Hospital and the accused at Vinayak Hospital, which was kept pending., It was submitted that it was an admitted fact that the accused and the complainant were present at the spot and that there was no delay in lodging the complaint of the quarrel and use of caste‑specific words, as evidenced by the Dispatch Diary entry. Although the complaint may have been given on 10.02.2020 and the First Information Report registered on 01.03.2020, this does not constitute a delay that would prejudice the prosecution. The complainant's Scheduled Caste status and caste certificate were undisputed, and the accused, being the sitting MLA, was aware of the complainant's caste. The Additional Public Prosecutor further submitted that the complaint was registered vide Dispatch Diary No. 54B and that the allegations fulfilled all the ingredients of the offences. Section 341 of the Indian Penal Code was attracted as the scooty was stopped, constituting wrongful restraint; Section 323 IPC was attracted as the complainant was beaten and the medical report showed simple injuries. The words used by the accused, \Iska Baap Bahut Bada Neta Banta Hai,\ demonstrated knowledge of the complainant's caste background. The call on the 100 number (Dispatch Diary No. 3A) was made by the complainant. The Preliminary enquiry by Sub‑Inspector Ravi was not barred, as the investigation was later transferred to the Assistant Commissioner. The words uttered by the accused satisfied the ingredients of Sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, showing intentional insult or humiliation of the complainant, who was the son of an ex‑councillor belonging to a Scheduled Caste, in public view with independent witnesses., The Additional Public Prosecutor further submitted that Witness Raj Kishore was declared hostile but had supported the prosecution on several points, and Witness Mohd. Shami was an independent witness belonging to a different religion than the complainant. Intimidation under Section 506 of the Indian Penal Code was also proved. The First Information Report was lodged on 01.03.2020 (Exhibit PW1/A). Subsequent investigation recorded statements of witnesses including Raj Kishore, Mohd. Shami, and Ashib, and a supplementary statement of the complainant. The charge sheet was filed and charges were framed against the accused.
id_909	1	Seventeen witnesses were examined by the prosecution to prove its case. Prosecution Witness 1 proved the lodging of the First Information Report, which was not disputed and there was no suggestion to the witness that the report was manipulated. Prosecution Witness 2 proved the lodging of Diary entries, which was not challenged. It was argued that during cross‑examination the Diary entry regarding stabbing of the accused was admitted, but no such incident had taken place as there was no such alleged history in the Medical Leave Certificate of the accused and the Medical Leave Certificate did not show any stab injury. Different statements had been taken by the defence witnesses whereby Defence Witness 1 stated that the accused was stabbed and Defence Witness 2 stated that one boy tried to stab the accused, and there was no proof that the stabbing incident had taken place. Prosecution Witness 3 proved the Control Room record regarding Diary entries and no suggestion was put to him that the same was manipulated; his deposition was not challenged. Prosecution Witness 5 corroborated the allegations made in the complaint, stating that his scooty was stopped and mentioning the specific words that were used. The spot of the incident was admitted as being in public view. Prosecution Witness 4 was an independent witness who proved that the incident took place in his presence. Prosecution Witness 5 also stated that a call was made to the 100 number, which was reflected in the Diary entry, and he mentioned the presence of Prosecution Witness 4, who was his neighbour. Prosecution Witness 5 gave an explanation regarding the delay in lodging the complaint, which was not challenged during cross‑examination. He also proved the site plan prepared by the Investigating Officer and the caste certificate. He was subjected to detailed cross‑examination regarding the knowledge that the complainant was the son of the councilor and belonged to the Scheduled Caste category. The motive for using caste‑specific words was shown as the father of the complainant was earlier the councilor, and it was shown why the incident had happened. It was submitted that Prosecution Witness 5 was confronted with Exhibit PW5/A wherein some facts stated by the complainant in the examination‑in‑chief were not mentioned, but the same were mentioned in the statement of the complainant under Section 161 of the Criminal Procedure Code, with which the complainant was not confronted. It was stated that if the witness was not confronted or contradicted with an earlier statement, or no suggestion was put to him, or there was no cross‑examination on the same, the same was deemed to be admitted. Prosecution Witness 5 was also cross‑examined regarding Md. Shami and he stated that he was not a relative, he was a Muslim and not an interested witness. The cross‑examination of the complainant also showed that the accused knew that it was a reserved seat and that the complainant belonged to the Scheduled Caste category, so the prosecution did not have to prove that the complainant belonged to the Scheduled Caste category., The Learned Additional Public Prosecutor further argued that the defence taken by the accused was that the complainant was distributing election material, and Prosecution Witness 5 had stated that no one went to clean the premises. Prosecution Witness 5 also explained why the name of the accused and caste‑specific words were not mentioned in the alleged history in the Medical Leave Certificate, as the same was not asked and the complainant was a layman. It was submitted that there was a Diary entry about the stabbing incident, but the incident of stabbing was not shown by the record. The accused had nowhere said that the complainant had distributed election material and there was no documentary evidence to prove the same. Prosecution Witness 4 was an independent witness who corroborated the allegations made by the complainant, identified the accused and proved that the incident had taken place in public view. He was a neighbour but not a relative and a natural witness. He was cross‑examined on knowing Sanjeev; as he was the neighbour, he would know about the family of the complainant and was not an interested witness. The fact that he stated that he did not know where Sanjeev was coming from and what he was doing showed that he was an independent witness. He also corroborated the version of Sanjeev that there was no one to clean the premises and that the complainant was on a scooty, and no specific suggestion was put to Prosecution Witness 4 that Prosecution Witness 5 was not on a scooty. He volunteered that he had heard the abuses. He also stated that he did not know Defence Witness 1 and Defence Witness 2 and denied their presence at the spot of the incident. The suggestion regarding the knife was falsified as there was no medical evidence and no corroborating evidence that a stab injury was sustained by the accused. The doctor had also not stated so, and merely because Prosecution Witness 4 was from the Bharatiya Janata Party, his testimony could not be discarded., The Learned Additional Public Prosecutor further submitted that Prosecution Witness 7 was the caller who made the call and the Diary entry was also there. Prosecution Witness 8 had handed over the scooty to Prosecution Witness 5 and he was not challenged that he had handed over the scooty to the complainant. Even though the scooty was not produced during trial, the number of the scooty and the colour were recorded. Prosecution Witness 9 proved the caste certificate, and it was not challenged during trial that the complainant belonged to the Scheduled Caste. Prosecution Witness 10 had proved the complaint. Prosecution Witness 11 had accompanied the Investigating Officer. It was submitted that Defence Witness 1 had stated that her statement was recorded by police officers at the spot, but no suggestion was put to Prosecution Witness 11 that public persons were present at the spot or their statements were recorded at the spot. Prosecution Witness 12 had carried out the enquiry prior to registration of the First Information Report and after the lodging of the FIR the investigation was carried out by the Assistant Commissioner of Police. The cross‑examination of Prosecution Witness 12 falsified the version of the accused that statements of public persons were recorded at the spot. No suggestion was put to Prosecution Witness 13 that the accused had suffered stab injuries or that he was administered medicines for the same. Prosecution Witness 14 had proved the number which was reflected in Diary No.3A. Prosecution Witness 15 proved the site plan and also stated that the owner of the scooty was examined. Regarding the argument that the prosecution had not proved that the accused did not belong to the Scheduled Caste category, it was submitted that no suggestion was put to Prosecution Witness 15 in that regard and he had filed the charge‑sheet; even otherwise Tripathi was not a lower caste. It was contended that the defence put forth by the accused was not proved that the complainant was distributing election material and it was not shown that Md. Shami was a procured witness. Prosecution Witness 16 had stated that he did not record the statement of any witness at the spot. Prosecution Witness 17 was the Nodal Officer., It was further argued that during his statement under Section 313 of the Criminal Procedure Code the accused had given a false statement, so it had to be read against him as there was nothing to show stab injuries. He had also not stated that Defence Witness 1 and Defence Witness 2 were present at the spot. Moreover, if any incident had taken place with the accused and the police had not taken action, legal remedies under Section 156(3) of the Criminal Procedure Code were available to the accused, but he had not availed the same. Defence Witness 1 had stated that there were ten to fifteen persons with the complainant, whereas Defence Witness 2 had stated that there were seven to eight persons. Defence Witness 1 had stated that one boy had a knife and had attacked the accused, whereas Defence Witness 2 had stated that one boy tried to attack the accused, showing a contradictory version. Defence Witness 1 had stated that her children were playing in the area and there was no park, then later she stated that there was a small park. Defence Witness 2 had stated that children used to play there. It was argued that the defence witnesses were procured witnesses. Photographs were put to Defence Witness 1, which she admitted, and which showed that she supported the Aam Aadmi Party., Per contra, the Learned Counsel for the accused submitted that the objective of the Scheduled Caste/Scheduled Tribe Act was to protect weaker sections who are socially, financially, educationally and economically weaker from atrocities, and the provisions were not meant to be misused to achieve an ulterior motive, which was the purpose of the present case. The complainant belonged to a fairly well‑off family from a metropolitan city; he owned a car, a scooter, multiple houses and offices, and one office was given to the Bharatiya Janata Party for operation. Educationally he was a law student at the time of the alleged incident. He had been residing in Delhi for decades and he was claiming protection of a law meant for weaker sections, which he was not. The alleged intimidation and threat did not fall within the ambit of the Scheduled Caste/Scheduled Tribe Act. It was admitted that the accused was a three‑time sitting Member of Legislative Assembly from the Aam Aadmi Party for Model Town Constituency. The complainant’s father had remained councilor for ten years from the same constituency. The incident took place on 07‑02‑2020 and 08‑02‑2020 was the date of elections. The accused was the sitting MLA. It was contended that there was a tendency of the opposition party to implicate AAP persons and that the complainant and his father were supporting Kapil Mishra, the Bharatiya Janata Party candidate who had defected from AAP. The alleged incident had taken place on the intervening night of 07‑02‑2020 and 08‑02‑2020 when the elections were to be held. It was submitted that the Learned Additional Public Prosecutor had picked and chosen parts of the cross‑examination, ignoring or not inviting attention to the relevant portions. It was argued that the complainant had admitted that he was going to throw campaign material. Moreover, the accused was unconscious so he could not make a detailed report to the police about the incident. Ashib had stated that he had not given the scooty and his brother had given the scooty, whereas the complainant had stated that he had taken the scooty from Ashib, creating a contradiction. The complainant had stated that Prosecution Witness 4 was not related to the Bharatiya Janata Party, but Prosecution Witness 4 had stated otherwise, impeaching his credibility; photographs shown to him were admitted. The complainant had also named other persons like Bansidhar, but the Investigating Officer found that they were not at the spot on the basis of call‑detail records. On 07‑02‑2020 when the Assistant Commissioner of Police and the Station House Officer went to the spot, they recorded the statements as stated by Defence Witness 1, but they were not produced., Reliance was placed on behalf of the accused on the PCR form Exhibit PW3/A (colly) which showed the landing time as 12:11:47 a.m. It was submitted that the witnesses had not stated that the accused was attacked from the sharp side and perhaps the knife did not penetrate due to the clothes the accused was wearing. It was submitted that even if there were no injuries correlating to stab injuries, it would not make the defence of the accused doubtful. It was pointed out that the same document also showed that the police were at the spot at 12:16:34 a.m. and the presence of the Station House Officer was shown at 12:16 a.m., and he may have arrived earlier. There was mala‑fide on the part of the prosecution as none of the PCR was examined and the same had been put to the witness during cross‑examination. It also showed that the accused had sustained injuries and had fallen unconscious, and the witnesses to those facts had not been examined by the Investigating Officer. It was submitted that the first information by the complainant was at 12:34:41, i.e., almost after twenty minutes. It was submitted that when the accused was lying unconscious and being removed to hospital in an ambulance, the Station House Officer and PCR were there, and the accused, being unconscious, could not make the call, but the complainant himself made the call after twenty minutes as he was in possession of campaigning material which was prohibited. The complainant had stated that his father had asked him to throw the same at midnight, corroborating that he was in possession of the material., It was argued that as the accused was unconscious, he could not give details, but the complainant, due to his background, could speak about the caste‑specific words. Reference was made to the Medical Leave Certificate of the accused which showed his time of admission at 12:55 a.m. and an alleged history of assault around one hour earlier, i.e., around midnight, and the complainant had informed the police forty minutes after that. Moreover, as per the report the accused was drowsy and not obeying commands. The Investigating Officer who had gone to the hospital also stated that the accused was not in a position to make a statement. The time of admission of the complainant was 1:25 a.m., much later than that of the accused, and there was no history of any atrocities allegedly committed against him. Reference was also made to the statement of Prosecution Witness 13. It was pointed out that the next day the complainant had gone to cast his vote, but despite that he lodged the complaint only on 10‑02‑2020, an unexplained delay of three days. Merely by referring to the Diary entries, it could not be said that the atrocities were committed and the offence under the Scheduled Caste/Scheduled Tribe Act was made out., The Learned Counsel for the accused further submitted that the complaint was made on 10‑02‑2020 at night. The enquiry by Sub‑Inspector Ravi Kumar was not made part of the judicial record. After twenty days, without any pressure, the First Information Report was lodged. In the original complaint there was a handwritten averment regarding producing the Scheduled Caste/Scheduled Tribe certificate, and Prosecution Witness 5 had stated that the same was added when he gave the certificate. There was a presumption against the prosecution that material documents had been withheld. It was submitted that Prosecution Witness 4 was not an independent witness, though it was argued that he was not related to the complainant party. It was contended that in the statement of the complainant dated 10‑02‑2020 there was no reference to Prosecution Witness 4. He also stated that he did not see the accused stopping the scooty of the complainant. Prosecution Witness 4 was closely associated with the Bharatiya Janata Party and the photographs were not denied by the prosecution or by the witnesses; they were taken over a period of one decade wherein Prosecution Witness 4 was celebrating with the family of the complainant. It was argued that the conduct of Prosecution Witness 4 had to be seen; he was closely associated with the complainant but did not intervene, did not raise any hue and cry, did not sustain any injury, did not make any call to the police, did not escort the complainant to the hospital with the police, did not go to meet him in the hospital and did not take any follow‑up. He met the complainant on 08‑02‑2020 but he did not make any representation to the police nor did he go to the police station; he acted as a silent spectator and only at the instance of the father of the complainant did he go to the police station and make a statement, making deliberate improvements with regard to caste‑specific words in his testimony in court which were not even mentioned in his statement under Section 161 of the Criminal Procedure Code, and not much credence could be given to his statement., The Learned Counsel for the accused further submitted that the incident had taken place just prior to the election and in violation of the Election Code of Conduct, the complainant was in possession of and distributing election material, which was prohibited, and the admission was there that he was going to throw the election material. It was also not in dispute that the accused was injured and was lying on the ground. The call by the complainant was made after more than twenty minutes. In the Medical Leave Certificate, the time of admission of the accused was shown as 12:55 a.m. and he had sustained the injuries around 12:00 a.m., whereas the complainant was admitted at 1:25 a.m. It had also come on record that the accused was drowsy and was not responding to commands. The complainant had sustained simple injuries and was discharged after two hours after being given conservative management, yet there was a three‑day delay in making the complaint, which was made only on 10‑02‑2020. Further, no material had been placed on record to show what investigation or enquiry was conducted between 10‑02‑2020 and 01‑03‑2020. The First Information Report was then registered on 01‑03‑2020 after twenty‑one days and the statements of the witnesses were recorded on 21‑03‑2020 or thereafter. It was submitted that the statements of all the witnesses were recorded either on 21‑03‑2020 or thereafter, i.e., after more than fifty days of the incident and twenty‑one days after the registration of the First Information Report. As such there was a delay in lodging the complaint though the complainant was hale and hearty, a law student, and he had gone to cast his vote, which casts doubt on the motive of the complainant. He had himself caused injuries to the accused and apprehended that he may face repercussions from the accused, who was the sitting MLA, as he was violating the Election Code of Conduct and supporting the opposition party. It was submitted that apart from building up his defence, the complainant also wanted to tarnish the image of the accused and with one complaint he tried to achieve several things., It was argued that Prosecution Witness 12 had stated that the accused was unconscious, so there was no occasion for the accused to make the call to the police. Prosecution Witness 12 was the first Investigating Officer who had reached the spot and then had gone to the hospital. Even at 12:55 a.m. when the accused was examined, he was not responding, so the accused could not have informed the police by way of phone call. There was no suggestion to Defence Witness 1 and Defence Witness 2 that they were not living in the area; they were natural and independent witnesses residing there. It was submitted that there were three main witnesses of the prosecution, out of whom Prosecution Witness 4 was an introduced witness. Reference was made to the examination‑in‑chief of Prosecution Witness 5, who had stated about three persons, but the result of the investigation was that they were not there at that time. Their mobiles were examined and they were not found present at the spot and they were not charge‑sheeted, and the allegations of the complainant were found incorrect. It was submitted that since the case was under the Scheduled Caste/Scheduled Tribe Act, the onus was on the prosecution to show that the intention behind the provisions was fulfilled, but there was no reference in the examination‑in‑chief to the caste or that the complainant belonged to a Scheduled Caste/Scheduled Tribe category, or to any utterances made to humiliate a person of a particular caste. Despite the fact that the complaint was lodged after deliberation and consultation, there were no such allegations, and it was only if alarm was caused due to intimidation that the offence would be made out. It was submitted that it was necessary for the complainant to have stated that, with a view to insult and humiliate him as he belonged to a particular caste, the utterances were made, which would attract the offence., It was argued that the complainant time and again was telling a lie during his cross‑examination. He had admitted that he was a law student, that the accused was an MLA, that his own father was councilor for ten years and was supporting the Bharatiya Janata Party candidate. He had stated that it was not in his knowledge that the Election Code of Conduct was in place. Omveer, with whom he had gone to make the complaint, was not examined and the Assistant Commissioner of Police had stated that he had met the complainant for the first time on 01‑03‑2020. In cross‑examination Prosecution Witness 5 had stated that the accused was with thirty to forty supporters, whereas Prosecution Witness 4 had stated that there were twenty to twenty‑five supporters. There were several improvements made by him in his testimony with which he was confronted. He had stated that he had taken the scooty from Ashib, but Ashib had stated that he was not there and the scooty was taken from his brother. It was also conceded that the scooty was not taken into possession. Ashib had admitted that his statement was not recorded by the police, so the statement of the complainant regarding the scooty was not substantiated., It was submitted that Prosecution Witness 4 was the only witness who supported the case of the prosecution and Prosecution Witness 5 had stated that he was not related to him. Prosecution Witness 5 had stated that he did not know the political affiliation of Prosecution Witness 4. However, Prosecution Witness 4 was confronted with photographs etc., which showed his close association with the Bharatiya Janata Party. Further, Prosecution Witness 5 had stated that he had gone to college on 07‑02‑2020, which falsified that he had taken the scooty at 10 a.m. on that day and then he tried to cover up the same. Prosecution Witness 5 had also stated that Prosecution Witness 6 was with him, but Prosecution Witness 6 was the only witness on which the prosecution had harped, and Prosecution Witness 6 had not supported the case of the prosecution on any count except that he was a resident of the area. It was submitted that even possessing election material was an offence and Prosecution Witness 5 had himself admitted that he was taking the same. It was contended that Prosecution Witness 5 could not say when the caste‑specific words were stated. He had stated that two to three persons with the accused had also passed the remarks, whereas Prosecution Witness 4 had said that only the accused had passed the remarks. Prosecution Witness 5 had said that the remarks were passed two times, whereas Prosecution Witness 4 stated that the remarks were passed only one time. Further, the police had stated that they had recorded the statement of Prosecution Witness 6 after forty days and it could not be that the accused had won him over, as even during the forty days there was no representation by him, he had not called the police and he had not gone to the hospital with the complainant. The mother, brother and sister of the complainant had come to the spot but they were not examined. The Investigating Officer had stated that there was no relative of the complainant at the hospital, but Prosecution Witness 5 had stated that his mother had gone to the hospital., The Learned Counsel for the accused further argued that the police and the Station House Officer were at the spot at 12:16 a.m., but none of the officers from the PCR were examined. Prosecution Witness 5 had made an incorrect statement that the accused was at the spot when he was taken to the hospital, as the admission of the accused in the hospital was prior to the admission of the complainant. It also corroborated that the complainant had hit the accused and he had admitted his involvement in the fight. It was submitted that if the family members of the complainant were there at the spot and utterances had been made, they would have made a complaint, which was not so. Prosecution Witness 5 was also confronted with photographs and the names of persons who were present at the spot and from whom the accused had gathered information; two of those persons had been examined as defence witnesses. It was submitted that it was not the quantity but the quality of witnesses that mattered and the defence witnesses in the present case were natural and independent witnesses, one of whom belonged to the Scheduled Caste category and one was a lady. It was submitted that the caste certificate was given on 01‑03‑2020 whereas the complaint was of 10‑02‑2020, so there was interpolation, as the complainant had stated that he had added the handwritten portion on the day he had handed over the caste certificate. It also showed that it was after due deliberation and consultation that the complaint was made. Further, Sunil Kumar was not examined, who had told the complainant about the sections. The complainant had also not told the history to the doctor at the hospital. There was no reference in the complaint Exhibit PW5/A to the presence of Md. Shami, which was an improvement, and Md. Shami was examined by the police after forty‑two days. As regards Prosecution Witness 6, he was cross‑examined in detail by the Learned Additional Public Prosecutor and he had denied the utterances and had not supported the case of the prosecution, though he was an important witness on whom the prosecution was relying., The Learned Counsel had further submitted that Prosecution Witness 4 was shown as an independent witness but he was not so. Prosecution Witness 5 had stated that he did not know of the connection of Prosecution Witness 4 to the Bharatiya Janata Party, but Prosecution Witness 4 had admitted that he remained a Pradhan for ten years and also admitted the photographs which showed that he was an interested witness as he was associated with the Bharatiya Janata Party for many years. It was argued that the presence of Prosecution Witness 4 at the spot was doubtful as he held an important post and was closely associated with the family of the complainant but he did not inform the police or anyone else about the incident, did not take the complainant to the hospital, did not meet the complainant in the hospital, was not aware of the physical condition of the complainant, did not go to the police station in February 2020 nor enquire from the complainant. In fact he was called by the father of the complainant and then he went to the police station and got his statement recorded. He had stated that he was unaware that the accused sustained injuries and that he was not aware that the accused was removed to hospital, though he left much later, showing he was an introduced witness. In the statement recorded under Section 161 of the Criminal Procedure Code on 21‑03‑2020, Prosecution Witness 4 was not aware of the caste‑specific words and did not inform the police about the specific words, whereas in his examination‑in‑chief he had stated the said words. There was no representation or complaint by him, but after two years and seven months, for the first time in court, he mentioned specific utterances, creating doubt that he was a planted and tutored witness. There was also a difference in the words stated by Prosecution Witness 4 and Prosecution Witness 5, which created doubt on the utterances being made. During cross‑examination Prosecution Witness 4 stated that he knew the family of the complainant, stated his involvement with the Bharatiya Janata Party and the complainant, and admitted the photographs, saying he had been campaigning with the family of the complainant. He had also taken charge of campaigning when the father of the complainant was in custody, so he could not be regarded as an independent person., It was also submitted that if the office had closed at 8 p.m., there was no occasion for the complainant to be there at 11 p.m. to clean the office and to go to throw the garbage at 11:30 p.m. Prosecution Witness 4 had stated that he had not seen the scooty being stopped and that he did not call the police, but Sanjeev called the police. He also stated that he remained at the spot for ten minutes only and he did not see Sanjeev hitting anyone, whereas Sanjeev had stated that he had hit the accused. His statement was factually incorrect that he had not seen the accused being hit, or it was possible that he came later; if he had come later then the accused could not have made the utterances in his presence. He also stated that only the accused abused Sanjeev, whereas Sanjeev stated that there were others also. There were improvements in his statement and he was not getting support from his original statement., The Learned Counsel for the accused further submitted that Prosecution Witness 16 was the Station House Officer and at the time of elections police officers are on high alert. It was unbelievable that on receiving information that the sitting MLA was attacked, he did not go to the spot, whereas the record showed that he had gone to the spot. It could not be believed that the police station was only one kilometre from the spot but still he did not go to the spot, and as such Prosecution Witness 16 was stating contrary to the record to support the case of the prosecution. He stated that the entire night he was in the police station, but it could not be that he did not get feedback from the hospital, and the same could not be believed. It was argued that when the police were under the control of one party, the police were bound to act as per their dictates. It was argued by the Learned Additional Public Prosecutor that the names of the defence witnesses were not suggested to Prosecution Witness 11.
id_909	2	there was no occasion to suggest the names to Witness 11 as he had only stated about joining the investigation on 21 March 2020 and the suggestions were given to the Investigating Officer who had gone to the spot on the intervening night of 7–8 February 2020. Witness 15 stated that he met Witness 4 at the spot but Witness 4 stated that he had gone to the police station at the instance of Madhav Prasad. He stated during cross‑examination that on 8 February 2020 he was on patrolling and that on 7 February 2020 at 11:35 p.m. the police were aware of the incident. The first information by the complainant was at 12:34 a.m. and he contradicted the Station House Officer, stating that the Station House Officer had informed him and he had reached before the Police Control Room and before midnight, so either the Station House Officer or the Assistant Commissioner of Police was telling a lie, which also showed how the investigation was conducted. He stated that he met the complainant for the first time on 1 March 2020, indicating malafide intent, and that everything was placed on record but no official of the Police Control Room was examined in whose presence the accused was removed to hospital. He placed the Call Data Records of others on record but not of Witness 6, who was the star witness, and not of Witness 4, and he also stated that Sanjeev informed him about Witness 4 on 21 March 2020, showing that Witness 4 was an introduced witness. Witness 6 was examined on 25 March 2020 after 45 days and he was also produced by the complainant., Learned Counsel for the accused further submitted that the accused in his defence had produced two Documentary Witnesses and Documentary Witness 2 was from the same caste; both stated their presence at the spot and testified that the Station House Officer and the Assistant Commissioner of Police were there. Their testimony was natural and inspired confidence. It was submitted that Witness 8 had also not supported the case of the prosecution. It was submitted that there were contradictions in the testimonies of the witnesses and the accused was entitled to an acquittal., Learned Additional Public Prosecutor for the State, in rebuttal, submitted that Witness 4 had not lied about not belonging to the Bharatiya Janata Party; he had admitted that he belonged to the Bharatiya Janata Party, so there was no falsity. Mohd. Shami stated that he had intervened in the matter. The Scheduled Caste/Scheduled Tribe certificate was not disputed and there was no suggestion that Exhibit PW9/A was manipulated or that the complainant did not belong to a Scheduled Caste/Scheduled Tribe. There was also no dispute that the complaint was made and no suggestion that the complaint was manipulated; therefore, even if Omveer was not examined it did not matter, as the quality of the witnesses mattered, not the quantity. Further, Omveer was not at the spot and only went with the complainant, so there was no requirement to examine him as a witness. There was also no admission that the complainant was distributing campaign material; he had stated that he was going to throw waste, and there is a difference between campaign material and waste material. Even if Witness 4 had not stated the caste‑specific words in his statement under Section 161 of the Code of Criminal Procedure, it could not be discarded nor said to be contradictory or an omission. Moreover, the statements of witnesses had been videographed and could not be challenged. It was argued that the Station House Officer and Sub‑Inspector Ravi had specifically stated that statements of no witnesses were recorded at the spot, so the statement of Documentary Witness 1 and Documentary Witness 2 that the statements were recorded at the spot was false. No legal remedy had been availed by the accused and, as regards the alleged contradictions, parroting statements were not permissible., It is a settled proposition of law that, to secure a conviction, the prosecution must establish its case beyond reasonable doubt by establishing an unbroken chain of events leading to the commission of the offence. It is also a settled proposition that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt, which ultimately leads to acquittal (1997(3) Crimes 55 in Sadhu Singh v. State of Punjab). The cardinal rule in criminal law is that the prosecution must prove its case beyond reasonable doubt and the benefit of doubt must be given to the accused. In Batcu Venkateshwarlu v. Public Prosecutor, High Court of Andhra Pradesh (2009) 1 RCR (Criminal) 290, the Supreme Court of India observed that a person has a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is higher, there is no absolute standard. The degree of probability that amounts to proof is an exercise particular to each case. Doubts are called reasonable if they are free from abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over‑emotional response. Doubts must be actual and substantial as to the guilt of the accused arising from the evidence, or from its lack, as opposed to mere vague apprehensions. A reasonable doubt is not imaginary, trivial, or merely possible, but a fair doubt based upon reason and common sense, and it must grow out of the evidence in the case., Based on the testimony of the witnesses and the documents on record, the Supreme Court of India must scrutinize whether the prosecution can prove the offences with which the accused has been charged beyond reasonable doubt. In his complaint dated 10 February 2020 (Exhibit PW5/A), the complainant Shri Sanjeev Kumar stated that on 7 February 2020 at around 11:35 p.m., when he and his friend Raj Kishore were going to his home, the accused along with his supporters stopped the complainant at Jhandewalan Chowk, Lal Bagh, took the key of his scooter and beat him badly. The accused used caste‑specific words “Chamar ko maro, iska baap bahut bada neta ban raha hai” and “iss chamar ko iss ki aukat dekha do” to damage the image of the complainant and his parents. The complainant and his family members called the emergency police number (100), and when the police arrived at the spot, the accused fled. It was stated that the accused and his supporters beat the complainant with heavy objects and the complainant was admitted to Hindu Rao Hospital immediately., The material witnesses in the present case are Witness 4, Witness 5 and Witness 6. Witness 4, Mohd. Shami Khan, deposed that he was working as a property dealer. On 7 February 2020 at about 11:30 p.m., he was present at Jhandewalan Chowk, Lal Bagh. His house was close to the spot and after having dinner he stepped out of his house. Sanjeev, whom he knew from before, was going on a scooter with his friend Raj Kishore. As they turned right from Jhandewalan Chowk, the accused Akhilesh Pati Tripathi was coming with around 20 to 25 persons from the front. They stopped Sanjeev and started beating him. When Witness 4 saw the incident, he ran towards the spot to intervene. He asked the accused why they were beating Sanjeev, and they pushed him as well. The accused and his men abused Sanjeev using caste‑specific words such as “inka baap bahut bada neta banta hai, chamaar ke bachey ko sabak sikhana hai.” The mother of Sanjeev, Subhawati, and others also came to the spot. Sanjeev made a call on the emergency police number (100). The police came to the spot and took Sanjeev to the hospital; he later returned home. On 21 March 2020, the police recorded his statement, and he identified the accused., Witness 5, Sanjeev Kumar, who is the complainant, deposed that he is a student. On 7 February 2020 at about 11:30 p.m., he left the office of his father (Bharatiya Janata Party office) B‑5, Mouji Wala Bagh, Jhandewalan Chowk, where his father had asked him to do cleaning work. There was a garbage bin about 500 metres from the office. He placed the dustbin on his scooter and, together with his friend Raj Kishore, was going towards the garbage bin. The accused Akhilesh Pati Tripathi was standing with about 30‑40 supporters. They saw him, stopped his scooter and the accused took the key of his scooter. The accused, who stated that he was the son of Madhav Prasad, took him off the scooter, caught hold of his collar and slapped him. He uttered the caste‑specific words “iss chamaar ko maro, iska baap bahut bada neta banta hai, iss chamaar ko iski aukaat dikhao.” Others also started beating him. The main persons were Bansi Tripathi, Om Singh and Vishal Pandey. He stated that his uncle, who lived in the neighbourhood, Dr. Mohd. Shami Khan, came to the spot and intervened; he was also pushed. His mother also came to the spot. He called the emergency police number (100). Police arrived, and an ambulance took him to Hindu Rao Hospital. The police came to the hospital to record his statement, but his condition was not good. On 10 February 2020 he gave a typed complaint at Police Station Adarsh Nagar (Exhibit PW5/A)., Witness 5 further deposed that on 20 February 2020 or 21 February 2020 the police took him to the spot of the incident and prepared the site plan at his instance (Exhibit PW5/B). He had submitted his caste certificate to the Investigating Officer on a date he did not remember; it was seized vide seizure memo (Exhibit PW5/C). The duly verified caste certificate is Exhibit PW5/D. He identified the accused. Thus, Witness 5 reiterated the incident of 7 February 2020 when, at about 11:30 p.m., he and his friend Raj Kishore were going towards the garbage bin on his scooter, and the accused, who was standing with about 30‑40 supporters, stopped his scooter, took him off the scooter, caught hold of his collar and slapped him, making caste‑specific remarks. He stated that Dr. Mohd. Shami Khan came to the spot and intervened and was also pushed., Witness 6, Shri Raj Kishore, deposed that he could not recall the exact date as a long time had passed; he was busy in his office, Grand Uddhav, Pahar Ganj, Nehru Market. Between 12 p.m. and 6 p.m. he received a call from the Police Station and was told that his name and number were noted and that he had to go to the Police Station. He told them he was busy and could not come at that time. At 10 p.m. he reached Police Station Adarsh Nagar, gave his address and phone number, and his signatures were obtained on a paper on which three to four lines were written. He was then told that he did not have to come again. He stated that he was not allowed to read what was written on the paper. He also stated that his father was not well and died in 2021 due to cancer., Learned Additional Public Prosecutor for the State requested to cross‑examine Witness 6 as he was not supporting the case of the prosecution, which was allowed. During cross‑examination, Witness 6 denied the suggestion that he had met Assistant Commissioner of Police Sanjay Drall on 25 March 2020 at Police Station Jahangir Puri and volunteered that, because of the coronavirus pandemic, it was not possible to leave the house. He denied that he had told Assistant Commissioner of Police Sanjay Drall about the incident, that he had recorded his statement, or that the said statement was read out to him, although he stated it was correct. He was shown his statement dated 25 March 2020 and, after reading the statement marked PW6/1, he stated that he had not made the said statement to the Investigating Officer. He denied that he was deposing falsely that he had not given any statement or that the statement marked PW6/1 to Assistant Commissioner of Police Sanjay Drall was false, or that he had not met him. He denied that on 7 February 2020 at about 8 p.m. he, along with the complainant Sanjeev Kumar, was present at the office of Sanjeev’s father and volunteered that he had dinner at 8 p.m. with his family. He was confronted with the statement marked PW6/1 wherein it was so stated. He stated that in 2020 he was pursuing a Bachelor of Commerce through open university. He denied that he and Sanjeev Kumar had cleaned the office and put the garbage in a box, or that Sanjeev had taken out his scooter No. DL6SAM 4665 to throw the garbage, or that he had kept the box on the scooter and both left the office to throw the box in the garbage bin. He was confronted with the statement marked PW6/1 wherein it was so stated. He stated that Sanjeev was not his friend but he knew him because his father was the Councillor. He denied the suggestion that the scooter was driven by Sanjeev and that he was sitting behind him. He knew the accused Akhilesh Pati Tripathi as he was the Member of Legislative Assembly of their area and he identified the accused., Witness 6 denied the suggestion that when Sanjeev and he, at about 11:15 p.m., turned right from Jhandewalan Chowk towards the garbage bin, they saw the accused Akhilesh Pati Tripathi and his supporters standing on the road. He was confronted with the statement marked PW6/1 wherein it was so stated. He denied that he had told the Investigating Officer that the accused Akhilesh Pati Tripathi came in front of the scooter and stopped it, and that on seeing Sanjeev he stated that he was the son of Madhav Prasad, or that he took out the key of the scooter, or that he made them get off the scooter forcibly. He was confronted with the statement marked PW6/1 wherein it was so stated. He further denied that he also stood on the corner and volunteered that there was a lot of noise and about 150‑200 people had gathered at the spot, and that he was also standing there. He stated that the Member of Legislative Assembly and his supporters, and the opposition party, i.e., Madhav Prasad and his family members, were also present at the spot and there was verbal abuse and physical assault between them. He denied that the accused Akhilesh Pati Tripathi started checking the scooter, caught hold of the collar of Sanjeev, slapped Sanjeev, or said to Sanjeev “Chamar ko maro, iska baap bahut neta ban raha hai, iss chamar ko iski aukaat dikha do,” and denied that he had told the Investigating Officer that the friends of the accused—Bansi Tripathi, Vishal Pandey, Om Singh and others—started beating Sanjeev, stating that he did not know those persons. He was confronted with the statement marked PW6/1 wherein it was so stated. He denied that he had told the Investigating Officer that at that time Mohd. Shami Khan, who resided in the neighbourhood, came and intervened, or that the accused and his associates engaged in “Dhaka Mukki” with Mohd. Shami Khan. He was confronted with the statement marked PW6/1 wherein it was so stated. He admitted that the mother of Sanjeev had come to the spot and that the entire family of Sanjeev was present, and that a physical altercation (Hathapai) was going on. He admitted that many persons had gathered there from both sides. He denied that he had told the Investigating Officer that Sanjeev called the police on the emergency number (100), that the Police Control Room and an ambulance had come to the spot, or that the ambulance had taken Sanjeev to the hospital, and he volunteered that he had gone home before that. He was confronted with the statement marked PW6/1 wherein it was so stated. He denied that he was refusing to make the statement marked PW6/1 to the Investigating Officer because he had been won over by the accused and was supporting the case of the accused., Witness 6 thus denied giving any statement to the Investigating Officer. He denied the suggestion that statements were given to him regarding the incident of 7 February 2020, whereas, according to the prosecution, Witness 6 had accompanied the complainant Sanjeev Kumar on that date. He stated that Sanjeev was not his friend but he knew him because his father was the Councillor, and he also stated that he knew the accused Akhilesh Pati Tripathi as he was the Member of Legislative Assembly of their area. He was confronted with the statement marked PW6/1 but denied having any knowledge about the incident as stated therein. However, he volunteered that there was a lot of noise and about 150‑200 people had gathered at the spot, and he was also standing there. He stated that the Member of Legislative Assembly and his supporters, and the opposition party, i.e., Madhav Prasad and his family members, were also present at the spot and there was verbal abuse and physical assault between them. Thus, even according to Witness 6, some incident took place on 7 February 2020 involving verbal and physical altercations between the MLA’s supporters and the opposition party. He denied knowing the alleged friends of the accused—Bansi Tripathi, Vishal Pandey, Om Singh. He admitted that the mother of Sanjeev had come to the spot and that the entire family of Sanjeev was present, and that a physical altercation (Hathapai) was ongoing. He further admitted that many persons had gathered there from both sides. Consequently, Witness 6 denied accompanying the complainant on 7 February 2020, although he acknowledged that some incident occurred between the two sides on that date with many persons present., It is thus seen that Witness 4 and Witness 5 had deposed about the alleged incident of 7 February 2020, while Witness 6 had not supported the case of the prosecution except insofar as he stated that some incident had taken place on that date. According to the prosecution, several calls were received by the police regarding the incident, and the prosecution proved the Diary Entries through which the calls were made; Witness 2, Witness 3, Witness 12, Witness 15 and Witness 16 had deposed regarding the same. The Learned Additional Public Prosecutor submitted that the caller in respect of Diary Entry No. 2/B was the complainant Sanjeev, whose number was reflected in the call, and thereafter the Nodal Officer pointed out the mobile number of the complainant. The record also shows that the mobile number of the complainant is reflected in Exhibit PW2/B, and thereafter Witness 14 proved that the said number belonged to the complainant. Further, Diary Entries No. 8A and No. 14A were also registered, as well as Diary Entry No. 2A (Exhibit PW2/A). Witness 2 was cross‑examined at length and, during cross‑examination, stated that on 8 February 2020 he was working as Duty Officer. He was alone and there was no one to assist him; he volunteered that there was one operator, but could not recall the operator’s name. Whatever he had deposed in his examination‑in‑chief was on the basis of records. He was not aware when the Legislative Assembly elections were held. He stated that the accused was the Member of Legislative Assembly from Model Town at that time, representing the Aam Aadmi Party. Thus, Witness 2 was not aware when the Legislative Assembly elections were held. Further, Witness 2 stated that he was not aware, nor did he have any concrete information, that Bharatiya Janata Party persons had stabbed a candidate of the Aam Aadmi Party at about 12:39 a.m. He was not aware whether any information was received at the Police Station prior to Diary Entry No. 2A. It was mentioned in Exhibit PW2/A that Bharatiya Janata Party persons had stabbed the Aam Aadmi Party candidate. He denied the suggestion that he had deliberately deposed falsely that he was not aware or that he had no concrete information about the stabbing, or that he had deliberately deposed falsely at the instance of the ruling party. Thus, Witness 2 stated that he was not aware nor had any concrete information that Bharatiya Janata Party persons stabbed the Aam Aadmi Party candidate at about 12:39 a.m., although he noted that Exhibit PW2/A mentioned such a stabbing. He stated that the entry Exhibit PW2/A was made by the typist, whose name he did not remember., Witness 2 further stated that he had made an entry in the logbook (Roznamcha) about joining duty. He could not tell the Diary Entry number of the same, but it was around 8 p.m. on 7 February 2020, and he volunteered that his duty was from 12 a.m. to 8 a.m. There is no reason to doubt that Witness 2 was on duty on the said date. He admitted that after 12 a.m. the number of Diary Entries started from one. He could not tell how many calls of fights were received from 8 p.m. on 7 February 2020 to 12:39 a.m. on 8 February 2020, or how many Diary Entries were recorded. He had not produced any record other than what was summoned. He denied the suggestion that he had not produced the other record because it was not favorable to the prosecution. However, Witness 2 was a witness only to the record and had deposed as per the record. He could not admit or deny the suggestion that the Aam Aadmi Party candidate was stabbed at 11:40 p.m. on 7 February 2020 or that the information was received at the Police Station at that time. It is seen that Exhibit PW2/A mentions that Bharatiya Janata Party persons had stabbed the Aam Aadmi Party candidate, though the time noted is 12:39 a.m. The Learned Additional Public Prosecutor for the State argued that Witness 2 had proved the lodging of Diary Entries, which was not challenged, and there is no dispute that the Diary Entries were lodged; rather, the accused claims that the first Diary Entry lodged was regarding the accused being stabbed. The Learned Additional Public Prosecutor further argued that during cross‑examination the Diary Entry regarding the stabbing of the accused was admitted, but no such incident had taken place as there was no such alleged history in the Member of Legislative Council record of the accused; however, that aspect would be addressed later., Learned Additional Public Prosecutor further submitted that Witness 3 had proved the Control Room record regarding Diary Entries and no suggestion was made that they were manipulated; his deposition was not challenged. During cross‑examination, Witness 3 stated that whatever he had deposed in his examination‑in‑chief was on the basis of records. According to Exhibit PW3/A, the first call was made by Himanshu Aggarwal, and the name was automatically generated. Once Witness 3 stated that his deposition was based on records, the question of challenging his deposition would not arise. Witness 7, Himanshu Aggarwal, had deposed about making the call on the emergency number (100) from his number 9999707621, which was also confirmed by Witness 3. Witness 14 also proved that the said number belonged to Himanshu Aggarwal., Witness 7 stated that he was aware that the accused was contesting from the Aam Aadmi Party and that the Legislative Assembly elections were on 8 February 2020. He was aware that Kapil Mishra was contesting from the Bharatiya Janata Party. He knew that Madhav Prasad had remained a Councillor from the Bharatiya Janata Party for ten years in the area. He knew that Madhav Prasad, his son Sanjeev and other family members were supporting and campaigning for the Bharatiya Janata Party. He was aware that the accused resided at Jhuggi No. N‑9C/129, Lal Bagh. He was not aware that Sanjeev and his family members resided at C‑75 A, Second Floor, Gali No. 3, Mahendru Enclave. He stated that Mahendru Enclave and Lal Bagh were opposite each other. Thus, Witness 7 stated that he was aware of the political affiliations of the accused and the complainant., During further cross‑examination, Witness 7 stated that the spot of the incident was about half a kilometre from the spot where he was setting up a tent and table. He stated that when he reached the spot, he saw the accused lying on the road, surrounded by Aam Aadmi Party supporters who were trying to protect him. Bharatiya Janata Party persons were also present and attempting to strike, and one stone had hit his back. He made a call on the emergency number (100) after about 45–60 minutes of reaching the spot. He was aware that police arrived soon after, but there was no space in the Police Control Room, so it was decided that the accused would be taken to the hospital by ambulance, and an ambulance was called. He admitted that the ambulance arrived around 12:15 a.m. and took the accused to the hospital. Thus, Witness 7 supported the case put forth by the accused, stating that the accused was lying on the road, protected by Aam Aadmi Party supporters, and that the ambulance took him to the hospital at 12:15 a.m., During cross‑examination, Witness 12 stated that when Diary Entry No. 2A was handed over to him, he was at the Police Station. He was at the Police Station when Diary Entry No. 3A was handed over to him, and he was on the way to the spot when he was informed telephonically about Diary Entry No. 8A. He knew that the accused Akhilesh Pati Tripathi was a Member of Legislative Assembly from the Aam Aadmi Party and a candidate for the elections. He did not remember the exact date of the elections. He had perused Diary Entry No. 2A before leaving for the spot. He did not recall whether the exact contents of Diary Entry No. 2A were that Bharatiya Janata Party persons had stabbed the Aam Aadmi Party candidate. He did not know Madhav Prasad, who had remained a Councillor from the area. Thus, Witness 12 stated that he did not remember the exact contents of Diary Entry No. 2A, but the entry is on record and nothing material was extracted during his cross‑examination., During cross‑examination, Witness 15 stated that on 7 February 2020 at 11:35 p.m., upon receiving calls regarding a dispute, he reached the spot. At the time he received the call, he was in his office. Inspector Sudhir was the Station House Officer at that time. He was not informed that any call had been received at the Police Station that Bharatiya Janata Party persons had stabbed the Aam Aadmi Party candidate. Later, he learned about Diary Entry No. 2A and that it concerned Bharatiya Janata Party persons stabbing the Aam Aadmi Party candidate. Later, he learned that the accused was contesting from the Aam Aadmi Party. The Station House Officer informed him that the accused had also been injured in the incident and had been taken to Vinayak Hospital., Witness 16, who was the Station House Officer, was also cross‑examined regarding the calls. He stated that he was present in the Police Station when the calls were received on the intervening night of 7–8 February 2020. The calls concerned a quarrel and were received around 12:30 a.m. He admitted that there was one call that Bharatiya Janata Party persons had stabbed the Aam Aadmi Party candidate, but he could not say whether that was the first call. Two to three calls were received within a span of half an hour to one hour. He remained in the Police Station the entire night. Thus, it is not in dispute that several calls were received at the Police Station regarding the incident; one of the calls pertained to Bharatiya Janata Party persons stabbing the Aam Aadmi Party candidate (Diary Entry No. 2A), while another call pertained to Aam Aadmi Party MLA Akhilesh Pati Tripathi beating the caller (Diary Entry No. 3A)., It is the case of the prosecution that the complaint was made on 10 February 2020, which was registered via Diary Entry No. 54B, and the record also shows the same; on the basis of that complaint, the FIR was registered on 1 March 2020. Witness 5 was cross‑examined regarding making the complaint and he stated that he had given the complaint on 10 February 2020 (Exhibit PW5/A) after understanding everything and not at the instance of anyone. He and his brother Omveer had gone to the Police Station to make the complaint during the daytime. The first time he went he did not meet anyone; later he contacted again and perhaps met the Assistant Commissioner of Police. He stated that he had written Exhibit PW5/A by hand and then got it typed, but he did not remember when it was typed. Thus, Witness 5 reiterated that he had given the complaint (Exhibit PW5/A) on 10 February 2020 after understanding everything and not at the instance of anyone, although he did not recall when it was typed. He stated that he and his brother Omveer had gone to the Police Station to make the complaint, though at another point he stated that none of his family members went with him to the Police Station.
id_909	3	It was argued on behalf of the accused that Omveer had not been joined as a witness whereas the Learned Additional Public Prosecutor for the State had argued that there was no need to join Omveer as he was not an eye witness and had only accompanied the complainant. The Learned Additional Public Prosecutor submitted that it is not the case of the prosecution that Omveer was an eye witness or had any other role and he had merely accompanied the complainant when he went to the police station to make the complaint. As such, non‑joining of Omveer as a witness is of no consequence in the present case. Further, Prosecution Witness 5 had stated that he had met the Assistant Commissioner of Police on the same day on which he had made the complaint whereas the Assistant Commissioner of Police, examined as Prosecution Witness 15, had stated that he had met the complainant for the first time on 01.03.2020., Prosecution Witness 5 further stated that paragraph 7 of Exhibit PW5/A was in his handwriting and he had written it when he had gone to give the caste certificate. He did not remember when he had gone to give the caste certificate, nor whether it was after 20 days or 40 days. The Learned Counsel for the accused argued that there was interpolation in the complaint because the caste certificate was given only on 02.03.2020 whereas the complaint is dated 10.02.2020. The record shows that the caste certificate was handed over by the complainant to the police on 02.03.2020, as reflected from the seizure memo Exhibit PW5/C, and if the handwritten portion was added in the complaint when the caste certificate was given, it was clearly done at a later stage., During cross‑examination, Prosecution Witness 15 stated that the handwritten portion in Exhibit PW5/A was not written in his presence and he could not say who had written it. The same did not bear any initials. Prosecution Witness 16 was also cross‑examined regarding the complaint and he stated that the complaint Exhibit PW5/A was received at night and the handwritten portion was already written when it was received by him. He admitted that the same did not bear any initials or date and that there was overwriting in February 2020 at point X and at point Y where LC 145 was written. Thus, it cannot be disputed that the complaint had a handwritten portion which, as per the version of the complainant, was written on the day the caste certificate was handed over to the Investigating Officer, i.e., on 02.03.2020., Prosecution Witness 5 was also cross‑examined on mentioning the sections in the complaint and he stated that he had mentioned the sections in Exhibit PW5/A at the instance of one known person namely Sunil Kumar who resided in the village. He knew about Sections 506 and 34 of the Indian Penal Code and had read about one or two other sections; the others were told to him by Sunil Kumar. He was aware that passing caste‑related remarks was covered under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. He did not remember if he had given the complaint on the same day when the FIR was lodged. The Learned Counsel for the accused argued that Sunil Kumar had not been joined as a witness but there was no necessity for the same as he did not witness the incident or have any other role., Prosecution Witness 12 was cross‑examined regarding the complaint and he stated that he did not know who was accompanying Sanjeev when he came to the police station on 10.02.2020 or whom he met, and he volunteered that he did not come in his presence and the complaint was given to him by the Station House Officer. Thus, Prosecution Witness 12 was not present when the complainant came to the police station and he had volunteered that the complaint was given to him by the Station House Officer., During cross‑examination, Prosecution Witness 12 stated that he was aware that inquiry and investigation regarding an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act could only be done by the Assistant Commissioner of Police. The name of the then Station House Officer of Police Station Adarsh Nagar was Inspector Sudhir Kumar. The complaint was given to him and then taken back. He stated that there was no endorsement by him on the said complaint and denied the suggestion that no complaint was marked and handed over to him on 10.02.2020 nor that because of that reason there was no endorsement on Exhibit PW5/A or entry in the Daily Diary register., Prosecution Witness 16 stated that it came to his knowledge that there were allegations attracting the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act in the complaint. He knew that in case of such an offence inquiry could be done only by the Assistant Commissioner of Police. The same was not marked to the Assistant Commissioner of Police at that time as it was only after registration of the FIR that inquiry was done by the Assistant Commissioner of Police. He stated that he decided to get the FIR registered after discussing the matter with senior officers. This answers the contention raised by the Learned Counsel for the accused that on 01.03.2020 the FIR was suddenly registered based on the complaint dated 10.02.2020 without any further material., During cross‑examination, Prosecution Witness 15 stated that he did not conduct any inquiry in the present case prior to 01.03.2020 and volunteered that Sub‑Inspector Ravi Kumar was the Investigating Officer. Sub‑Inspector Ravi Kumar had not examined the complainant prior to 01.03.2020. The caste certificate was obtained after 01.03.2020 and, prior to that, the Station House Officer had verbally verified the caste with the Sub‑Divisional Magistrate, Model Town. Prosecution Witness 15 admitted that in a case under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, a Sub‑Inspector is not empowered to carry out the inquiry or investigation. Sub‑Inspector Ravi Kumar did not produce any record before him of any inquiry conducted by him or any statement recorded by him and volunteered that the case was registered on 01.03.2020. He also stated that Sub‑Inspector Ravi Kumar did not apprise him of the day‑to‑day progress in the case prior to 01.03.2020., The Learned Additional Public Prosecutor submitted that although the first Investigating Officer was a Sub‑Inspector, the complaint was marked to Sub‑Inspector Ravi Kumar for preliminary enquiry and when the FIR was registered, the investigation was conducted by the Assistant Commissioner of Police, who was examined as Prosecution Witness 15. It is true that Prosecution Witness 15 stated that he did not conduct any inquiry prior to 01.03.2020 and volunteered that Sub‑Inspector Ravi Kumar was the Investigating Officer, but there is nothing to show that Sub‑Inspector Ravi Kumar carried out any investigation in the present case. The investigation after the registration of the FIR on 01.03.2020 was carried out only as per the provisions of law by an Assistant Commissioner of Police. In fact, Prosecution Witness 12 stated that the complaint was given to him and then taken back and that there was no endorsement by him on the said complaint, which also shows that investigation was not carried out by him., It was then contended by the Learned Counsel for the accused that the Investigating Officer had not placed on record the material collected by Sub‑Inspector Ravi Kumar between 10.02.2020 and 01.03.2020 and that the enquiry by Sub‑Inspector Ravi Kumar was not made part of the judicial record. During cross‑examination, Prosecution Witness 15 had stated that Sub‑Inspector Ravi Kumar did not produce any record before him of any inquiry conducted by him or any statement recorded by him and that Sub‑Inspector Ravi Kumar did not apprise him of the day‑to‑day progress in the case prior to 01.03.2020. Even during cross‑examination of Prosecution Witness 12, nothing was shown to indicate that he had recorded the statement of any witness or done any investigation in the present case, and he was not present when the complainant went to the police station to give the complaint. During cross‑examination, Prosecution Witness 16 could not say if any written proceedings were carried out between 10.02.2020 and 01.03.2020 and volunteered that only Sub‑Inspector Ravi Kumar could tell. He stated that when the decision for registration of the FIR was taken on 01.03.2020, other than the complaint, no other document was produced before him by Sub‑Inspector Ravi Kumar. Thus, there is nothing to show that any record which would have been beneficial to the accused had been withheld, nor is there any material collected whose non‑production caused prejudice to the accused., It was also argued on behalf of the accused that there was an unexplained delay in lodging the complaint although the complainant was hale and hearty, a law student, had made a call on a 100 number, was discharged from hospital after two hours of conservative management, and had even gone to cast his vote on 08.02.2020, whereas the complaint was given only on 10.02.2020. This cast doubt on the motive of the complainant, who allegedly caused injuries to the accused, feared repercussions from the accused who was the sitting Member of Legislative Assembly, was violating the Election Code of Conduct and supporting the opposition party. The Learned Additional Public Prosecutor for the State submitted that the complainant had explained the delay in lodging the complaint by stating that he was not in a position to give his statement and that explanation was not challenged during cross‑examination., During cross‑examination, Prosecution Witness 12 stated that on 09.02.2020 he had spoken telephonically to the accused and the complainant and they had stated that they would give their complaint in writing later. He did not remember if he had asked Sanjeev on 09.02.2020 whether he was still in hospital or had been discharged. He did not go to Hindurao Hospital on 09.02.2020 or thereafter regarding the present case. He denied the suggestion that he had withheld material facts which did not suit the case of the prosecution., During cross‑examination, Prosecution Witness 15 stated that the complainant had already been discharged on 08.02.2020. The complainant did not approach him on 08.02.2020 for recording his statement. He met the complainant for the first time on 01.03.2020 when the investigation was marked to him. It did not come to his knowledge when the complainant gave his complaint for the first time in the police station and the complainant and the accused did not give their statements for several days. It is true that the complainant had stated that he was not in a position to give his statement, as contended by the Learned Additional Public Prosecutor for the State, and it may be that the complainant was not in a position to give his statement immediately in the hospital. However, as stated by Prosecution Witness 15, the complainant had already been discharged on 08.02.2020 but did not approach Prosecution Witness 15 on that date for recording his statement, and Prosecution Witness 12 had also stated that he spoke to the complainant telephonically on 09.02.2020 and the complainant said he would give his complaint in writing later, for which no reasons are forthcoming., The Learned Additional Public Prosecutor for the State submitted that there was no delay in lodging the complaint of quarrel and use of caste‑specific words as the Daily Diary entry was made on the intervening night of 07.02.2020 and 08.02.2020. Although the complaint may have been given on 10.02.2020 and the FIR was registered on 01.03.2020, that would not be regarded as a delay in making the complaint. Even if there was a delay in registration of the FIR, the complaint was already lodged and the case of the prosecution could not be discarded. It is true that the actual complaint was made by the complainant only on 10.02.2020 and thereafter the FIR was registered on 01.03.2020, with statements of Prosecution Witness 4 and some other witnesses recorded only on 21.03.2020, and no cogent explanation has been furnished why the complaint was not lodged till 10.02.2020., Prosecution Witness 1 proved the FIR and stated that one written complaint dated 10.02.2020 of Sanjeev Kumar was handed over to him by Inspector Sudhir Kumar for registration of the FIR, on the basis of which he lodged FIR No.84/2020, Exhibit PW1/A. During cross‑examination, Prosecution Witness 1 stated that he was the duty officer at the time the complaint was received and there was no one else to assist him. He admitted that when the FIR was registered, there was a kayani entry regarding the same which was Daily Diary No.43A in the present case. The entry was made by the typist, Woman Constable Seema, and he had perused the entry. The FIR was typed by Woman Constable Seema and volunteered in his presence. He stated that it was not mentioned in the FIR that it was typed by Woman Constable Seema and that the same was mentioned in the kayani entry which he had brought, Exhibit PW1/P1. The Learned Counsel for the accused objected on the ground that the entry was not supplied to him, was neither entered nor signed by the witness, and was not produced along with the register but as a single paper; however, the entry was produced when the witness was cross‑examined regarding the same., During further cross‑examination, Prosecution Witness 1 admitted that the kayani entry was made in Register No.2, which was in a bound form and duly paginated. He could not tell what entry was made before or after the said entry. He said that at present the entry was maintained in the CCTNS system. The names of the accused and the witness were not mentioned in the kayani entry; only the basis of the case was mentioned therein. He stated that Register No.8 was maintained as per the Punjab Police Rules and could not say if it was mandatory as per Chapter III of the same to mention the name of the accused and the complainant, and that they were not mentioned in the kayani entry. He said it was not his knowledge whether the present case had been investigated earlier or not and that he had received the complaint and registered the FIR. He stated that it was not his job to give a copy of the FIR to the complainant and that would be done by the Investigating Officer. He denied the suggestion that the FIR was not registered in the manner deposed by him. He did not have knowledge of computers; the computer was maintained by the CCTNS operator. The certificate under Section 65B of the Indian Evidence Act was not given by the CCTNS operator and he volunteered that it was given by him. He denied the suggestion that he was not authorized or competent to give the certificate under Section 65B of the Indian Evidence Act or that he had suppressed material facts not favouring the case of the prosecution. However, nothing could be extracted during the cross‑examination of the witness to cast any doubt on the FIR., Prosecution Witness 10 denied the suggestion that the complaint was first sent to Police Station Jahangirpuri and volunteered that it was received at Police Station Adarsh Nagar and then on 11.02.2020 it was sent to the Assistant Commissioner of Police, Jahangirpuri. He admitted that there was a cutting and instead of ‘PS’ it had been put as ‘ACP’, perhaps due to a clerical mistake; it was first written as ‘PS’ and the main entry in the next column was with red pen where ‘ACP’ was mentioned. He admitted that there were no initials where the cutting was made and volunteered that no initials are put in the register. Thus, Prosecution Witness 10 stated that the complaint was first received at Police Station Adarsh Nagar and then on 11.02.2020 it was sent to the Assistant Commissioner of Police, Jahangirpuri, and explained the cutting. He could not tell the time of the entry in the register and volunteered that he was not posted there at that time. He denied the suggestion that the entry had been made later to support the case of the prosecution., It is the case of the accused that Prosecution Witness 5 made material improvements in his testimony over his complaint Exhibit PW5/A. He was cross‑examined regarding the same and stated that in the complaint he had written that on 07.02.2020 at about 11.30 p.m. he had left from the office of his father (BJP office) B‑5, Mouji Wala Bagh, Jhandewalan Chowk, where his father had asked him to do cleaning work and he was confronted with Exhibit PW5/A wherein it was not so stated. He had stated in his complaint that there was a garbage bin about 500 metres from the office; he had kept the dustbin on his scooter and, along with his friend Raj Kishore, was going towards the garbage bin, which was not so stated in Exhibit PW5/A. He had stated that there were 30‑40 supporters, which was not so stated. He had stated that the accused said he was the son of Madhav Prasad, took him off the scooter, caught hold of his collar and gave him a slap, which was not so stated. He had stated that the main persons were Bansi Tripathi, Om Singh and Vishal Pandey, which was not so stated. He had stated that his uncle, Dr. Mohd. Shamim Khan, came to the spot and intervened; he was also pushed, which was not so stated. He had stated that the police came to the hospital to record his statement but his condition was not good, which was not so stated. Thus, there were material improvements in the testimony of Prosecution Witness 5 before the Court over his complaint Exhibit PW5/A., The prosecution case is that Prosecution Witness 5 was on a scooter when the alleged incident took place and the owner of the scooter, Ashib, was examined as Prosecution Witness 8. The Learned Counsel for the accused argued that the scooter was not taken into possession and there were contradictions between the version of the complainant and Prosecution Witness 8: the complainant had stated that Prosecution Witness 8 had handed over the scooter to him, whereas Prosecution Witness 8 had stated that he was not there and his brother had handed over the scooter to the complainant, and the complainant had also tried to cover up his stand that he had gone to college on the said day. The Learned Additional Public Prosecutor submitted that although the scooter was not taken into possession, the number and the documents of the same were there and the colour of the scooter was also known., Prosecution Witness 8 stated that the complainant Sanjeev was his friend and that the name of Sanjeev’s father is Madhav Prasad, a political figure who remained the Councillor from the area for ten years from the BJP. He was aware that Sanjeev resided in Mahendru Enclave but could not state the exact address. He knew Sanjeev for the previous five to six years and had never been to Sanjeev’s house at Mahendru Enclave. He stated that Sanjeev had one elder brother and one younger sister and resided in a joint family. He was not aware which party Sanjeev was supporting. During cross‑examination, Prosecution Witness 5 stated that he knew Ashib for ten to twelve years, whereas Prosecution Witness 8 had stated knowing him for five to six years., Prosecution Witness 5 was cross‑examined on taking the scooter from Prosecution Witness 8 and he stated that at the time of the incident his family had one scooter and one car. He did not remember the registration number of the scooter he had borrowed from Ashib. He went around 10 a.m. to Ashib’s house to take the scooter; Ashib worked in Wazirpur. He spoke to Ashib and then took the scooter without taking any receipt, as it was given out of friendship. There was no discussion about the duration for which he would keep the scooter; he said he had to go somewhere and therefore took it. He returned the scooter to Ashib’s house without taking any receipt. It was a white coloured scooter. He told Ashib about the incident on 07.02.2020. He admitted that he used to go to Ashib’s house less frequently., During further cross‑examination, Prosecution Witness 5 stated that on 07.02.2020 he had gone to college. He attended classes at VIPS from around 8.00 a.m. to 2.00 p.m. He said that what he had stated on 20.10.2022 about taking the scooter at 10:00 a.m. was correct and he did not remember correctly whether he had attended college on that day, though his college was open during those days. He denied the suggestion that, in order to cover up what he had stated on 20.10.2022, he had changed his statement after being confronted with his earlier statement., Prosecution Witness 8 was also cross‑examined on giving the scooter to Sanjeev and he stated that he was not aware how many vehicles were there with the family of Sanjeev.
id_909	4
id_909	5	During cross‑examination, Witness 15 (PW15) stated that he had not placed the call data record (CDR) of the mobile number of Shami Khan on record and volunteered that he was the eye‑witness. Thus, the CDR of the mobile of Witness 4 (PW4) had not been placed on record and PW15 volunteered that he was the eye‑witness., The Learned Additional Public Prosecutor for the State submitted that Witness 5 (PW5) had corroborated the allegations made in the complaint and had stated about his scooter being stopped and mentioned the specific words that were used. The witnesses were cross‑examined regarding the incident and during cross‑examination PW5 stated that he had gone to the office of the Bharatiya Janata Party on 07‑02‑2020 at about 4‑5 p.m. He did not meet his family members or other office bearers of the BJP at that time. There was no fixed time of opening and closing of the BJP office referred to by him. The said office belonged to them and he volunteered that they resided on the upper floor while the office was on the ground floor. He did not remember if he had stated in his complaint or his statement to the police that they used to reside on the upper floor and the office was on the ground floor and he was shown Exhibit PW5/A where it was not so recorded. He stated that the office of the BJP mentioned by him was their personal office and was not used by the office bearers of the BJP. He further stated that there was no employee in the said office and volunteered that his father used to sit there sometimes. Thus, PW5 had not mentioned in the complaint that they used to reside on the upper floor and the office was on the ground floor. It is pertinent that he had stated that he had gone to the office of the BJP and the said office belonged to them and it was their personal office and not used by the office bearers of the BJP. PW5 also admitted that Mahendru Enclave, where he had his residence, was a posh area having Kothis and volunteered that they mostly lived in Lal Bagh area which was not a posh area but nothing much turns on the same. He denied the suggestion that in order to cover up what he had stated on 20‑10‑2022 he had made up a new story that day of mostly residing in Lal Bagh area or that what he had stated was not correct., During further cross‑examination PW5 stated that he was not aware that, as per the Election Commission guidelines, no political party could have opened its office on 07‑02‑2020. He is now aware of the same. As such, even if the office was the personal office of PW5, he had stated it to be the office of the BJP and that he had gone to the same on 07‑02‑2020. Further, PW5 stated that from around 6 p.m. till 11:30 p.m. only his mother had come to the office and no office bearer of the BJP had come there. The office was used by his father for his personal work. The campaign material of the BJP was kept in the said office. It is significant that though PW5 stated that the office was used by his father for his personal work he also stated that the campaign material of the BJP was kept in the said office. It may be mentioned that even PW15 stated that the nearest BJP office from the spot was about 40 metres away and volunteered that the same was run by the complainant and his father. The said office was visible from the spot of the incident. Further, PW15 stated that he did not know the complainant Sanjeev Kumar prior to the present case. During investigation, he became aware that the complainant Sanjeev Kumar and his father Madhav Prasad supported the BJP and Madhav Prasad had been a councilor for ten years. He was not aware that even in the past there were complaints against the accused made by the BJP and Congress which were found to be false and unfounded. However, no such complaints have been proved in the present case., During further cross‑examination PW5 stated that he had started cleaning work in the office around 6‑7 p.m. He stated that there was no cleaning worker (safai karamchari) for cleaning work in the office. The Learned Additional Public Prosecutor argued that PW4 and PW5 had corroborated each other’s version that there was no one to clean the premises but nothing much turns on the same. The Learned Counsel for the accused argued that the office closed at 8.00 p.m. so there was no occasion for the complainant to be there at 11.00 p.m. It is seen that PW4 had stated during cross‑examination that the office closed at 8.00 p.m. and as such no reason is forthcoming why PW5 was there till 11.00 p.m. and in fact it was contended on behalf of the accused that as the elections were to be held on 08‑02‑2020, the office could not have been opened on 07‑02‑2020. During further cross‑examination PW5 stated that the waste which he was taking to throw was the campaign material and volunteered that his father had asked him to remove it. He was not aware that, as per the Election Commission guidelines, no person could carry campaign material in a public place. He is now aware of it. It is pertinent that it is the case of the accused that the complainant was distributing campaign material and when the accused objected to the same, the accused was beaten by the complainant and his supporters. From the cross‑examination of PW5 as well, it is evident that the waste which PW5 was taking to throw was campaign material. The Learned Additional Public Prosecutor argued that there was a difference between waste material and campaign material but it is significant that in the present case, no such material has been seized and therefore it cannot be said whether the material was waste or campaign material, even though the complainant himself stated that the waste which he was taking to throw was campaign material., During cross‑examination Witness 4 (PW4) stated that it did not come to his knowledge from where Sanjeev was coming at the time of the incident. The Learned Additional Public Prosecutor argued that the fact that PW4 had stated that it did not come to his knowledge from where Sanjeev was coming showed that he was an independent witness but no such inference can be drawn. PW4 further stated that he had seen the scooter of Sanjeev being stopped from a distance of 7‑8 metres. He did not see the scooter being stopped but he saw the quarrel which took place. As such, PW4 had not seen the scooter of the complainant being stopped but had seen the quarrel which took place but during his examination‑in‑chief he had stated that Sanjeev, whom he knew from before, was going on a scooter with his friend Raj Kishore; as they turned right from Jhandewalan Chowk, the accused Akhilesh Pati Tripathi was coming with around 20‑25 persons from the front; they stopped Sanjeev and started beating him. Further, in his statement under Section 161 of the Criminal Procedure Code (Exhibit PW4/P1), PW4 had specifically stated that on 07‑02‑2020 at about 11.30 p.m. he was standing at Jhandewala Chowk and saw that the son of Madhav Prasad, Sanjeev Kumar, who was with his friend Raj Kishore on a scooter, turned towards the right from Jhandewala Chowk and the accused, who was standing with his supporters on the road, came in front of the scooter of Sanjeev and stopped it. However, as per his testimony during cross‑examination PW4 had not seen the scooter of the complainant being stopped. The Learned Additional Public Prosecutor argued that PW4 had corroborated the version of the complainant that the complainant was on a scooter but it is seen that during cross‑examination, PW4 had stated that he had not seen the scooter being stopped. In these circumstances, there was also no question of any specific suggestion being put to PW4 that PW5 was not on a scooter. It is thus seen that PW6 had not supported the case of the prosecution regarding the incident as stated by PW5 though, as per the case of the prosecution, PW6 was accompanying PW5 at the time of the incident. PW4 had stated that he had not seen the scooter being stopped meaning thereby he was witness to the incident, if any, that happened after the complainant was already at the spot and there are contradictions between the testimony of PW5 and PW8 about the scooter being taken by PW5 from PW8., It is the case of the prosecution that the accused and his supporters had beaten the complainant and the accused had used caste‑specific words against the complainant and the witnesses were cross‑examined regarding the same. During cross‑examination PW4 stated that he had not asked Sanjeev who had abused him and what were the abuses and volunteered that he had himself witnessed the incident and heard the abuses. Only the accused was abusing Sanjeev. He did not hear the other persons with the accused abusing Sanjeev. In his presence, the accused abused Sanjeev once and volunteered that if he had abused Sanjeev earlier he could not say. When he reached the spot, the accused was beating Sanjeev. Thereafter, the accused had abused Sanjeev. Thus, PW4 had stated that when he reached the spot, the accused was beating Sanjeev and that in his presence the accused abused Sanjeev and he had also volunteered that he had himself witnessed the incident and heard the abuses. He further stated that he had remembered the words which were spoken in abuse to Sanjeev. He was aware that if caste‑related abuses are given it amounts to an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. As such, PW4 was also aware that if caste‑related abuses were given, it amounted to an offence under that Act., PW4 further stated that he had told the Investigating Officer that the accused and his men were abusing Sanjeev using caste‑specific words “inka baap bahut bada neta banta hai, chamaar ke bachey ko sabak sikhana hai” and he was confronted with the statement under Section 161 of the Criminal Procedure Code (Exhibit PW4/P1) wherein it was not so specifically recorded. He denied the suggestion that no caste‑related remarks were passed by the accused against Sanjeev. Thus, it is seen that in the statement Exhibit PW4/P1, PW4 had stated to the Investigating Officer that the accused and his men had pushed him and gave dirty caste‑specific abuses to the complainant and called him “chamar” but he had not used the specific words as stated by him during examination‑in‑chief. The Learned Additional Public Prosecutor for the State argued that even if the specific words were not mentioned in the statement under Section 161 of the Criminal Procedure Code, it did not matter as PW4 had stated them in the High Court but it is also relevant that if PW4 was aware of the specific words used, there is no reason why the same were not stated to the Investigating Officer. Further, PW4 stated that only the accused was abusing Sanjeev and he did not hear the other persons with the accused abusing Sanjeev and also that in his presence, the accused abused Sanjeev once and volunteered that if he had abused Sanjeev earlier he could not say., During cross‑examination PW5 stated that he reached the spot within one minute of leaving from the office. He could not say after how many minutes of reaching the spot the caste‑related words were used. He could not say if it was after five seconds or after two hours. Thus, PW5 could not say after how many minutes of his reaching the spot the caste‑related words were used. He stated that two to three persons who were with the accused also passed caste‑related remarks. First the accused had passed caste‑related remarks and then two to three other persons had passed caste‑related remarks. The persons with the accused had said different caste‑related remarks after adding to them. The other persons who had passed caste‑related remarks were known to him from before. He knew one person but did not know the other two persons. He had written the name of the person whom he knew in the complaint and also of the other two persons. He was confronted with Exhibit PW5/A where no such names were mentioned. Thus, PW5 had stated that apart from the accused, two or three other persons had also passed caste‑related remarks and they passed different caste‑related remarks after adding to them. PW5 had also stated about writing the name of the other persons who had passed caste‑related remarks in the complaint Exhibit PW5/A but he was confronted with Exhibit PW5/A where no such names were mentioned. Even in the examination‑in‑chief, PW5 had not stated about any other persons passing caste‑related remarks, nor stated the names of anyone. It is also pertinent that PW4 had stated that only the accused was abusing Sanjeev and he did not hear the other persons with the accused abusing Sanjeev whereas PW5 had stated about two to three other persons passing the remarks as well. Even in the complaint Exhibit PW5/A there was no reference to any other person passing caste‑related remarks., During further cross‑examination PW5 stated that as two to three lines were stated he remembered the same. The accused had passed caste‑related remarks two times and then the persons with him had also passed the remarks two‑three times. The accused had passed different caste‑related remarks on both occasions. He had remained at the spot for about half an hour more after the caste‑related remarks were passed. Thus, PW5 had stated that the accused had passed caste‑related remarks two times and that he had passed different caste‑related remarks on both occasions but during his examination‑in‑chief, he had only referred to one remark “iss chamaar ko maro, iska baap bahut bada neta banta hai, iss chamaar ko iski aukaat dikhao” and did not refer to any other remark and even did not say that the accused had passed different caste‑related remarks on two occasions. Even in the complaint, there was no reference to any other caste‑related remark being passed though there was an “and” between “chamaar ko maro, iska baap bahut bada neta ban raha hai” and “iss chamaar ko iski aukaat dikha do” and in the statement under Section 161 of the Criminal Procedure Code there was reference to only one such remark. Further, PW4 had stated that in his presence, the accused abused Sanjeev once and volunteered that if he had abused Sanjeev earlier he could not say. A perusal of the record thus shows that though in the complaint, the complainant had stated about the accused passing caste‑related remarks and even before the High Court, he had deposed regarding the same, there are discrepancies in the testimony of PW5 and of PW4 as to how many times the remarks were passed and whether they were passed only by the accused or by others as well. The Learned Counsel for the accused also pointed out that there was difference in the words which were stated by PW4 and PW5 to have been used by the accused. It is also surprising that though many persons were present at the spot, no witness other than PW4 has been examined who heard the accused passing caste‑related remarks against the complainant with PW6 turning hostile and as regards PW4, he had not mentioned the specific remarks in his statement to the Investigating Officer and it is also seen that he had close affiliation with the father of the complainant and there are discrepancies in the statement of PW4 and PW5 in this regard., The witnesses were also cross‑examined regarding hitting the accused and PW4 stated that he did not hit the accused. He did not attack any person who was present at the spot. He remained at the spot for about ten minutes. He could not say whether the accused was at the spot when he left the spot. He did not see Sanjeev hitting anyone. He did not come to know that the accused had sustained serious injuries or that he was unconscious and volunteered that he did not sustain any injury. He did not know how and when the accused left the spot. The accused was at the spot as long as he was there. When he left the spot, the accused was standing and volunteered that he said to him not to speak in the matter. He did not remember if he had stated to the Investigating Officer in his statement under Section 161 of the Criminal Procedure Code that the accused had told him not to speak in the matter. He stated that he was told by people that the accused used to reside in Jhuggi No. 9, Lal Bagh and volunteered that he had never gone there. Thus, PW4 had stated that the accused was at the spot as long as he was there though at one point, he had also stated that he could not say whether the accused was at the spot when he left the spot and he had volunteered that the accused did not sustain any injury which is contrary to the diary entries proved on record and the medical record. PW4 had also volunteered that the accused had said to him not to speak in the matter but the same was not there in the statement of PW4 to the Investigating Officer., During cross‑examination PW5 stated that he had hit the accused. He said that there was so much crowd that he could not say whom he had slapped. He denied the suggestion that due to his hitting, the accused had fallen on the ground, sustained serious injuries and became unconscious. Though PW5 denied those suggestions, he did state that he had hit the accused, again saying that there was so much crowd that he could not say whom he had slapped. It is pertinent that PW5 had not even clarified whether he had hit the accused in retaliation to the accused hitting him or abusing him and as such there is a possibility that the said statement of PW5 points to the fact that he himself could be the aggressor. It is also pertinent that PW4 had stated that he had not seen PW5 hitting anyone whereas PW5 himself had stated that he had hit the accused, again saying he could not say whom he had slapped. Further, PW5 stated that the accused was present at the spot when he was taken by ambulance to the hospital. However, that is contrary to the record because, as pointed out by the Learned Counsel for the accused, the diary entry regarding BJP persons stabbing an Aam Aadmi Party candidate is of 00.39.17 whereas the diary entry regarding the accused beating the caller and using caste‑specific words is of 00.46.44. Further, as per Exhibit PW3/A, the landing time was 00.11.47 and the name of the caller was stated to be Himanshu Aggarwal (PW7) who had stated about the accused being stabbed and it mentions that the accused was taken by ambulance. The landing time in respect of the second call was 00.34.41 and the caller was the complainant Sanjeev Kumar who was about the AAP MLA Akhilesh Pati Tripathi beating the caller and using caste‑specific words. Even as per the Medical Legal Certificate of the accused (Exhibit P‑1), he was brought to the hospital at 12.55 a.m. and the alleged history of assault was of about one hour back whereas per the Medical Legal Certificate of the complainant (Exhibit PW13/A), he was brought to the hospital at 1.25 a.m. Thus, not only the call regarding the accused being stabbed was prior in time but also the admission of the accused in hospital was much prior to the admission of the complainant. In these circumstances, it cannot be believed that the accused was present at the spot when the complainant was taken to the hospital by ambulance., It is the case of the accused that the complainant was campaigning and distributing election material in violation of the Model Code of Conduct as per which campaigning ended forty‑eight hours before the election and when the accused objected to the same, the complainant and his persons hit the accused causing him to fall down and become unconscious. During cross‑examination PW4 stated that he was not aware that campaigning ended forty‑eight hours before election as per the Model Code of Conduct or that distribution of campaign material was also prohibited. He stated that the campaign material was kept in the office and volunteered that it used to come from outside as well when needed. PW4 stated that it did not come to his knowledge that on 07‑02‑2020 Sanjeev was indulging in campaigning against the guidelines of the Election Commission or that Sanjeev was distributing campaigning material amongst the residents of Lal Bagh. He denied the suggestion that the same was in his knowledge. It is pertinent that PW4 did not deny but rather stated that it did not come to his knowledge that on 07‑02‑2020 Sanjeev was indulging in campaigning against the guidelines of the Election Commission or that Sanjeev was distributing campaigning material amongst the residents of Lal Bagh. PW4 further stated that it did not come to his knowledge that the accused who resided in the same area, when he came to know about the same he objected to it or that all of Sanjeev’s supporters who were associated with the BJP attacked the accused or that the accused was attacked by Sanjeev and others with the blunt side of a knife causing serious injuries to the accused or that as a result of the same the accused collapsed and became unconscious. He denied the suggestion that the same was in his knowledge. Again, it is pertinent that PW4 did not deny that when the accused objected, all of Sanjeev’s supporters who were associated with the BJP attacked the accused or that the accused was attacked by Sanjeev and others with the blunt side of a knife causing serious injuries to the accused or that as a result of the same the accused collapsed and became unconscious and he merely stated that it was not in his knowledge though at another point he had stated that the accused was at the spot when he had left from there. He stated that it was not in his knowledge that the workers of Aam Aadmi Party informed the police or that the police reached at the spot at 12 midnight or that as the injuries of the accused were serious, instead of removing him by police control room, an ambulance was requisitioned or that after the accused had been removed from the spot, in order to save himself Sanjeev made a false police control room call. He denied the suggestion that the same was in his knowledge., During further cross‑examination PW4 stated that he was aware that Sanjeev is a law student. He denied the suggestion that Sanjeev had manipulated the facts and lodged a false case in order to save himself or that no incident took place in his presence or that he was an introduced witness being a BJP worker and having cordial relations with Sanjeev and his family or that he was tutored by them or that he had deposed at their instance. He admitted that on the previous date, Shri Madhav Prasad had come to the High Court with him and that they, including Sanjeev, had gone back together. Thus, PW4 denied the suggestion that Sanjeev had manipulated the facts and lodged a false case but he admitted that on the previous date, the father of the complainant had come to the High Court with him and he and the complainant and his father had gone back together., PW5 was also cross‑examined along similar lines and he stated that it was not in his knowledge that the Election Code of Conduct had come into force from 06‑02‑2020 and that campaigning was prohibited. He is now aware that campaigning was prohibited forty‑eight hours before the election. PW5 stated that the election to the Vidhan Sabha was on 08‑02‑2020. He had voted on 08‑02‑2020. He had no responsibility allotted to him in the elections. PW5 stated that he was not aware as to whether the candidate he was supporting had won or lost. However, he was aware that the accused had won the elections. He denied the suggestion that on 07‑02‑2020 he was indulging in campaigning against the guidelines of the Election Commission or that he was distributing campaigning material amongst the residents of Lal Bagh or that the accused who resided in the same area, when he came to know about the same, he objected to it or that all of his supporters who were associated with the BJP attacked the accused or that the accused was attacked by him and others with the blunt side of a knife causing serious injuries to the accused or that as a result of the same the accused collapsed and became unconscious. He denied the suggestion that the workers of AAP informed the police or that the police reached at the spot at 12 midnight or that as the injuries of the accused were serious, instead of removing him by police control room, an ambulance was requisitioned or that after the accused had been removed from the spot, in order to save himself he made a false police control room call. He denied the suggestion that using his legal knowledge as a law student and as his father had been a councilor from a reserved constituency so the story of caste‑related remarks was made up or that he wanted to achieve the dual purpose of tarnishing the image of AAP thereby which was being supported by poor and lower‑caste persons. He denied the suggestion that as the BJP was the ruling party he got favour from police or that he had fabricated records in connivance with the police and created false documents. He denied the suggestion that he had placed false facts about the incident which had not taken place or that he had given a distorted version or that he was the person who was the aggressor and caused injuries. He denied the suggestion that, being the supporter of the ruling party in the centre and the police being under its control, the police did not take any action against him. Thus, PW5 denied the suggestion that on 07‑02‑2020 he was indulging in campaigning against the guidelines of the Election Commission but as noted above, it has come on record that the complainant was carrying campaign material though he had stated that it was waste material. He also denied the suggestion that the accused objected to it or that the accused was attacked by him and others with the blunt side of a knife causing serious injuries to the accused or that as a result the accused collapsed and became unconscious. He also denied the other suggestions that were put to him. At the same time, PW5 had stated about slapping the accused though he again said he did not know whom he had slapped and it has come in evidence that some incident had taken place on 07‑02‑2020., During cross‑examination PW15 stated that it was in his knowledge that as per the Election Code of Conduct, possession and distribution of campaign material was prohibited forty‑eight hours before the election. It did not come to his knowledge that the complainant was distributing campaign material in violation of the Election Code of Conduct. It did not come to his knowledge that the accused used to reside in the area of Lal Bagh or that when he objected to the complainant distributing election material then he was assaulted by the complainant and other BJP party workers. Thus, PW15 stated that it did not come to his knowledge that the complainant was distributing campaign material in violation of the Election Code of Conduct or that when the accused objected to the complainant distributing election material, then he was assaulted by the complainant and other BJP party workers and, as noted earlier, even the “waste” material which the complainant was carrying at the time of the alleged incident has not been seized in the present case. PW15 stated that he had inquired from the accused.
id_909	6	No case was registered in respect of causing injury to the accused, nor did he give any direction in that regard, and he volunteered that it was a case of simple injury. Thus, Witness 15 stated that he had carried out an investigation as to who had caused injury to the accused but he stated that no case was registered because it was a case of simple injury. The Learned Counsel for the accused argued that the accused was unconscious and therefore could not make a detailed report to the police about the incident. From the Member of Legislative Council of the accused Exhibit P-1, it is evident that the accused was unfit for statement, was drowsy and not obeying commands, and therefore could not have been expected to make a detailed report of the incident immediately. However, there is merit in the submission of the Learned Additional Public Prosecutor for the State that if no case was registered on the complaint of the accused, it was open to him to have taken recourse to other legal remedies, but there is nothing on record to show that the accused availed any legal remedies. Witness 15 also denied the suggestion that during the course of investigation it was revealed that the complainant Sanjeev Kumar was campaigning against the guidelines of the Election Commission or that the accused, who was present in the same area, after learning of the same, objected to it, or that on account of the same the complainant and supporters of the Bharatiya Janata Party attacked the accused and caused injury to his person, resulting in his collapse and unconsciousness. It was not in his knowledge that the complainant was a law student. He denied the suggestion that on instructions from higher‑ups he did not take any action against the complainant and supporters of the Bharatiya Janata Party despite knowing that they were involved in violation of the Election Code of Conduct and were guilty of causing serious injuries to the accused. He denied the suggestion that he had not fairly investigated the case or that he had withheld material evidence not favouring the prosecution. Thus, Witness 15 denied the suggestions that he did not take any action against the complainant and supporters of the Bharatiya Janata Party on instructions from higher‑ups, and even the accused had not availed any other remedy., During further cross‑examination Witness 15 stated that the accused was not present at the spot when he arrived. He did not know how the accused was removed to the hospital, whether by Police Control Room vehicle or by ambulance. It did not come to his knowledge from the record that when the Police Control Room reached the spot the accused was lying unconscious. He was shown Exhibit PW3/A and he stated that he had placed the same on record, read it, and later obtained it again and read it. He did not examine any officer from the Police Control Room who had first reached the spot and seen the accused lying there and in whose presence the accused was removed to the hospital in an ambulance. He stated that there was no need to examine the said witnesses. He denied the suggestion that he did not examine the witnesses because they would have demolished the entire prosecution story. It did not come to his knowledge that the complainant was the aggressor and had attacked the accused. As such, Witness 15 had not examined any officer from the Police Control Room and also stated that there was no need to examine the said witnesses. It was argued on behalf of the accused that deliberately no officer from the Police Control Room had been examined who could state that the accused was lying unconscious and being removed to the hospital in an ambulance, but the record exhibits that the accused was removed to the hospital by ambulance., During cross‑examination Witness 16 admitted that elections were to be held on 08‑02‑2020. He was not certain whether it was on 08‑02‑2020 but the elections were to be held in a day or so. He admitted that he was aware that the candidate of the Aam Aadmi Party was Akhilesh Pati Tripathi and that Kapil Mishra was contesting from the Bharatiya Janata Party. He was aware that the name of the father of the complainant Sanjeev Kumar is Madhav Prasad, but he was not aware if Madhav Prasad had remained a councilor for ten years from the said area. He was not aware whether Sanjeev Kumar was affiliated to any party. The sitting Member of Legislative Assembly at that time was the accused Akhilesh Pati Tripathi. Witness 16 stated that it was not in his knowledge that the Election Code of Conduct prohibited distribution of campaigning material 48 hours before the election. He said the same was in his knowledge but not whether anyone was violating it. It is pertinent that Witness 16 stated that it was not in his knowledge if anyone was violating the Election Code of Conduct and he did not outrightly deny that the same was being violated. The Learned Additional Public Prosecutor argued that the accused had nowhere stated that the complainant had distributed election material and there was no documentary evidence to prove it. It is true that there is no documentary evidence to prove that the complainant had distributed election material, but it was for the Investigating Officer to have seized the material which the complainant was allegedly going to throw as 'waste' material rather than the accused being expected to produce documentary evidence in that regard., Witness 16 was cross‑examined regarding the accused sustaining injuries and being taken to the hospital. He stated that the spot of the incident was about one kilometre from the Police Station. He stated that Sub‑Inspector Ravi Kumar did not give any confirmation call from the spot regarding the accused being stabbed or having sustained injury and volunteered that no one met at the spot. It came to his knowledge that accused Akhilesh Pati Tripathi was taken to Vinayak Hospital but he could not say if he was taken in an ambulance. He was not aware if he was taken to another hospital from Vinayak Hospital. He stated that in the morning at about 6–7 a.m., he came to know about the status of the case and that the accused had been taken to Vinayak Hospital. He went to Vinayak Hospital to see the accused. He did not record the statement of the accused and volunteered that was the job of Sub‑Inspector Ravi Kumar. He had only spoken to the accused about the injury but did not make an inquiry from him. Till that time, no case had been registered against the accused. He did not remember on what date and at what time he had gone to see the accused in the hospital. He did not remember whether he had gone the same day when Sub‑Inspector Ravi Kumar had briefed him about the case or the next day or on any other day. He did not remember if Sub‑Inspector Ravi Kumar had accompanied him to the hospital. He stated that his driver was with him but he did not remember his name. He stated that he kept meeting the accused after he met him in the hospital but he did not remember when he met him for the first time after meeting him in the hospital. Thus, Witness 16 stated that he had gone to Vinayak Hospital to see the accused but he did not record the statement of the accused and volunteered that was the job of Sub‑Inspector Ravi Kumar. He did not remember several other things that were asked of him and he also did not state anything specifically about the accused sustaining injuries., The witnesses were also cross‑examined regarding when the complainant met Witness 4 after the incident. Witness 4 stated that he did not go to the hospital where Sanjeev was taken. He met Sanjeev after two days of the incident at Sanjeev's house. He did not know when Sanjeev came back from the hospital. On 07‑02‑2020, he had met Madhav Prasad in the afternoon and on 08‑02‑2020 he met him again. He told Madhav Prasad that he had witnessed the incident in question. On 09‑02‑2020 when he met Sanjeev, it did not come to his knowledge whether Sanjeev had made any complaint or lodged any FIR. He did not even ask him about the same. He stated that he did not go to the hospital to see Sanjeev after the incident. Witness 5 also stated during cross‑examination that he did not meet Mohd. Shami on 08‑02‑2020. He did not go with him to the hospital. He met Mohd. Shami on 09‑02‑2020 and thereafter kept meeting him. As such, Witness 4 had stated about meeting the complainant and his father prior to the filing of the complaint on 10‑02‑2020 but he had not even asked the complainant whether he had lodged any complaint or FIR, which does not stand to reason as he knew the complainant and his family and it is his case that he had seen the incident take place., It was contended on behalf of the accused that Witness 4 was not an eye‑witness and had been introduced later. During cross‑examination Witness 4 stated that he had voted on 08‑02‑2020. He had seen police persons at the polling booth. He did not complain to the police persons about the incident in question nor even to the senior police officers who were visiting at that time. He did not make any representation or complaint to the police regarding the incident at any point of time and volunteered only his statement recorded by the Investigating Officer on 21‑03‑2020. He did not make any complaint or give any representation in any court or before any forum prior to 21‑03‑2020. As such, Witness 4 himself had not made any complaint to the police or any representation regarding the incident though he was stated to be an eye‑witness to the incident. During cross‑examination Witness 15 stated that he had read the complaint Exhibit PW5/A on the basis of which the FIR was registered. The name of Shami Khan was mentioned in the complaint. He was confronted with the complaint Exhibit PW5/A wherein the name of the witness Shami Khan was not mentioned as eye‑witness or otherwise. Thus, in the complaint Exhibit PW5/A the name of Witness 4 was not mentioned as an eye‑witness or otherwise. Witness 15 further stated that Sanjeev Kumar had informed him that Shami Khan was the eye‑witness of the incident on 21‑03‑2020. Prior to that Shami Khan had not given any complaint or representation to him or any other police officer. Thus, even as per Witness 15, Shami Khan himself had not given any complaint or representation to him or any other police officer prior to 21‑03‑2020 and it was also not in the knowledge of the police officers that Shami Khan was an eye‑witness to the incident. It is strange that the complainant did not state the presence of Shami Khan in the complaint, nor did Shami Khan make any complaint, nor was the name of Shami Khan told to the police officials till 21‑03‑2020, and as noted above he had gone to the police station only on being told by Madhav Prasad and his statement was recorded that day., During cross‑examination Witness 5 stated that Mohd. Shami never went with him to the police station. Police did not record any statement of Mohd. Shami in his presence. To his knowledge, Mohd. Shami did not give any representation, statement or complaint to the police. As such, Witness 5 also stated that to his knowledge, Witness 4 did not give any representation, statement or complaint to the police. During cross‑examination Witness 15 stated that he had examined Shami Khan in his office. He had not given any notice under Section 160 of the Code of Criminal Procedure to him and he had come with the complainant. It did not come to his knowledge that Shami Khan had remained the President of the Bharatiya Janata Party Adhyaksh Mandal for several years. During investigation the political affiliation of Shami Khan did not come to his knowledge and he also did not inquire about the same. He did not come to know during investigation that Shami Khan was a procured witness or that the complainant had brought him after tutoring him. Thus, Witness 15 stated that during investigation, the political affiliation of Witness 4 did not come to his knowledge. It is seen, as contended on behalf of the accused, that in the complaint dated 10‑02‑2020 Exhibit PW5/A on the basis of which the FIR was lodged, the name of Witness 4 was not mentioned as an eye‑witness to the incident and even Witness 4 had not taken any steps to make any complaint to the police himself though he had also stated about being pushed., The witnesses were then cross‑examined on the police coming to the spot and Witness 4 stated that the police had arrived in about 10–15 minutes after his reaching the spot. He did not call the police and volunteered that Sanjeev himself called the police after five minutes of his reaching the spot. Sanjeev was taken in an ambulance after the police came to the spot. When the police came, the fighting had stopped; however, talks were taking place. He stated that he had not called the police regarding the present incident. Immediately after the police came, they took Sanjeev to the hospital. He did not give any statement to the police at the spot when they arrived. Thus, Witness 4 stated that the police reached the spot in 10–15 minutes and that Sanjeev himself had called the police, and as per the record Sanjeev had made a call to the police though a prior call had already been made. However, Witness 4 did not give any statement to the police at the spot. He also stated that he was not medically examined though he had stated about being pushed., During cross‑examination Witness 5 did not remember after how much time of his making the call on the 100 number the police came to the spot. He could not say whether the police had come after half an hour or two hours. He stated that police had not taken him to the hospital and volunteered that an ambulance had taken him. Thus, Witness 5 also stated that he was taken in an ambulance to the hospital. He did not remember if he had met the police at the spot before he was taken to the hospital. His father was not present at home when he had gone to throw the garbage. His mother had accompanied him to the hospital. He did not remember after how much time of his mother coming to the spot the ambulance took him to the hospital; he could not say if it was after half an hour or one hour. Thus, Witness 5 stated that his mother accompanied him to the hospital though his mother has not been joined as a witness in the present case. He also stated that in his presence police had not examined any family member of his. To his knowledge no family member had given any representation, statement or complaint to the police. Thus, the family members of the complainant were present at the spot but they had not given any representation, statement or complaint to the police., During cross‑examination Witness 12 stated that he did not remember the exact time when he reached the spot but it was 10 to 15 minutes after receiving the call. He came to know the spot of the incident when he arrived, learning it from the public. Around 40–50 members of the public were present at the spot. He did not record the statement of any public person at the spot. He did not obtain the names and addresses of any public persons and volunteered that they left for the hospital. No relative or friend of Sanjeev was present in Hindurao Hospital; he volunteered that only Sanjeev was there. He remained in Hindurao Hospital for about two hours and in Vinayak Hospital for about one hour. Constable Sandeep remained with him throughout. He had not sent any formal communication to the duty officer from the hospital before recording DD No.14A. While returning from the hospital he went to the spot again. He stated that there were a number of jhuggis around the spot of the incident. He did not record the statement of any public person when he went to the spot the second time and volunteered that he had asked the public persons and the persons occupying the jhuggis but none gave their statement. He could not give the name of any public person or address of any jhuggi. Thus, Witness 12 stated that around 40–50 public persons were present at the spot but he did not record any statements or obtain any names or addresses. He also stated that no relative or friend of Sanjeev was present in Hindurao Hospital, although Witness 5 had stated that his mother had accompanied him to the hospital. Witness 12 had gone to the spot again while returning from the hospital but did not record any statements of public persons on the second visit., During cross‑examination Witness 15 stated that the operator, gunman and office staff had accompanied him when he reached the spot on 07‑02‑2020. The Police Control Room was not there when he arrived. He met the Sub‑Inspector in charge at the spot. Later the Sub‑Inspector informed him about the details and that the accused had been admitted in Vinayak Hospital. At the time he reached the spot, 15–20 persons were present. He did not record the statement of any person nor ask Sub‑Inspector Sudhir Kumar to record the statement of anyone. He did not note the name and address of any person who was present at the spot nor ask the Sub‑Inspector to do so. He stated that the Sub‑Inspector was already present at the spot when he arrived and remained there when he left. He remained at the spot for about half an hour. He did not inquire from any person at the spot but he issued a direction to the Sub‑Inspector to inquire as to how the incident had taken place. He used to meet the Sub‑Inspector routinely after 08‑02‑2020. The Sub‑Inspector discussed the medical status of the accused with him when he met him in routine after 08‑02‑2020 as also regarding the medical status of the complainant. Thus, Witness 15 stated that he met the Sub‑Inspector at the spot. He also stated that at the time he reached the spot 15–20 persons were present, though he did not record any statements or ask the Sub‑Inspector to record them. However, he had issued a direction to the Sub‑Inspector to inquire as to how the incident had taken place., During cross‑examination Witness 16 stated that there were other works so he did not go to the spot himself on receiving the call about the candidate of the Aam Aadmi Party being stabbed. Witness 16 stated that it came to his knowledge that after the incident several Police Control Rooms had reached the spot. It was not in his knowledge that the Police Control Room had reported that the Sub‑Inspector had come to the spot with his team at 12:16 a.m., and he volunteered that he had not gone to the spot. He denied the suggestion that he was deposing falsely in that regard or that he was present at the spot before 12:00 a.m., or that the accused was lying unconscious in his presence, or that in his presence it came to be known that Bharatiya Janata Party persons had caused injury to the accused. He denied the suggestion that there was a request to remove the accused to hospital not by the Police Control Room but by ambulance in his presence, or that in his presence the accused was removed in an ambulance. He denied the suggestion that, as it was not suiting the case of the prosecution, he changed his stand about being present at the spot as it was an important call, or that because of that reason he had given a vague and false reply that he was doing other work at the Police Station. Thus, Witness 16 stated that there were other works so he did not go to the spot himself on receiving the call about the Aam Aadmi Party candidate being stabbed and he denied the suggestions that he was indeed present at the spot. It is pertinent that Witness 15 had categorically stated about the presence of the Sub‑Inspector at the spot when he arrived, whereas Witness 16 stated that he had not gone to the spot, which casts doubt on the testimony of Witness 16. Further, if the Aam Aadmi Party candidate and the sitting MLA had reportedly been stabbed and the elections were to be held the next day, it cannot be believed that the Sub‑Inspector had other works which were more important because of which he did not go to the spot. There is also merit in the contention of the Learned Counsel for the accused that Exhibit PW3/A shows the presence of the Sub‑Inspector at the spot at 12:16:34 and, as such, it did not lie in the mouth of the Sub‑Inspector to say that he was not present at the spot., The witnesses were cross‑examined on going to the spot of the incident and during cross‑examination Witness 11 stated that he came to know about the registration of the case on the day it was registered, i.e., 01‑03‑2020. He did not remember the division in which the spot of the incident fell. He had been to the spot earlier as well. Sub‑Inspector Ravi was the in‑charge of the said division. He had not seen the house of the complainant earlier but he had seen the locality. Sub‑Inspector Ravi was not with them on 21‑03‑2020. He had not seen the house of the accused who had won the election and whose house was in the area of Lal Bagh. He had not joined the investigation in the present case prior to 21‑03‑2020. He came to know in the morning at about 9:00 a.m. that he had to join the investigation of the present case. They had gone to the house of the complainant at around 12:30 p.m. They remained at the spot for about one hour. He did not know the complainant from before. He did not know Mohd. Shami from before. He admitted that the spot of the incident is densely populated and there are a number of jhuggis in the area. The nearest jhuggi was around four to five steps from the spot of the incident. He did not note the name or address of any person residing in any nearby jhuggi. The Assistant Commissioner of Police had inquired from them. There was none other than the Assistant Commissioner of Police and him who were carrying out the investigation. The statements of witnesses were recorded in the office of the Assistant Commissioner of Police. He had typed the statements. He had not made any entry in the roznamcha register about going to the spot or thereafter returning from the spot. He denied the suggestion that he had been introduced as a witness in the present case as he was asked to do the writing/typing work. He stated that the witnesses remained in the office of the Assistant Commissioner of Police till about 5 p.m. He denied the suggestion that he had not disclosed material facts which did not favour the case of the prosecution. Thus, Witness 11 stated that he had not joined the investigation in the present case prior to 21‑03‑2020 and on that day they had gone to the house of the complainant at around 12:30 p.m. He stated that he did not know the complainant nor Mohd. Shami from before. It is pertinent that Witness 11 admitted that the spot of the incident was densely populated and there were a number of jhuggis in the area and he had stated that the Assistant Commissioner of Police had inquired from them though no such statements are on record., Witness 15 and Witness 16 were also cross‑examined on going to the spot of the incident after the day of the incident. During cross‑examination Witness 15 admitted that on 08‑02‑2020 the elections for the Vidhan Sabha were to be held. He was not aware who was the sitting MLA of that area falling within the jurisdiction of Model Town constituency. He was not aware of the result of the election held on 08‑02‑2020. The accused was contesting the elections on 08‑02‑2020 from the Aam Aadmi Party. He was aware that at present the accused is the sitting MLA. Prior to 08‑02‑2020 he did not know the accused at all. He came to know during investigation that the accused had won on an Aam Aadmi Party ticket twice prior to 08‑02‑2020. He stated that he had mandatory round‑the‑clock duty on 08‑02‑2020. He could not tell how far the nearest polling centre was from the spot of the incident and volunteered that there were 25–30 polling centres. Witness 15 further stated that he was on patrolling on 08‑02‑2020. He stated that after he left the spot he did not go to the spot specifically on 08‑02‑2020 but he was on round in the area and thereafter he visited the spot during investigation of the case on 21‑03‑2020. He might have visited the spot between 08‑02‑2020 and 21‑03‑2020 and volunteered that disputes keep happening in the area. Thus, Witness 15 stated that prior to 08‑02‑2020 he did not know the accused at all and he came to know during investigation that the accused had won on an Aam Aadmi Party ticket twice prior to 08‑02‑2020. He stated that he was on patrolling on 08‑02‑2020 though he did not go to the spot specifically on that date and thereafter visited the spot during investigation of the case on 21‑03‑2020. He might have visited the spot between those dates and volunteered that disputes kept happening in the area, but no investigation was carried out by him at the spot between 08‑02‑2020 and 21‑03‑2020., During cross‑examination Witness 16 stated that he had visited the spot of the incident but did not remember the date. He had gone to the spot prior to the registration of the present case. He was visiting the polling booths on the day of the election. Sub‑Inspector Ravi Kumar had told him about the spot of the incident. He did not record the statement of any witness from the neighbourhood at that time. It was a residential area. He admitted that the area is densely populated and there are a number of jhuggis in the area. He had inquired from the surrounding jhuggis and was told that the incident had taken place at night but no one gave details. He did not note the name or address of any of the persons from whom he had made inquiries. Thus, Witness 16 stated that he had visited the spot of the incident but did not record any statements of neighbourhood witnesses at that time. He also admitted that the area was densely populated, but no statement of any public witness other than Witness 4 and Witness 6 was recorded in the present case., The witnesses were also cross‑examined regarding the site plan and Witness 11 stated that the site plan was prepared by him on the instructions of the Assistant Commissioner of Police. The signatures of the witnesses or complainant were not taken on the site plan. He also did not sign the site plan. He denied the suggestion that they had never visited the spot of the incident or that the site plan was prepared sitting at the police station. Witness 15 did not remember if the signatures of any witness were obtained on the site plan Exhibit PW5/B and volunteered that it was prepared at the instance of Sanjeev Kumar. He was shown Exhibit PW5/B and it did not bear the signatures of any witness. He denied the suggestion that he had never inspected the spot or that the site plan was prepared sitting in the police station. Thus, the signatures of the complainant or any witness were not on the site plan, though there is also nothing specific to dispute the site plan and all the witnesses had stated about the spot of the incident., The Investigating Officer was cross‑examined on producing the Call Detail Records of the relevant persons on record. Witness 15 stated that he had not produced the Call Detail Records of all the relevant persons on record in the present case. He had stated about not producing the Call Detail Record of Witness 4 and Witness 6 and had said that was because they were eyewitnesses, though that cannot be regarded as a cogent explanation., The witnesses were then cross‑examined regarding the presence of other persons at the spot. Witness 4 stated that there were about 15 to 20 people at the spot, including people from the area as well as outsiders. He stated that the mother and brother of Sanjeev had come to the spot by about 10:45 p.m. Witness 6 also stated about the presence of several persons, though he said that 150–200 people had gathered at the spot and also mentioned the mother of Sanjeev coming to the spot. Witness 5 also stated during cross‑examination that the name of his mother is Sobhawati Devi. When the incident took place, his mother, brother and sister came to the spot.
id_909	7	His father and other family members had also come to the spot. He stated that after his family members came to the spot there was no physical fight and only exchange of abuses. Before his family members had come to the spot, the persons present there had first physically attacked him. After his mother and uncle had come to the spot no one hit him and he was made to move to a side. Thus, the witnesses had stated about the family members of Prosecution Witness 5 coming to the spot and Prosecution Witness 5 had also stated that after his family members came to the spot, there was no physical fight and no one hit him. However, it is seen that none of the family members of the complainant have been joined as witnesses in the present case., During further cross‑examination Prosecution Witness 4 stated that he did not know Balmiki Mandal, son of Guteswar Mandal, resident of Jhuggi No.25A/360 T, Lal Bagh; Bajrang Chowdhary, son of Satyadev Chowdhary, resident of Jhuggi No.25 A/190 T, Lal Bagh, Azadpur; Raj Deepak, son of Ashok Jha, resident of 25A/170 T, Lal Bagh, Azadpur; Rangna, wife of Ashok Kumar, resident of N‑9A/420, Lal Bagh, Azadpur; Sikandar Shah, son of Butan Shah, resident of Jhuggi No.N‑25/A‑125, Lal Bagh, Azadpur, but he knew Arif Khan, son of Rustam Khan, resident of C‑323, C Block, Lal Bagh, Azadpur. He did not see Arif Khan at the time of the incident. He denied the suggestion that he knew the said persons during campaigning or that they were present at the spot at the time of the incident. He stated that a crowd had collected at the spot and that he only knew the accused and Raj Khurana. Thus, Prosecution Witness 4 stated that he did not know the persons whose names were put to him except Arif Khan, and Arif Khan was not present at the spot. He further stated that he knew Raj Khurana and the accused among the persons who were present there. Raj Khurana was supporting the Aam Aadmi Party. He was aware that Raj Khurana resided in Rana Pratap Bagh and not Lal Bagh and that Raj Khurana had been a Bharatiya Janata Party Councilor., During cross‑examination Prosecution Witness 5 stated that he did not know Balmiki Mandal, son of Guteswar Mandal, resident of Jhuggi No.25A/360 T, Lal Bagh; Bajrang Chowdhary, son of Satyadev Chowdhary, resident of Jhuggi No.25 A/190 T, Lal Bagh, Azadpur; Raj Deepak, son of Ashok Jha, resident of 25A/170 T, Lal Bagh, Azadpur; Rangna, wife of Ashok Kumar, resident of N‑9A/420, Lal Bagh, Azadpur; Sikandar Shah, son of Butan Shah, resident of Jhuggi No.N‑25/A‑125, Lal Bagh, Azadpur, but he knew Arif Khan, son of Rustam Khan, resident of C‑323, C Block, Lal Bagh, Azadpur. He did not remember if Arif Khan was present at the time of the incident. He denied the suggestion that he knew the said persons during campaigning or that they were present at the spot at the time of the incident. Thus, Prosecution Witness 5 also did not know the said persons except Arif Khan, but he did not remember if Arif Khan was present at the time of the incident and he denied the suggestion that he knew the said persons during campaigning or that they were present at the spot at the time of the incident., During cross‑examination Prosecution Witness 15 stated that it did not come to his knowledge during investigation that Balmiki Mandal, son of Guteswar Mandal, resident of Jhuggi No.25A/360 T, Lal Bagh; Bajrang Chowdhary, son of Satyadev Chowdhary, resident of Jhuggi No.25 A/190 T, Lal Bagh, Azadpur; Raj Deepak, son of Ashok Jha, resident of 25A/170 T, Lal Bagh, Azadpur; Rangna, wife of Ashok Kumar, resident of N‑9A/420, Lal Bagh, Azadpur; Sikandar Shah, son of Butan Shah, resident of Jhuggi No.N‑25/A‑125, Lal Bagh, Azadpur and Arif Khan, son of Rustam Khan, resident of C‑323, C Block, Lal Bagh, Azadpur were present at the spot at the time of the incident. He denied the suggestion that all the said persons informed him about the incident after he reached there in the intervening night of 7th and 8th February 2020. He denied the suggestion that he had deliberately neither recorded himself nor directed anyone else to record the statement of the eye‑witnesses referred to., The Learned Additional Public Prosecutor argued that Defence Witness 1 had stated that her statement was recorded by police officers at the spot but no suggestion was put to Prosecution Witness 11 that public persons were present at the spot or that their statements were recorded at the spot, and the names of the said persons were not put to Prosecution Witness 11 during cross‑examination. It is pertinent that Prosecution Witness 11 had stated that he had not joined the investigation in the present case prior to 21 March 2020 and, as such, when Prosecution Witness 11 had not gone to the spot, the question of putting names of persons who were allegedly on the spot on the day of the incident does not arise., The accused, in support of his case that the complainant was campaigning against the guidelines of the Election Commission of India and that when he objected to the same, he was attacked by the complainant and supporters of the Bharatiya Janata Party, examined two defence witnesses. Defence Witness 1 deposed that she saw the complainant Sanjeev distributing election material; he told her that the elections were to be held on 08 February 2020 and that she should vote for the Bharatiya Janata Party; the accused Akhilesh Pati Tripathi came from the lane where he used to reside, i.e., near Mithla Park, and told Sanjeev not to do so and that the Election Code of Conduct was in place; there were ten to fifteen persons with Sanjeev; they did not agree to what the accused told them and they attacked him; one boy had a knife in his hand and he attacked the accused with the same; the accused fell unconscious; the Station House Officer also came to the spot and inquired from her and she told him what had happened; one ambulance came to the spot and took the accused., It was the contention of the Learned Additional Public Prosecutor for the State that the testimony of the defence witnesses could not be relied upon and Defence Witness 1 had deposed falsely about her children playing near Jhandewala Chowk at 11.30 p.m. During cross‑examination by the Learned Additional Public Prosecutor for the State, Defence Witness 1 stated that she did not know the address of the beauty parlour which she was running. The parlour was at a distance from her house but her house was close to the spot of the incident. The parlour was around ten lanes away from her house. Jhandewala Chowk was about four to five lanes from her house and she volunteered that the children were playing on the main road. She admitted that there were a number of jhuggi settlements between her house and the spot of the incident. She admitted that a vegetable market was also present in the area during the day. She stated that her children were playing at 11.30 p.m. because during the day, due to the market they did not have any place to play. She stated that she had come to call her children when she saw the incident. She had come alone and volunteered that her house was close to the spot of the incident. She denied the suggestion that she was deposing falsely that her children were playing at Jhandewala Chowk or that the distance between Jhandewala Chowk and her house was quite big so her children could not have been playing there at 11.30 p.m. However, Defence Witness 1 had stated that as there used to be a market during the day, her children used to play at the spot in the night. Defence Witness 1 stated that there was no park near her house and volunteered that there was a small park called Mithla Park near her house. She denied the suggestion that she was deposing falsely regarding the fact that there was no park near her house despite the fact that Mithla Park was only at a distance of seventy metres away from her house. She denied the suggestion that there was another park named M2K Park which was only one hundred metres away from her house and volunteered that the said park was located in Azadpur. She denied the suggestion that the location of the said park reflected that she created a false story regarding the playing of her children at the spot at odd hours. Thus, Defence Witness 1 had denied the suggestions put to her though she had herself volunteered that there was a small park called Mithla Park near her house., Defence Witness 1 was also cross‑examined on her political affiliation and she stated that she was supporting the Indian National Congress in the elections which took place on 08 February 2020. She was the Block President of the Congress. She produced a letter showing that she was a supporter of the Congress. She stated that she had passed the tenth standard. She had been the Block President of the Congress for almost six years. Defence Witness 1 produced a letter issued by District President Shri Kamlesh Choudhary showing that she was Secretary, Chandni Chowk District Mahila Congress. The same is Exhibit DW1/A. She admitted that the same was not dated, did not contain any reference number and the place for reference number was blank and also did not contain any stamp of anyone, and she volunteered that she had received it as it is. She denied the suggestion that Exhibit DW1/A was a fabricated document or that it had been falsely created by her as an afterthought to show that she was working with the Congress., Defence Witness 1 was then shown a photograph marked Y and she identified herself at point A in the same. She was shown photographs marked Y1 and Y2 and she identified herself at point A in those as well. She admitted that in photograph Y she was wearing a cap of the Aam Aadmi Party along with other persons and that there was a banner of the accused in the background and she volunteered that a camp had been put up by the Aam Aadmi Party and she had got the photograph clicked out of fun. She denied the suggestion that she was deposing falsely regarding the said fact, i.e., that she had got the photograph clicked out of fun and that the photograph Y was clicked during the campaigning for elections, i.e., before the date of the incident. She admitted that photographs Y1 and Y2 were clicked during the victory procession of the accused. She denied the suggestion that she was also celebrating the victory of the accused or that the same showed that she was a supporter of the Aam Aadmi Party and volunteered that the procession was passing from there and she stood there. The Learned Additional Public Prosecutor argued that the photographs were put to Defence Witness 1 which she admitted and which showed that she supported the Aam Aadmi Party. It is true that Defence Witness 1 had volunteered explanations for being in the said photographs and the photographs have also not been proved on record but she had identified herself in photographs Y, Y1 and Y2., During further cross‑examination Defence Witness 1 stated that she had not made any call to the police on seeing that the complainant was distributing election material in violation of the Election Code of Conduct and volunteered that it was not her job. However, if she had affiliation with any party, she would have brought it to the notice of higher officials if there was any violation of the Election Code of Conduct. She stated that she did not make a call to the police and volunteered that someone from the public had made a call and she was trying to save her children. She stated that she knew the complainant Sanjeev as he resided in Lal Bagh. He had one brother and a sister, whose names she could not tell. She denied the suggestion that Sanjeev was not distributing any election material or that she had deposed falsely in that regard at the instance of the accused. She stated that Sanjeev was at a distance of five steps from her when she saw him distributing the election material and volunteered that children were also playing there. She denied the suggestion that the complainant and his persons had not attacked the accused or that she had not witnessed any such incident or that she was an introduced witness at the behest of the accused or that she was not present at the spot at the time of the incident. She denied the suggestion that Sanjeev together with his friend Raj Kishore was going towards the garbage bin on a scooty, that the accused was standing with his thirty to forty supporters, that the accused stopped the scooty and took out the key of the scooty, and that thereafter the accused caught hold of the collar of the complainant and gave a slap and said “iss chamaar ko maro, iska baap bahut bada neta banta hai, iss chamaar ko iski aukat dikhao”. She denied the suggestion that the other persons who were accompanying the accused also started beating the complainant or that with the intervention of Mohammad Shami Khan and other persons including the family members of the victim, they could save the complainant., Defence Witness 1 further stated about her statement being recorded by the police at the spot but during cross‑examination she said that she could not provide a copy of the statement which the Station House Officer had recorded and volunteered that he was recording statements of everyone at the spot. She had not signed the statement which was recorded. She had not inquired from the police as to whether any action was taken on the basis of her statement which was recorded and volunteered that there was no need for her to inquire about the same. She denied the suggestion that she was deposing falsely regarding the fact that her statement was recorded at the spot, which is reflected from the fact that there was no such statement on the official record of the Court or that she was deposing falsely at the instance of the accused. Thus, no statement of Defence Witness 1 which was allegedly recorded at the spot has been produced on record. It may be mentioned that Defence Witness 1 could not be expected to produce the said statement on record as it is not the case that a copy of the statement, if recorded at the spot, would have been provided to her. The Learned Additional Public Prosecutor argued that the cross‑examination of Prosecution Witness 12 falsified the version of the accused that the statement of public persons was recorded at the spot and it is seen that Prosecution Witness 12 had stated about going to the spot but he did not record the statement of any public person when he went to the spot. At the same time, it is interesting that the Station House Officer had denied being at the spot though the record shows and even Prosecution Witness 15 had stated that the Station House Officer had gone to the spot on the day of the incident and Defence Witness 1 had stated about the Station House Officer inquiring from her at the spot., The accused further examined Defence Witness 2, Balmiki Mandal, who deposed that on 07 February 2020, he was returning after his work as a waiter; at about 11‑11.15 p.m. he reached Jhandewala Chowk and saw that Sanjeev Kumar was distributing campaigning material of the Bharatiya Janata Party; the accused Akhilesh Pati Tripathi came from Mithla Park and told the complainant that the Election Code of Conduct was in place and he should not distribute the pamphlets; on hearing the same, Sanjeev Kumar and his supporters attacked Akhilesh Pati Tripathi; one of the supporters of Sanjeev Kumar tried to attack Akhilesh Pati Tripathi with a knife, due to which he became unconscious and fell on the ground; after some time the Police Control Room came and the Station House Officer also came from the police station; after about ten minutes an ambulance came and took the accused to the hospital; the Station House Officer inquired from him and he noted something., During cross‑examination Defence Witness 2 stated that he had been working as a waiter since he was fourteen‑fifteen years old. He was working with Apni Rasoi for about two to three months prior to the date of the incident. He had no documentary proof of working with Apni Rasoi at the relevant time. He used to commute by battery rickshaw or on foot. On that day he had come by battery rickshaw. He was in possession of a mobile phone bearing number 8750220523 at the time of the incident and volunteered that the same was switched off at the relevant time as the battery had become exhausted. He denied the suggestion that he did not have any documentary proof of working with Apni Rasoi as he was not working there or that he had deposed falsely that his phone was switched off at the relevant time as the battery had become exhausted. He had never worked with the Public Works Department and volunteered that he was working with the Irrigation Department as a mali. He used to work as a waiter part‑time after six p.m. whenever there was work available. Thus, there is nothing to doubt that Defence Witness 2 was working as a waiter though he might have also worked with the Irrigation Department as a mali., During further cross‑examination Defence Witness 2 stated that there were seven to eight persons with Sanjeev. The Learned Additional Public Prosecutor argued that during his statement under Section 313 of the Criminal Procedure Code the accused had not stated that Defence Witness 1 and Defence Witness 2 were present at the spot but specific suggestions were put to witnesses regarding the presence of defence witnesses at the spot. It was also argued that Defence Witness 1 had stated that there were ten to fifteen persons with the complainant whereas Defence Witness 2 had stated that there were seven to eight persons, but both defence witnesses had stated that the complainant was accompanied by some persons. Defence Witness 2 stated that when he reached the spot, there was no police person and that police persons came later. He did not support any party in the elections. He knew Akhilesh Pati Tripathi as he was the MLA of the area. He had never had personal interaction with him but had seen him when he came to the area and volunteered that he voted for the Bharatiya Janata Party. He was shown a photograph marked Z and he stated that the person at point A was not him. He denied the suggestion that the person in the said photograph was him or that he was deliberately denying the same. He denied the suggestion that he used to work with the Public Works Department and that the accused had got him employed with the Public Works Department. He admitted that children played in Mithla Park even at night and volunteered that during the day there was a market., The Learned Additional Public Prosecutor submitted that during cross‑examination the diary entry regarding stabbing of the accused was admitted but no such incident had taken place as there was no such alleged history in the Medical Leave Certificate of the accused and the certificate did not show any stab injury. Different statements had been taken by the defence witnesses wherein Defence Witness 1 had stated that the accused was stabbed and Defence Witness 2 had stated that one boy tried to stab the accused. There was no proof that the stabbing incident had taken place and there was a contradiction in the testimony of Defence Witness 1 and Defence Witness 2: Defence Witness 1 had stated that one boy had a knife in his hand and he attacked the accused with the same, whereas Defence Witness 2 had stated that one of the supporters of Sanjeev Kumar tried to attack Akhilesh Pati Tripathi with a knife, causing him to become unconscious and fall on the ground. However, both defence witnesses had stated that a person attempted to attack the accused with a knife. Exhibit No.2A is to the effect that Bharatiya Janata Party persons had stabbed an Aam Aadmi Party candidate. The Learned Additional Public Prosecutor argued that there was nothing in the Medical Leave Certificate of the accused to show that he had sustained any stab injuries and the suggestion regarding the knife was falsified as there was no medical evidence and no corroborating evidence that a stab injury was sustained. The defence counsel for the accused argued that none of the witnesses had stated that the accused was attacked from the sharp side of the knife and that perhaps the knife did not penetrate due to the clothes the accused was wearing and that the accused was attacked from the blunt side of the knife; even if there were no injuries correlating to stab injuries, it would not make the defence of the accused doubtful. While no stab injuries are seen in the Medical Leave Certificate, bruises were seen over the upper abdomen and, as per the certificate, the accused was drowsy, not obeying commands and was declared unfit for statement. Thus, even if the accused had not sustained stab injuries, he had sustained injuries, and the complainant had also stated that he had hit the accused, though he again said he did not know whom he had hit in the crowd., Defence Witness 2 further stated during cross‑examination that he came to know about the case when he received the summons. He came to know what the case was about as he had witnessed the incident. He never came to know that the present case had been registered until he received the summons. He denied the suggestion that Sanjeev was not distributing any election material or that he had deposed falsely in that regard at the instance of the accused. He denied the suggestion that the complainant and his persons had not tried to attack the accused or that he had not witnessed any such incident or that he was an introduced witness at the behest of the accused or that he was not present at the spot at the time of the incident. He denied the suggestion that Sanjeev together with his friend Raj Kishore was going towards the garbage bin on a scooty and the accused was standing with his thirty‑forty supporters. He further denied the suggestion that the accused stopped the scooty and took out the key of the scooty or that thereafter the accused caught hold of the collar of the complainant and gave a slap and said “iss chamaar ko maro, iska baap bahut bada neta banta hai, iss chamaar ko iski aukat dikhao”. He denied the suggestion that the other persons who were accompanying the accused also started beating the complainant or that with the intervention of Mohammad Shami Khan and other persons including family members of the victim, the complainant was saved. He admitted that there were several ways to reach Mithla Park. He denied the suggestion that he had deposed falsely as he had been won over by the accused., From the material on record and the evidence adduced on behalf of the prosecution, it stands established that elections for the Vidhan Sabha were to take place on 08 February 2020 in which the accused was contesting from the Aam Aadmi Party. The complainant and his father were supporting the candidate for the Bharatiya Janata Party. In the intervening night of 07 February 2020 and 08 February 2020, an altercation had taken place. As submitted by the Learned Additional Public Prosecutor for the State, it was an admitted fact that the accused and the complainant were present at the spot and all the witnesses, whether of the prosecution or the defence, had deposed about the same. It is the case of the prosecution through the complainant that the incident took place when the complainant was going to throw waste in the dustbin and the accused and his supporters stopped his scooty and beat him and passed caste‑related remarks. On the other hand, as per the version put forth by the accused, the incident happened as the complainant was distributing campaign material in violation of the guidelines laid down by the Election Commission of India and when the accused objected to the same, the complainant and his supporters attacked the accused with the blunt side of the knife, causing the accused to sustain injuries, fall down and become unconscious. It is pertinent that both the complainant and the accused sustained injuries and were taken to hospital as has come in evidence and as seen from the Medical Leave Certificates Exhibit PW13/A of the complainant and Exhibit P‑1 of the accused., During cross‑examination Prosecution Witness 13 stated that regarding the treatment administered to Sanjeev, conservative management was done. He was not admitted to the hospital. He remained in the hospital for a maximum of two hours and volunteered that a CT scan was also done and the report was normal. Thus, the complainant was not admitted to the hospital and only conservative management was done in his respect., It is significant that during cross‑examination Prosecution Witness 5 stated that he had not stated to the doctor in Hindurao Hospital as to who had abused and injured him and volunteered that the same was not asked. A perusal of the Medical Leave Certificate Exhibit PW13/A shows that it is mentioned that there was an alleged history of physical assault near Jhandewala Chowk, Lal Bagh at approximately 12.00 a.m. on 08 February 2020 as told by the patient and the person who had brought him, but the name of the person who had assaulted was not stated., During cross‑examination Prosecution Witness 15 did not remember the date on which he obtained the Medical Leave Certificate but it was after 01 March 2020. He did not examine any doctor who had examined the complainant or the accused in the present case. He examined the accused in the present case. He was interrogated but no statement of the accused was recorded. Thus, the statement of the doctor was not recorded by the Investigating Officer but the Medical Leave Certificate of the complainant is on record and it shows simple injuries., It has further come on record that the complainant, even as per his own version, was going to throw campaign material which he stated was waste and, from his testimony, it is also clear that the office was open on 07 February 2020. Further, he had stated about hitting the accused though he again said he did not know whom he had slapped. It is also pertinent that Prosecution Witness 6, who was stated to be accompanying the complainant at the time of the incident, did not support the case of the prosecution except to the extent that some incident had taken place on the said date. Further, it has come on record that Prosecution Witness 4 was closely associated with the Bharatiya Janata Party and the father of the complainant and, as such, his testimony cannot be considered entirely reliable, especially as there are improvements in what he had stated in the Court over his statement under Section 161 of the Criminal Procedure Code and he had stated during cross‑examination that he had not seen the complainant coming on the scooty while in the statement under Section 161 he had not stated the caste‑specific words.
id_909	8	Further, he was not named in the complaint as an eye‑witness and his statement was recorded for the first time on 21 March 2020. Prior to that he had not made any complaint or representation to the police or any other authority and he had also stated that he had gone to the police station on being asked by the father of the complainant. There are contradictions between his testimony and that of PW5 regarding the number of persons who used caste‑related words and the number of occasions the said words were used. PW4 had stated that the accused had not sustained any injuries whereas the record shows that the accused had sustained injuries and was removed from the spot by an ambulance, which suggests that he was either not present at the spot or was not stating the true version., There are material contradictions in the testimony of PW5 and PW8 concerning the giving of the scooty and taking back of the scooty, and the scooty was never seized in the present case., Contradictions also arise between the statements of PW15 and PW16. PW15 stated that he had met PW16 at the spot, whereas PW16 stated that he had not gone to the spot. This appears unbelievable given that many people had gathered and, as per the report, the Aam Aadmi Party candidate had been stabbed. It would be natural for the Station House Officer to go there, especially as the Assistant Commissioner of Police was also present, and the record shows the presence of the Station House Officer at the spot., It is pertinent that despite many persons being present at the spot, no statement of any public person was recorded there. Even the family members of the complainant had come to the spot, but none of them was recorded as a witness, nor were they cited as witnesses or made any complaint. PW5 had not given any complaint on the date of the incident, although he was not even admitted in hospital, as evident from the testimony of PW13. He had gone to vote on 8 February 2020, so it cannot be said that he was unable to go to the police station, but the complaint was given only on 10 February 2020. There is no cogent explanation for the delay, and the FIR was registered only on 1 March 2020 even though the information regarding the incident was received by the police on the night of 7 February 2020 and 8 February 2020., PW5 named Bansi Tripathi, Om Singh and Vishal Pandey as the persons who were beating him, but as per the supplementary charge sheet, no evidence was found against those persons and their call data records showed that they were not at the spot, which falsifies to some extent the version put forth by the complainant. Apart from the present accused, no other person has been joined as an accused in the present case. It is also surprising that, other than PW6 who turned hostile and PW4 who cannot be regarded as an independent witness, no other witness has been examined who could support the version put forth by the complainant., The accused in the present case has been charged with offences under Sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The Learned Counsel for the accused submitted that the objective of the Act was to protect weaker sections who are socially, financially, educationally and economically weaker from atrocities and that the sections were not meant to be misused to achieve an ulterior motive, which was alleged in the present case. He argued that the complainant belonged to a fairly well‑offered family, was from a metropolitan city, owned a car, a scooter, multiple houses and offices, one of which was given to the Bharatiya Janata Party for operation, and was a law student residing in Delhi for decades. The counsel contended that the complainant was claiming protection of a law meant for weaker sections, which he was not, and that the alleged intimidation and threat did not fall within the ambit of the Act. While the law does not make a distinction on the basis of wealth, it must be examined whether the material on record makes out offences under the Act. The counsel also suggested a tendency of the opposition party to implicate Aam Aadmi Party persons and noted that the complainant and his father were supporting Kapil Mishra, the Bharatiya Janata Party candidate who had defected from the Aam Aadmi Party., The Learned Additional Public Prosecutor submitted that the words uttered by the accused satisfied the ingredients of Sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, as the accused intentionally insulted or humiliated the complainant knowing that he was the son of the ex‑Councilor and belonged to a Scheduled Caste, and the incident took place in public view where public persons were present and caste‑specific words were uttered in the presence of independent witnesses. The relevant provision is: ‘Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, (r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; (s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view shall be punishable with imprisonment for a term not less than six months but which may extend to five years and with fine.’ For the offences to be attracted, the accused should not be a member of a Scheduled Caste or a Scheduled Tribe., The Learned Additional Public Prosecutor argued that no suggestion was put to PW15 regarding the caste status of the accused, and the charge sheet contains a blank on the question of whether the accused was a Scheduled Caste or Scheduled Tribe. Therefore, there is no merit in the contention that the prosecution failed to prove that the accused did not belong to a Scheduled Caste or Scheduled Tribe., The second requirement for the offences under Sections 3(1)(r) and 3(1)(s) is that the victim must be a member of a Scheduled Caste or Scheduled Tribe. It is not disputed that the complainant is a Scheduled Caste (Chamar) and the relevant caste certificate is on record. Moreover, the accused, who was the sitting Member of Legislative Assembly of the area, knew that the complainant belonged to a Scheduled Caste, as the complainant’s father had been a Councilor for ten years from the Scheduled Caste category. No suggestion was put to PW5 that the accused was unaware of the complainant’s caste., It is essential that the incident take place in any place within public view. Jurisprudence holds that ‘place’ may be a private premises or a public place owned or leased by the government. It is not in dispute that the incident occurred at Jhandewala Chowk where a number of persons had gathered. The expression ‘public view’ means that the public is able to witness the offence. In Sanapala Uma Pathi v. State of Andhra Pradesh (23 September 2022), the court observed that the ingredient of public view was included to eliminate frivolous prosecutions and to discourage misuse of the provision., The Honourable Delhi High Court, in Daya Bhatnagar & Ors. v. State (2004), referred to the objects and reasons for enactment of the statute and held that the expression ‘public view’ must be interpreted to mean that the public persons present, however small in number, should be independent and impartial and not interested in any of the parties. In Balu v. State of Maharashtra (AIR 2006 Bom 251), it was held that ‘public view’ requires the presence of at least one independent person who can hear and see the utterances. In the present case, while it is not disputed that public persons were present, only two public witnesses were examined. PW6 turned hostile and was a friend of the complainant. PW4 had a close association with the complainant’s father and was addressed as ‘uncle’, and therefore cannot be regarded as an independent witness. Consequently, the requirement of an independent witness in public view is not satisfied., For the offences under Sections 3(1)(r) and 3(1)(s) to be attracted, there must be intentional insult or intimidation. The prosecution alleges that the accused intentionally insulted or intimidated the complainant with the words ‘Chamar ko maro, iska baap bahut bada neta ban raha hai’ and ‘iss Chamar ko iski aukat dikha do’. The Learned Counsel for the accused argued that the complainant, being aware of his background, could anticipate caste‑specific words and that the prosecution did not establish that the utterances were made with the intention to humiliate a person of a particular caste. In the examination in chief, the complainant stated that the accused Akhilesh Pati Tripathi was standing with about 30‑40 supporters, stopped his scooty, took the key, caught his collar, slapped him, and uttered the aforementioned caste‑related words, after which others also beat him. The complainant’s statement did not expressly indicate that the utterances were intended to insult or humiliate him because of his caste., The Learned Counsel for the accused relied on the Supreme Court of India judgment in Hitesh Verma v. State of Uttarakhand (2020) 10 SCC 710, where it was held that if the dispute is a property dispute, Section 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act would not be attracted. The court observed that the offence requires intentional insult or intimidation on the basis of the victim’s caste, and mere property disputes do not satisfy this requirement. In the present case, the incident arose out of political rivalry, as elections were scheduled for 8 February 2020 and the incident occurred on the night of 7 February 2020 and 8 February 2020. Therefore, it is difficult to accept the prosecution’s case that the accused uttered caste‑related remarks with the intention to humiliate the complainant., The Learned Additional Public Prosecutor submitted that the ingredients of the offences were fulfilled and that Section 341 of the Indian Penal Code was attracted because the complainant’s scooty was stopped, constituting wrongful restraint. However, there is no support for the claim that the scooty was stopped, given the contradictions in the testimonies of PW5, PW8 and PW6, and PW4’s statement that he did not see the scooty being stopped. Consequently, the offence under Section 341 of the Indian Penal Code cannot be said to be made out., The Learned Additional Public Prosecutor also argued that Section 506(1) of the Indian Penal Code was not attracted, as there is nothing to show that any alarm was caused to the complainant by the alleged threat ‘iss Chamar ko maro, iska baap bahut bada neta banta hai, iss Chamar ko iski aukat dikhao’., The Learned Additional Public Prosecutor submitted that the complainant had been beaten and the Medical Legal Certificate showed simple injuries, thereby attracting Section 323 of the Indian Penal Code. The Learned Counsel for the accused argued that it was the accused who was beaten. Nevertheless, the incident did occur and the Medical Legal Certificate of the complainant records simple injuries; the Medical Legal Certificate of the accused also records simple injuries, but that does not negate the offence. Accordingly, the offence under Section 323 of the Indian Penal Code is made out against the accused., In view of the above discussion, the prosecution has proved the guilt of the accused Akhilesh Pati Tripathi beyond reasonable doubt for the offence under Section 323 of the Indian Penal Code, and he is convicted for the same while being acquitted of the offences under Sections 341 and 506(1) of the Indian Penal Code and under Sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989., According to the judgment of the Honourable Delhi High Court in Karan v. State NCT of Delhi (Criminal Appeal No. 352/2020) dated 27 November 2020, the accused is directed to furnish an affidavit of his assets and income in the format of Annexure A appended to that judgment within ten days. The State is also directed to furnish an affidavit of expenses incurred by the prosecuting agency within seven days. The Victim Impact Report for the complainant Sanjeev Kumar is to be called for by the Learned Secretary‑II, Central District Legal Services Authority, Rouse Avenue Court Complex, Delhi, before the next date. Arguments on the point of sentence are to be put up on 13 April 2023.
id_91	0	Applicant: Sameer Khan. Opposite Party: State of Uttar Pradesh. Counsel for Applicant: Rajendra Prasad Mishra. Counsel for Opposite Party: G. A. Honourable Dinesh Kumar Singh, Judge. Heard learned counsel for the accused-applicant as well as Sri Ran Vijay Singh, learned Additional Government Advocate and perused the record., The present application under Section 439 of the Criminal Procedure Code has been filed seeking bail in First Information Report Case Crime No. 477 of 2020, under Sections 302 and 201 of the Indian Penal Code, Police Station Kotwali Nagar, District Barabanki., Accused-applicant is the husband/paramour of the deceased, whose body was found in two bags after being amputated and stuffed in two bags, which was thrown out in a secluded place. Accused-applicant used to work in Mumbai and he met the deceased there and, it appears that they started living as husband and wife. Accused-applicant brought the deceased to Lucknow and took a house of Rizwan Haque and started living with the deceased. Besides the confessional statement of the accused-applicant, on his pointing out, the car which was used for throwing the body of the deceased was recovered. The chopper by which the deceased body was cut into pieces and stuffed in two bags was also recovered on his pointing out. There are statements of witnesses on record, which would suggest that the accused-applicant and the deceased were living together., Considering the allegations, heinousness of the offence and the evidence available on record, the Honorable High Court of Uttar Pradesh does not find any ground to enlarge the accused-applicant on bail., Bail application is accordingly rejected., However, considering the fact that the accused-applicant has been in jail since 16 August 2020, the trial court of Barabanki is directed to expedite the trial proceedings and conclude the same, preferably within a period of one year., A copy of this order shall be forwarded to the trial court concerned for compliance.
id_911	0	Criminal Revisional Jurisdiction Appellate Side Present: The Hon'ble Justice Shampa Dutt (Paul) CRR 843 of 2020 Mithu Dash @ Bhuiya State of West Bengal & Anr. For the petitioner: Mr. Sanat Kumar Das, Mr. Satadru Lahiri, Mr. Safdar Azam. For the State: Mr. Subham Bhakat. For the Opposite Party No.2: Mr. Manas Kumar Das, Mr. Aritra Kumar Talukder. Heard on 12.07.2023 Judgment on 01.08.2023 Shampa Dutt (Paul), J., The present revision has been preferred praying for quashing of the proceeding being A.C. No. 4119/19 under Sections 420, 406, 467, 468, 471, 120B and 34 of the Indian Penal Code, 1860 presently pending before the learned Judicial Magistrate, 7th Court, Alipore, South 24 Parganas and all orders including order dated 30 July 2019 therein., The petitioner’s case is that she is the wife of Siddhartha Bhuiya (hereinafter referred to as ‘Complainant/Opposite Party’) and the marriage between the couple was solemnised in 1999. Due to tremendous torture since marriage it became impossible for her to tolerate any further and ultimately on or about 14 May 2019 she was compelled to lodge a complaint with the Officer‑in‑Charge, Lake Police Station, registered as Lake Police Station Case No. 78/19 dated 14 May 2019 for investigation, against the complainant/opposite party for commission of offences punishable under Sections 498A, 323, 324 and 506 of the Indian Penal Code, 1860., It is stated that as a counter‑blow to Lake Police Station Case No. 78/19 dated 14 May 2019, the complainant/opposite party/husband initiated the instant complaint case being A.C. No. 4119/19 under Section 200 of the Code of Criminal Procedure, 1973 on 22 July 2019 before the learned Additional Chief Judicial Magistrate Court, Alipore, South 24 Parganas against the accused/petitioner and others for commission of the alleged offences punishable under Sections 420, 468, 471, 120B and 34 of the Indian Penal Code, 1860. The mala fide of the complainant/opposite party will be palpable from the fact that he initiated the impugned criminal proceeding purposely suppressing his relation with the accused No.2 (his mother‑in‑law)., The complainant/opposite party, by misusing his status as a practising Advocate of Alipore Court, started filing false and fabricated criminal cases against the accused/petitioner and others with mischievous intention., Besides the instant case, pursuant to an application under Section 156(3) of the Code of Criminal Procedure, 1973 preferred by the complainant/opposite party before the learned Additional Chief Judicial Magistrate Court, Alipore, South 24 Parganas on 6 July 2019, a specific case being Canning Police Station Case No. 367/19 dated 12 July 2019 has also been registered for investigation under Sections 323, 420, 506 and 34 of the Indian Penal Code, 1860 against the accused/petitioner and others., On the same day, the complainant/petitioner preferred another application under Section 156(3) of the Code of Criminal Procedure, 1973. On the basis of said application, another criminal prosecution, being Canning Police Station Case No. 368/19 dated 12 July 2019, has also been registered for investigation under Sections 406 and 34 of the Indian Penal Code, 1860 against the accused/petitioner and others., On or about 5 September 2019, the complainant/opposite party preferred an application under Section 125 of the Code of Criminal Procedure, 1973 being ACM/786/19 before the learned Additional Chief Judicial Magistrate Court, Alipore, South 24 Parganas, praying for maintenance from the accused/petitioner. All of a sudden on 19 December 2019, the complainant/opposite party withdrew the said maintenance proceeding., On or about 9 September 2019 the accused/petitioner preferred an application under Section 27 of the Special Marriage Act, 1954, praying for dissolution of the marriage between the parties. The said proceeding is still sub‑judice before the learned District Judge, Alipore., The allegations in the present case are to the effect that the marriage between the accused/petitioner and the complainant/opposite party was solemnised in 1999 according to Hindu rites and customs. From the said wedlock, a male child was born on 6 November 2001 at Medical College & Hospital. Due to some misunderstanding and difference of opinion, the relation between the accused/petitioner and the complainant/opposite party worsened day by day and the accused/petitioner voluntarily left her matrimonial home on 1 June 2013 along with her minor son., After being aware of the many criminal prosecutions pending against her, she tried to engage an advocate on her behalf from the Bar Association of the court of the learned Chief Judicial Magistrate, Alipore, South 24 Parganas. Many lawyers refused to conduct the case of the accused/petitioner against the complainant/opposite party, since he is a practising Advocate of the Magistrates’ Court at Alipore and a member of the Bar Association of the said court., In connection with Canning Police Station Case No. 368/19 dated 12 July 2019, the complainant/opposite party also preferred an application praying for cancellation of bail granted to the accused/petitioner, which is still pending., During the end of December 2019, the advocate who was appearing for the accused/petitioner expressed his unwillingness to represent the accused/petitioner any further in any of the proceedings and thereby retired from the said cases. The learned advocate also returned all case‑related papers and documents to the accused/petitioner. At that juncture, it became literally impossible for the accused/petitioner to find any advocate to represent her in the pending proceedings., Ultimately, on or about 7 January 2020, she had to appear in person before the learned Additional Chief Judicial Magistrate Court, Alipore, South 24 Parganas in connection with Canning Police Station Case No. 368/19 dated 12 July 2019 and submitted a petition praying for a month’s time to engage a new advocate., The learned magistrate, while passing the impugned order dated 30 July 2019, issued a search warrant for the search/recovery of personal articles from the premises of the accused/petitioner, and thereby erred in law and fact, as in the petition of complaint there is no allegation that the accused/petitioner has custody of any article belonging to the complainant/opposite party., Mr. Sanat Kumar Das, learned counsel for the petitioner, has submitted that further continuance of the aforesaid proceeding is a glaring example of abuse of the process of the court, as the order of cognizance taken by the learned Additional Chief Judicial Magistrate Court, Alipore, South 24 Parganas suffers from non‑application of mind., The discretion available to the learned magistrate under Section 204 of the Code of Criminal Procedure, 1973 is a judicial discretion and the same has to be exercised in a judicious manner and not in an arbitrary manner as has been done in the instant case., The impugned proceeding as well as all orders passed in connection with the impugned proceeding are bad in law and are liable to be quashed and/or set aside., The petitioner has relied upon the judgment of the Supreme Court in Anupriya Pal & Ors. v. State of Uttar Pradesh & Anr., reported in (2019) 14 SCC 643, which held that on 1‑12‑2008, on account of harassment by Respondent 2 and demands for dowry, Appellant 1 made a complaint before the Family Conciliation Centre, Police Station at Betul, Madhya Pradesh. Respondent 2 appeared before the Conciliation Centre and assured Appellant 1 that he would not harass her and hence Appellant 1 agreed to reside in her matrimonial house. On 11‑7‑2009, Appellant 2 came to Bagpat and lodged a written complaint against Respondent 2 and his family members. On 18‑7‑2009 and 1‑8‑2009, Appellant 1 made complaints to the Conciliation Centre against Respondent 2 once again for ill‑treating and harassing her. However, Appellant 1 gave birth to their second child during the interregnum. On 5‑6‑2011, Appellant 1 moved to her parents' house and filed a maintenance petition under Section 125 of the Code of Criminal Procedure before the First Class Magistrate, Betul, seeking Rs 35,000 as monthly maintenance from Respondent 2. Only thereafter, as a counterblast, Respondent 2 filed first information report against the appellants before Police Station Murad Nagar for the offence of cheating and intentional insult with intent to provoke breach of the peace i.e. for offences punishable under Sections 420 and 504 of the Penal Code, 1860. On 2‑12‑2011, Appellant 1 lodged an FIR under Section 498‑A IPC and under the Protection of Women from Domestic Violence Act, 2005, at Police Station Ganz Chowki, Betul and the proceedings are stated to have been pending. On 3‑7‑2012, the learned Additional Chief Judicial Magistrate, Ghaziabad issued summons for trial of the accused (appellants herein) for the offences punishable under Sections 420 and 504 IPC based on the complaint lodged by Respondent 2 in Complaint Case No. 6714 of 2011. The appellants filed a petition under Section 482 CrPC before the High Court seeking quashing of proceedings which came to be dismissed by the impugned order. The court observed that the first information report lodged by Respondent 2 does not allege anything against Appellants 4 and 5 and that the major allegation is that Appellant 1 was not qualified with an MCA at the time of marriage but was wrongly represented as having completed her MCA. The court held that the proceedings were a classic case of revenge by the husband and were liable to be quashed. Accordingly, the petition was allowed and the order dated 31‑1‑2017 passed by the High Court was set aside. The proceedings in Complaint Case No. 6714 of 2011 pending before the Additional CJM Court, Ghaziabad are hereby quashed., Mr. Manas Kumar Das, learned counsel for the opposite party No.2, has submitted that there is sufficient material on record against the petitioner to proceed towards trial, and as such the revision is liable to be dismissed., The case of the complainant/opposite party No.1, husband against the petitioner (wife) in the petition of complaint is as follows: that due to misunderstanding and difference of opinion and without any reason, the petitioner voluntarily left her in‑laws’ house on 14 May 2018 with one piece gold bangle weighing about 2 bhari valued at Rs 60,000, one gold‑covered loha weighing about 1 bhari valued at Rs 50,000, two pieces of gold‑covered pala weighing about 1 bhari valued at Rs 30,000, one pair of gold‑covered Sankhabadhana churi valued at Rs 30,000, two mobile phones (iPhone 7 Plus valued at Rs 47,000 and Vivo phone valued at Rs 13,000) purchased from South City Mall, one gold chain for men weighing about 1 bhari valued at Rs 30,000 and one necklace weighing about 1.5 bhari valued at Rs 50,000. The petitioner, in collusion and conspiracy with the accused No.2, wrongfully detained the said gold ornaments and mobiles in her custody and the husband repeatedly requested their return. The husband was abused in filthy language, physically and over telephone. He lodged a General Diary No. 1089 dated 26 June 2019 and a written complaint addressed to the Officer‑in‑Charge, Canning Police Station on 26 June 2019, and also informed the SP, Banipur Police District on 27 June 2019, but the police did not take any step against the accused persons., From the materials on record, it appears that the petitioner allegedly left her matrimonial home after 29 years of marriage with the ornaments and accessories described, which are traditionally worn by a Bengali married woman, and two mobile phones. These items cannot be the basis of a criminal case between a married couple after 29 years of marriage. Further allegation is that the complainant was abused in filthy language by the petitioner/accused persons., These allegations clearly do not make out any case as alleged under Sections 420, 406, 467, 468, 471, 120B and 34 of the Indian Penal Code against the petitioner and thus this is a fit case where the inherent powers of this court should be exercised for ends of justice, to prevent abuse of process of the law/court., The revisional application being CRR 843 of 2020 is allowed., The proceeding being A.C. No. 4119/19 under Sections 420, 406, 467, 468, 471, 120B and 34 of the Indian Penal Code, 1860 presently pending before the learned Judicial Magistrate, 7th Court, Alipore, South 24 Parganas as well as all orders including order dated 30 July 2019, is quashed., The petitioner (wife) is also informed that she can avail of legal aid including a legal aid counsel by approaching the respective legal services authority to conduct the proceedings on her behalf., All connected applications, if any, stand disposed of., Interim order, if any, stands vacated., Copy of this judgment be sent to the learned Trial Court for necessary compliance., Urgent certified website copy of this judgment, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
id_912	0	In the Special Judge (Prevention of Corruption Act), Central Bureau of Investigation-20, Rouse Avenue District Court, New Delhi, Case Number DLCT11-000233-2021, in the matter of: Central Bureau of Investigation versus Mahesh Kumar Sharma & Others (Respondent/Accused). In the instant application, a very interesting question arose on the point of power of the investigating agency (Police) to seek the password (user ID) of the computer system seized from the accused along with the password of a Tally Software which was being used by the accused in the said computer system. Notice of the said application was served upon the accused and a reply was filed opposing the present application. I have heard arguments at length from Shri Pramod Singh, Learned Public Prosecutor for CBI and Shri Aditya Wadhwa, Learned Counsel for the accused., Detailing of the entire facts of the present case is not necessary and it is sufficient to state that during the course of investigation, a computer system was seized by the CBI from the custody of the accused and when it was sent to CFSL agencies, the data of the said computer system could not be obtained for want of password and user ID. Accordingly, the present application has been filed seeking a direction to the accused to provide the same., The Learned Public Prosecutor for CBI submitted that such direction can be given to the accused as he was released on bail on the condition that he will cooperate in the investigation as and when required and there is no violation of any right of the accused in this regard as the said information has been sought for a fair investigation. In this regard, he heavily relied on the judgment of the Hon'ble Karnataka High Court, namely, Virendra Khanna versus State of Karnataka, decided on 12.03.2021 in Writ Petition No. 11759 of 2020 where it has been held that the investigating agency has a right to seek password and biometrics from an accused for accessing/opening his computer system and mobile phone which were seized during investigation and no constitutional right of the accused is violated., The Learned Counsel for the accused raised various objections on the maintainability of the present application on the following grounds: (i) The present application has been filed without indicating any specific provision of law and this Special Judge (Prevention of Corruption Act), Central Bureau of Investigation-20, Rouse Avenue District Court, New Delhi has no inherent power to give any such direction and there is no specific provision under law which enables the Investigating Officer or this court to pass a direction. (ii) Section 91 of the Criminal Procedure Code cannot be invoked by the Investigating Officer or this court as it does not apply to an accused in view of various judgments of the Superior Courts. (iii) The accused has a right to maintain silence as per Article 20(3) of the Constitution of India as well as Section 161(2) of the Criminal Procedure Code, and therefore the accused cannot be compelled to give his password which would tantamount to giving self‑incriminating testimony. (iv) The judgment passed in Virendra Khanna versus State of Karnataka by the Hon'ble High Court of Karnataka as relied upon by the prosecution is not binding on this court on account of territorial limitation and even otherwise it is a judgment per incuriam. (v) The said computer system may contain private data of the accused and if it is revealed to the investigating agency, it may interfere with the right of privacy of the accused. (vi) If the accused refuses to provide such information, no adverse inference can be drawn against him., In support of the aforesaid objections, the Learned Counsel for the accused relied on the following laws/precedents: 1) King Emperor versus Khwaja Nazir Ahmed, ILR 26 Lahore 1 (Privy Council). 2) S.N. Sharma versus Bipen Kumar Tiwari & Others. 3) Sakiri Vasu versus State of Uttar Pradesh & Others (2008) 2. 4) Dharmeshbhasi Vasudevbhai & Others versus State of Gujarat & Others (2009) 6 Supreme Court Cases 576. 5) Balachandran versus State of Kerala, 2009 Supreme Court Online Kerala 6544. 6) Nandini Satpathy versus P.L. Dani & Another (1978) 2. 7) Proceedings of the Indian Legislative Council, Vol. 59 (27 August 1920). 8) Law Commission of India, 87th Report on Identification of Prisoners Act, 1920 (1980). 9) Ram Sunder versus State of Uttar Pradesh, 1997 Supreme Court Online All 241. 10) State of Bombay versus Kathi Kalu Oghad (1962). 11) Smt. Selvi versus State of Karnataka (2010) 7. 12) State of Uttar Pradesh versus Ram Babu Mishra. 13) Ritesh Sinha versus State of Uttar Pradesh & Another. 14) State of Punjab & Others versus Surinder Kumar. 15) State of Uttar Pradesh & Another versus Johari Mal (2004) 4. 16) Anil Kumar Jain versus Maya Jain (2009) 10 Supreme Court Cases. 17) State of Gujarat versus Shyamlal Mohanlal Choksi (1965) 2 Supreme Court Reports 457 (5JB). 18) M.P. Sharma versus Satish Chandra, 1954 Supreme Court Reports. 19) V.S. Kuttan Pillai versus Ramakrishnan & Another. 20) K.S. Puttaswamy versus Union of India (2017) 10. 21) State of Madhya Pradesh versus Ramesh (2011) 4 Supreme Court Cases 786. 22) Amrit Singh versus State of Punjab (2006) 12 Supreme Court Cases. 23) Official Liquidator versus Dayanand & Others (2008). 24) R. Thiruvirkolam versus Presiding Officer & Another. 25) V. Kishan Rao versus Nikhil Super Specialty Hospital & Another., On the other hand, the Learned Public Prosecutor for CBI relied on the following cases: 1) Virendra Khanna versus State of Karnataka, Writ Petition No. 11759/2020, Hon'ble Karnataka High Court. 2) P. Gopalakrishnan Alia Dileep versus State of Kerala, Crime No. 6/2022 dated 29.01.2022. 3) Ajay Bhardwaj versus Union of India & Others, Investigation Appeal No. 82439/2020, Hon'ble Supreme Court of India., Before considering the merits of the present application, it is important to know the historical background and the statutory provisions relating to powers of the investigating agency (including this Special Judge (Prevention of Corruption Act), Central Bureau of Investigation-20, Rouse Avenue District Court, New Delhi) to seek such information from an accused and the right of the accused to maintain silence or to refuse to provide such information to the Investigating Officer or whether he can be compelled by the Investigating Officer or this court to give such information. From perusal of a large number of cases as cited by the Learned Counsel for the accused and the cases cited by the Learned Public Prosecutor for CBI, this Special Judge (Prevention of Corruption Act), Central Bureau of Investigation-20, Rouse Avenue District Court, New Delhi finds that the detailed historical background of the aforesaid rival rights of the State (Police Agency) and the individual accused has been articulated by the three‑Judge Bench of Hon'ble Justices Shri K.G. Balakrishnan, R.V. Raveendran and J.M. Panchal of the Supreme Court of India in the case of Selvi versus State of Karnataka (2010) 7 Supreme Court Cases 263. In the said case, the issue of narco‑analysis/lie‑detection test of the accused (with or without consent) was dealt with. The relevant observations elucidating the principles of law are reproduced as under:, Historical Background & Observations: 87. The interrelationship between the right against self‑incrimination and the right to a fair trial has been recognised in most jurisdictions as well as international human‑rights instruments. For example, the United States Constitution incorporates the privilege against self‑incrimination in the text of its Fifth Amendment. The meaning and scope of this privilege has been judicially moulded by recognising its interrelationship with other constitutional rights such as the protection against unreasonable search and seizure (Fourth Amendment) and the guarantee of due process of law (Fourteenth Amendment). In the International Covenant on Civil and Political Rights, 1966, Article 14(3)(g) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt. In the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Article 6(1) states that every person charged with an offence has a right to a fair trial and Article 6(2) provides that everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law. The guarantee of presumption of innocence bears a direct link to the right against self‑incrimination since compelling the accused person to testify would place the burden of proving innocence on the accused instead of requiring the prosecution to prove guilt. 90. Undoubtedly, Article 20(3) has an exalted status in our Constitution and questions about its meaning and scope deserve thorough scrutiny. In one of the impugned judgments, it was reasoned that all citizens have an obligation to cooperate with ongoing investigations. For instance reliance has been placed on Section 39 of the Criminal Procedure Code which places a duty on citizens to inform the nearest Magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in the section. Attention has also been drawn to the language of Section 156(1) of the Criminal Procedure Code which states that a police officer in charge of a police station is empowered to investigate cognisable offences even without an order from the jurisdictional Magistrate. Likewise, our attention was drawn to Section 161(1) of the Criminal Procedure Code which empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. While the overall intent of these provisions is to ensure the citizens' cooperation during the course of investigation, they cannot override the constitutional protections given to the accused persons. The scheme of the Criminal Procedure Code itself acknowledges this hierarchy between constitutional and statutory provisions in this regard. For instance, Section 161(2) of the Criminal Procedure Code prescribes that when a person is being examined by a police officer, he is not bound to answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture., In an academic commentary, Leonard Levy (1969) had pointed out that the doctrinal origins of the right against self‑incrimination could be traced back to the Latin maxim nemo tenetur seipsum prodere (i.e. no one is bound to accuse himself) and the evolution of the concept of due process of law enumerated in the Magna Carta. 103. The concerns about the voluntariness of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, the right against self‑incrimination is a vital safeguard against torture and other third‑degree methods that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such shortcuts will compromise the diligence required for conducting meaningful investigations. During the trial stage, the onus is on the prosecution to prove the charges levelled against the defendant and the right against self‑incrimination is a vital protection to ensure that the prosecution discharges the said onus., A similar view was articulated by Lord Hailsham of St Marylebone in Wong Kam‑ming v. R. [1980 AC 247 : (1979) 2 WLR 81 : (1979) 1 All ER 939 (Privy Council)], that any civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill‑treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra‑judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary., Justice V.R. Krishna Iyer echoed similar concerns in Nandini Satpathy [(1978) 2 Supreme Court Cases 424 : 1978 Supreme Court (Criminal) 236]: \Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic ante‑chamber of a police station. In the long run, that investigation is best which uses stratagems least, that policeman deserves respect who gives his fists rest and his wits restlessness. The police are part of us and must rise in people's esteem through firm and friendly, not foul and sneaky strategy.\, The relationship between Section 27 of the Evidence Act and Article 20(3) of the Constitution was clarified in Kathi Kalu Oghad [AIR 1961 Supreme Court 1808 : (1961) 2 Criminal Law Journal 856 : (1962) 3 Supreme Court Reports 10]. It was observed by Justice Jagannadhadas that information given by an accused person to a police officer leading to the discovery of a fact which may or may not be incriminatory has been made admissible in evidence by that section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character as far as the giver of the information is concerned. If the self‑incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and will not be hit by the provisions of clause (3) of Article 20 of the Constitution for the reason that there has been no compulsion. Hence, the mere fact that the accused person, when he made the statement in question, was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was in fact exercised. In other words, it will be a question of fact in each case to be determined by the court on weighing the facts and circumstances disclosed in the evidence before it., Point (i): The present application has been filed without indicating any specific provision of law and this Special Judge (Prevention of Corruption Act), Central Bureau of Investigation-20, Rouse Avenue District Court, New Delhi has no inherent power to give any such direction and there is no specific provision under law which enables the Investigating Officer or this court to pass a direction. Point (ii): Section 91 of the Criminal Procedure Code cannot be invoked by the Investigating Officer or this court as it does not apply to an accused in view of various judgments of the Superior Courts., No doubt, the CBI did not mention any specific provision of the Criminal Procedure Code in the present application seeking password from the accused, but it is a settled proposition of law that in the absence of citing any specific provision of law or even when quoting a wrong provision of law, such application should not be rejected straightaway and rather such application should be treated under the specific provision of law which applies, keeping in mind the substance/content and the prayer as made in the said application. The Learned Counsel for the accused further argued that this Special Judge (Prevention of Corruption Act), Central Bureau of Investigation-20, Rouse Avenue District Court, New Delhi has no inherent power; therefore, the present application without having been filed with any specific provision of law cannot be entertained., Unlike the Code of Civil Procedure, 1908 (Section 151 CPC) and Section 482 of the Criminal Procedure Code (which gives inherent powers to High Courts only), the criminal courts at the district level do not have any inherent power to pass an order giving relief to a party in the absence of application of any specific statutory provision. Therefore, it is essential to know as to what provision of the Criminal Procedure Code would apply to the present application., The power of the investigating agency (Police) to ask questions from an accused or to seek production of any document from him has not been provided in the Criminal Procedure Code by specifically using the word \accused\ but the same are implicit in Sections 91, 93, 102 and 161 of the Criminal Procedure Code which relate to any person acquainted with the facts and circumstances of the case or to the person who is in possession of such information or document/thing. However, the Learned Counsel for the accused has relied on the cases of Kathi Kalu Oghad to contend that Section 91 of the Criminal Procedure Code does not apply to an accused. In my considered opinion, Sections 102 and 161 of the Criminal Procedure Code give power to the investigating agency, exclusively or with the help of the court under Sections 91 and 93, to seek any information or document from any person including an accused, but at the same time, the accused (or a witness) is not obliged or bound to give answer or information/document which is self‑incriminatory, being protected by his independent constitutional right as guaranteed by Article 20(3) of the Constitution of India: \(3) No person accused of any offence shall be compelled to be a witness against himself.\, Even Sub‑clause (2) of Section 161 of the Criminal Procedure Code provides such protection to the accused and witness by enacting that such person shall be bound to answer truly all questions, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. The said Section 161(2) is on the same principle as Article 20. Apart from the aforesaid specific statutory provisions, the words \to investigate the facts and circumstances of the case\ as given in Section 157 of the Criminal Procedure Code are wide enough to include any kind of information, thing or object which the Investigating Officer may require from an accused or a witness or a third person, needed for a fair investigation, provided it does not violate any established provision of law. In this regard, it is pertinent to mention that even without there being a specific provision in the Criminal Procedure Code and before subsequent amendments as well as the enactment of the Criminal Procedure (Identification) Act, 2022 pertaining to taking of blood sample, finger prints, hair/DNA sample, etc., such power of the Investigating Officer was held permissible by the Hon'ble Apex Court within the realm of investigation. Reliance can be placed on the observations made in the case of Selvi as under: In the past, the meaning and scope of the term \investigation\ has been held to include measures that had not been enumerated in statutory provisions. For example, prior to the enactment of an express provision for medical examination in the Criminal Procedure Code, it was observed in Mahipal Maderna v. State of Rajasthan [1971 Criminal Law Journal 1405 (Rajasthan)], that an order requiring the production of a hair sample comes within the ordinary understanding of investigation. We must also take note of the decision in Jamshed v. State of Uttar Pradesh [1976 Criminal Law Journal 1680 (All)], wherein it was held that a blood sample can be compulsorily extracted during a medical examination conducted under Section 53 of the Criminal Procedure Code. At that time, the collection of blood samples was not expressly contemplated in the said provision. Nevertheless, the Court ruled that the phrase \examination of a person\ should be read liberally so as to include an examination of what is externally visible on a body as well as the examination of an organ inside the body., Therefore, the present application is being treated under Sections 102 and 161 of the Criminal Procedure Code read with Section 91 of the Criminal Procedure Code and/or the provisions which relate to investigation as given in the Criminal Procedure Code. However, the said provisions, like any other statutory legislation or delegated rules, are always subject to Constitutional law, especially the Fundamental Rights as given, inter alia, in Article 20(3) of the Constitution of India, which gives protection to persons accused of committing criminal offences to maintain silence when they are compelled to give self‑incriminating testimony., Point (iii): The accused has a right to maintain silence as per Article 20(3) of the Constitution of India as well as Section 161(2) of the Criminal Procedure Code, and therefore the accused cannot be compelled to give his password which would tantamount to giving self‑incriminating testimony. Now the most important question arises as to what constitutes an incriminating testimony. Section 161(2) of the Criminal Procedure Code uses the words \answer which may have a tendency to expose an accused to a criminal charge, penalty or forfeiture\. Article 20(3) uses the words \no person accused of an offence shall be compelled to be a witness against himself\. In the Selvi case, the Hon'ble Supreme Court of India observed: 148. The question of what constitutes testimonial compulsion for the purpose of Article 20(3) was addressed in M.P. Sharma case [AIR 1954 Supreme Court 300 : 1954 Criminal Law Journal 865 : 1954 Supreme Court Reports 1077]. In that case, the Court considered whether the issuance of search warrants in the course of an investigation into the affairs of a company (following allegations of misappropriation and embezzlement) amounted to an infringement of Article 20(3). The search warrants issued under Section 96 of the erstwhile Code of Criminal Procedure, 1898 authorised the investigating agencies to search the premises and seize the documents maintained by the said company. The relevant observations were made by Justice Jagannadhadas at SCR pp. 1087‑88: \The phrase used in Article 20(3) is to be a witness. A person can be a witness not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see Section 119 of the Evidence Act) or the like. To be a witness is nothing more than to furnish evidence, and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part.\ 150. Both the majority and minority opinions ruled that the other statutory provisions mentioned above were compatible with Article 20(3), but adopted different approaches to arrive at this conclusion. In the majority opinion it was held that the ambit of the expression \to be a witness\ was narrower than that of furnishing evidence. Justice B.P. Sinha, C.J., observed that \to be a witness may be equivalent to furnishing evidence in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. Furnishing evidence in the latter sense could not have been within the contemplation of the Constitution‑makers for the simple reason that, though they may have intended to protect an accused person from the hazards of self‑incrimination, they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the Constitution‑makers were aware of the existing law, for example, Section 73 of the Evidence Act or Sections 5 and 6 of the Identification of Prisoners Act (33 of 1920).\ 11. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not to be a witness. To be a witness means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said to be a witness to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by writers into three categories, namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in M.P. Sharma that the prohibition in clause (3) of Article 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. Self‑incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a personal testimony. The giving of a personal testimony must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation, cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression \to be a witness\., In order that a testimony by an accused person may be said to have been self‑incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself.
id_912	1	A specimen handwriting, signature or finger impression by itself is no testimony at all, being wholly innocuous because it is unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. Such material is only used for comparison to lend assurance to the Supreme Court of India that its inference based on other pieces of evidence is reliable. It is neither oral nor documentary evidence but belongs to the third category of material evidence which is outside the limit of testimony., Since the majority decision in Kathi Kalu Oghad (AIR 1961 Supreme Court 1808 : (1961) 2 Criminal Law Journal 856 : (1962) 3 Supreme Court Reports 10) is the controlling precedent, it is useful to restate the two main premises for understanding the scope of testimonial compulsion. The first premise is that ordinarily oral or written statements that convey a person’s personal knowledge of relevant facts amount to personal testimony and therefore come within the prohibition contemplated by Article 20(3) of the Constitution. In most cases such personal testimony can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases oral or written statements may be relied upon only for the purpose of identification or comparison with facts and materials already in the possession of the investigators. The bar of Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or furnish a link in the chain of evidence needed to do so., The recognition of the distinction between testimonial acts and physical evidence for the purpose of invoking Article 20(3) finds a close parallel in foreign decisions. In Schmerber v. California (16 L Ed 2d 908 : 384 US 757 (1965)), the United States Supreme Court had to determine whether an involuntary blood test of a defendant violated the Fifth Amendment. The defendant, who was being treated in a hospital after an automobile accident, had a blood sample taken against his will at the direction of a police officer. The analysis revealed intoxication and the results were admitted into evidence, leading to his conviction for drunk driving. The majority opinion (Justice Brennan) relied on a distinction between evidence of a testimonial or communicative nature and evidence of a physical or real nature, concluding that the privilege against self‑incrimination applied to the former but not to the latter., In addition to citing John Wigmore’s position that the privilege is limited to testimonial disclosures, the Court in Schmerber also noted other examples where the privilege did not apply to physical evidence, including compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture., We are inclined to treat the results of the impugned tests as testimonial acts for the purpose of invoking the right against self‑incrimination. Therefore, the phrase “such other tests” in the Explanation to Section 53 of the Code of Criminal Procedure should be read to include only those tests which involve the examination of physical evidence. In pursuance of this reasoning, we agree with the appellant’s contention about the applicability of the rule of ejusdem generis. It should also be noted that the Explanation to Section 53 does not enumerate certain other forms of medical examination that involve testimonial acts, such as psychiatric examination, demonstrating that the amendment was based on a rational distinction between the examination of physical substances and testimonial acts., Even though the impugned techniques have not been expressly enumerated in the Code of Criminal Procedure, there is no statutory prohibition against them. It is a clear case of silence in the law. Furthermore, where an individual consents to undergo these tests, there is no dilution of Article 20(3)., The observations of the Supreme Court indicate that the Court laid down a test to identify whether a particular fact, information, testimony or evidence comes within the category of testimonial fact protected by Article 20(3). The second kind of evidence is called physical material or evidence, which can be taken by compelling an accused person. In the first category, oral or written statements that convey personal knowledge amount to personal testimony; in the second case, personal testimony can be distinguished from physical material such as bodily substances and other physical objects. Facts of the first category may be based on oral or written statements of an accused but can still be compelled for the purpose of identification or comparison with facts and materials already possessed by the investigating agency. Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or furnish a link in the chain of evidence, but not for comparison or identification with other evidence., For example, a testimony in oral form (such as a voice sample) or written form (such as specimen handwriting or signature) may be personal yet can be taken under compulsion from an accused if it is to be used for identification or comparison with already available voice recordings, signatures, handwriting obtained from other sources, seized documents, chance prints, fingerprints of the crime scene, etc., In the present application, the Central Bureau of Investigation Investigating Officer is seeking the password of the computer system from the accused for opening or accessing his data and not for comparison or identification purposes. Therefore, the request comes within the first category of testimonial fact., In the case of Narco Analysis or Lie Detection test, the Supreme Court of India has held that such procedures involve personal knowledge of the accused and therefore cannot be done without his consent. The same logic applies to a password, which also involves the import of personal knowledge. The relevant observations of the Supreme Court in the Selvi case apply to a password as follows: “The narco‑analysis test includes substantial reliance on verbal statements by the test subject and hence its involuntary administration offends the right against self‑incrimination.” The crucial test laid down in Kathi Kalu Oghad is that of imparting knowledge of relevant facts by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation., Even though the actual process of undergoing a polygraph examination or a Brain Electrical Activity Profiling (BEAP) test is not the same as making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner derives knowledge from the subject’s mind that would otherwise not be available to investigators. These tests differ from medical examinations and the analysis of bodily substances such as blood, semen and hair, because the subject’s physiological responses are directly correlated to mental faculties. Through lie detection or gauging a subject’s familiarity with the stimuli, personal knowledge is conveyed with respect to a relevant fact. Unlike documents, investigators cannot have prior knowledge of the subject’s thoughts and memories, either actual or constructive. Therefore, even a strained analogy between the results of the impugned tests and the production of documents leans towards restricting the extraction of personal knowledge through such means., During the administration of a polygraph or BEAP test, the subject makes a mental effort accompanied by certain physiological responses. The measurement of these responses becomes the basis of the transmission of knowledge to the investigators. This knowledge may aid an ongoing investigation or lead to the discovery of fresh evidence that could then be used to prosecute the test subject. Accordingly, when statements are likely to lead to incrimination by themselves or furnish a link in the chain of evidence, the bar of Article 20(3) applies. In the instant case, the Investigating Officer is seeking to find a further link in the chain of evidence by utilizing data lying in the accused’s computer system; therefore, this cannot be allowed as it would be hit by Article 20(3)., The present application filed by the Central Bureau of Investigation seeks only the password or user ID of the computer system and its associated software, and there is no prayer for biometrics of the accused, probably because the computer system may not be protected with a biometric security feature. In the judgment of Virender Khanna, the password and biometrics were treated as the same thing, but in view of the recent enactment of the Criminal Procedure (Identification) Act, 2022 (effective from 18 April 2022), this Court is of the considered opinion that a different approach is required for password and biometrics of the accused., The Act defines “measurements” in Section 2(1)(b) to include finger‑impressions, palm‑print impressions, foot‑print impressions, photographs, iris and retina scans, physical and biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in Section 53 or Section 53A of the Code of Criminal Procedure, 1973., Section 3 of the Act provides for circumstances when an accused may be directed to provide his measurement. It states that any person who has been convicted of an offence punishable under any law in force; or who has been ordered to give security for good behaviour or to maintain peace under Section 117 of the Code of Criminal Procedure, 1973 for a proceeding under Section 107, 108, 109 or 110 of the Code; or who has been arrested in connection with an offence punishable under any law in force or detained under any preventive detention law, shall, if so required, allow his measurement to be taken by a police officer or a prison officer in a manner prescribed by the Central Government or the State Government. The proviso states that any person arrested for an offence (except offences against a woman or a child or offences punishable with imprisonment of not less than seven years) may not be obliged to allow taking of his biological samples under this section., The Act also empowers a Magistrate to direct any person to give measurements for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1973 or any other law in force. Section 5 provides that where the Magistrate is satisfied that it is expedient to direct a person to give measurements, the person shall allow the measurements to be taken in conformity with such directions., From a perusal of the entire Criminal Procedure (Identification) Act, 2022, it is clear that the legislature did not include the words password or user ID in the definition of measurement or anywhere else. Consequently, the Act does not apply to the password or user ID of an electronic record, whether contained in a computer system, mobile phone, hard‑disk, memory card, email, etc., or to any other documentary evidence such as a suitcase locked with a numeric code., However, powers have been given to the police agency and the Magistrate to direct an accused to provide his biometrics, as mentioned in the definition of measurement. Therefore, an accused can be asked or directed to give his biometrics (finger impressions, face or iris recognition) for the purpose of opening his electronic device by the Investigating Officer or the court. Precedents of the Supreme Court of India emphasize that the applicability of Article 20(3) depends on personal knowledge of the accused; biometrics are only physical evidence that does not require attribution of personal knowledge and therefore do not violate Article 20(3)., The proviso to Section 3 of the Act provides that any person arrested for an offence may not be obliged to allow taking of his biological samples, except when the offence falls within any of three categories: (i) offence against a woman, (ii) offence against a child, or (iii) offence punishable with imprisonment of more than seven years. For lighter offences such as theft (Section 379 Indian Penal Code), criminal assault (Section 355 Indian Penal Code), or simple hurt (Section 323 Indian Penal Code) that are not against a woman or child and are not punishable for more than seven years, the accused can refuse to provide his biometrics. The exception does not apply to offences like rape, murder, or simple hurt committed against a woman or child., The Criminal Procedure (Identification) Act, 2022 does not use the word “measurement” to indicate that it will be taken for the purpose of comparison with previous evidence or identification, as held in various judgments of the Supreme Court of India to draw a distinction between physical evidence and testimonial evidence for the applicability of Article 20(3). Consequently, the police agency can take biometrics from an accused under Section 3 of the Act (unless the accused invokes the exemption clause) even when the biometrics are not needed as physical evidence for identification or comparison but for other investigative purposes, such as opening a mobile phone or computer system., The drawing of a pattern as a security feature on a mobile phone requires the application of mind and personal knowledge; therefore, the same law that applies to a password of an electronic device also applies to a pattern lock., Although the Central Bureau of Investigation Investigating Officer cannot be permitted to compel the accused to give his password for accessing his data, a situation may arise where the password is required not for accessing data but for comparison of the password as physical evidence with other available evidence. In such a case, compulsion may be permissible under law; however, if the accused claims he has forgotten the password or pattern, he is within his right to say so., The judgment in Virender Khanna v. State of Karnataka, relied upon by the prosecution, is not binding on this Court due to territorial limitation and is, in any event, a judgment per incuriam., The learned public prosecutor for the Central Bureau of Investigation heavily relied on the Virender Khanna case (Writ Petition No. 11759/2020) decided by the Karnataka High Court. The High Court observed that the Investigating Officer may issue a direction or request to the accused to furnish a password, passcode or biometrics to open a smartphone or email account, and it is up to the accused to accede to the request. The Court held that providing a password, passcode or biometrics does not amount to testimony, and therefore does not constitute testimonial compulsion., The High Court further held that providing a thumb impression, palm impression, foot impression, specimen in writing, or exposing a part of the body for identification does not amount to testimonial compulsion. Mere access to a smartphone or email account is not the same as being a witness; the information accessed must be proved by the Investigating Officer in accordance with the rules of evidence. A direction to provide a password, passcode or biometrics is only a direction to produce a document and does not amount to self‑incrimination., The question remains whether the Investigating Agency can compel an accused to provide such information or whether the accused has a right to refuse and maintain silence. The Supreme Court of India, in the Selvi case, held that to be a witness means imparting knowledge of relevant facts by oral or written statements by a person who has personal knowledge of the facts to be communicated to a court or an enquiry. When an accused is asked to disclose his password, he must apply his mental faculty and memory, which is purely based on personal knowledge; therefore, the information falls within the category of testimonial fact., Although a password alone does not constitute self‑incriminating testimony, the investigating officer seeks the password as an integral part of the seized computer system or mobile phone, and it cannot be considered in isolation. The data accessed may or may not contain incriminating evidence, but if there is an apprehension that it may contain such information, the accused is within his right to maintain silence under Section 161(2) of the Code of Criminal Procedure, which protects against compelled self‑incrimination., In the United States, evidence obtained by illegal means is generally excluded under the doctrine of fruit of the poisonous tree, whereas in India such evidence may still be admissible in certain circumstances. Consequently, there is a risk that the constitutional right under Article 20(3) could be jeopardized if the Investigating Officer is allowed to compel the accused to provide his password, because once the data is accessed and reveals incriminating material, it may be read against the accused. The Selvi judgment similarly held that compelling an accused to disclose information based on mental effort or knowledge violates Article 20(3)., The Karnataka High Court’s observations that providing a password or biometrics does not amount to testimonial compulsion are therefore not consistent with the Supreme Court’s position in Selvi and must be reconsidered.
id_912	2	The XI Judge Bench of the Supreme Court of India in Kathi Kalu Oghad's case has categorically held that providing a thumb impression, palm impression, foot impression, finger impression, specimen in writing, or exposing a part of the body of an accused person for the purpose of identification would not amount to testimonial compulsion. Mere provision of access to a smartphone or e‑mail account would not amount to being a witness; the information accessed by the Investigating Officer on the smartphone or e‑mail account is only access to data and/or documents, and it is for the Investigating Officer to prove and establish the same in a Court of Law by following the applicable Rules of Evidence., With due respect and high regard, the aforesaid observations of the Honourable Karnataka High Court are per incuriam because the following observations of the Supreme Court of India in the case of Selvi v. State of Karnataka, (2010) 7 SCC 263 were completely ignored: Ordinarily evidence is classified into three broad categories, namely, oral testimony, documents and material evidence. The protective scope of Article 20(3) read with Section 161(2) of the Code of Criminal Procedure guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of Article 20(3) is decided by the trial Judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators., As such, as per the aforesaid observations, when a password is demanded by the investigating agency for the purpose of identification or comparison of already existing information or data, the said information was held not violative of Article 20(3) of the Constitution of India. However, when it is required or sought only for the purpose of accessing data of the accused from his computer system, mobile or e‑mail, the accused is within his right to refuse to provide such password., The learned Public Prosecutor for the Central Bureau of Investigation further relied on an order passed in P. Gopalkrishnan @ Dileep vs. State of Kerala (Bail application no. 248 of 2022) by the Kerala High Court and the relevant paragraphs of the said case are reproduced as follows: Bound, as I am, by the law laid down on Oghad (supra) and being in respectful agreement with the view taken by Suraj Govindraj J in Virendra Khanna (supra) and also having regard to the provisions of Section 45‑A of the Indian Evidence Act and Section 79‑A of the Information Technology Act (for short, the IT Act), I hold that the prosecution has every right to seek that the accused hand over the mobile phones in question for the purpose of forensic examination by an agency identified by the Central Government as ‘Examiner of Electronic Evidence’ under Section 79‑A of the Information Technology Act, 2000., In the said case, it was specifically observed that in view of Section 79(A) of the Information Technology Act, 2000, the prosecution has every right to seek from the accused his mobile phone for forensic examination. In my considered opinion, the law with regard to seeking production of documents (including mobile phones) and seeking a password or biometric is different. When a password is asked from an accused which is based on his personal knowledge, the accused is within his right to refuse providing such information. Section 79(A) of the IT Act only provides for the establishment of a laboratory for the purpose of examination of electronic records. There may be many cases where electronic records are supplied voluntarily or are seized without compelling the accused. In that case, such laboratory is required to examine the electronic record but the provision does not in any way undermine the protection of Article 20(3) of the Constitution of India. Therefore, the judgment is distinguishable on the factual as well as legal aspects of the present case., The learned Public Prosecutor for the Central Bureau of Investigation also relied on an order passed in Ajay Bhardwaj vs. Union of India & ors. IA No. 82439/2020, by the Supreme Court of India where direction was given to provide a password. From the perusal of the said order, it is seen that it was only an interim order which was passed on the consent of the accused to provide such information. The case was not finally decided on its merits and, when consent has been given by the counsel for the accused, the order becomes distinguishable from the issues involved in the present case., The said computer system may contain private data of the accused and, if it is revealed to the Investigating Officer, it may interfere with the right of privacy of the accused., The learned Counsel for the accused vehemently argued that if the Investigating Agency is permitted to access the data of the computer system of the accused, it may interfere with his right of privacy since the system may contain private data relating to his personal life, financial transactions, business, and various other secret or confidential information or passwords. It is alleged that with the help of such information, further data of the accused can be accessed, misused and made public by the Investigating Officer. Therefore, it is prayed that the computer system of the accused should not be permitted to be opened by the Investigating Officer., It has already been held in the preceding paragraphs that the Investigating Officer has no right to be provided with the password of the accused without the consent of the accused as it may violate Article 20(3) of the Constitution of India as well as Section 161(2) of the Code of Criminal Procedure. However, the power of the Investigating Officer to have the data of the said computer system opened, decrypted or accessed with the help of a specialised agency or person has not been denied., Therefore, the objection relating to the right of privacy of the accused vis‑à‑vis the right of the State (Investigating Agency) also needs to be decided., In the famous case of K.S. Puttaswamy vs. Union of India, 2017 (supra) on the status of the right to privacy, the nine‑Judge Bench of the Supreme Court of India observed as follows: Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the State is to safeguard the ability to take decisions, the autonomy of the individual, and not to dictate those decisions. Life within the meaning of Article 21 is not confined to the integrity of the physical body. The right comprehends one's being in its fullest sense. That which facilitates the fulfillment of life is as much within the protection of the guarantee of life. To live is to live with dignity. The draftsmen of the Constitution defined their vision of a society in which constitutional values would be attained by emphasizing, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III., The Supreme Court also described the various categories or facets of an individual's privacy into the following nine categories: (i) bodily privacy which reflects the privacy of the physical body, implicit in this is the negative freedom of being able to prevent others from violating one's body or restraining the freedom of bodily movement; (ii) spatial privacy which is reflected in the privacy of a private space through which access of others can be restricted; intimate relations and family life are an apt illustration of spatial privacy; (iii) communicational privacy which enables an individual to restrict access to communications or control the use of information communicated to third parties; (iv) proprietary privacy which reflects the interest of a person in utilising property as a means to shield facts, things or information from others; (v) intellectual privacy which reflects an individual interest in the privacy of thought and mind and the development of opinions and beliefs; (vi) decisional privacy reflected by an ability to make intimate decisions primarily consisting of one's sexual or procreative nature and decisions in respect of intimate relations; (vii) associational privacy which is reflected in the ability of the individual to choose with whom she wishes to interact; (viii) behavioural privacy which recognises the privacy interests of a person even while conducting publicly visible activities, postulating that even when access is granted to others, the individual is entitled to control the extent of access and preserve a measure of freedom from unwanted intrusion; and (ix) informational privacy which reflects an interest in preventing information about the self from being disseminated and in controlling the extent of access to information., After holding the right to privacy as one of the components of Article 21 in particular and Part III (Fundamental Rights) as a whole of the Constitution of India, the Supreme Court observed on the point of its extent and limitations as follows: Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21, an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. An invasion of life or personal liberty must meet the three‑fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them., From the aforesaid observations, it is clear that the right to privacy, despite being a facet of Article 21 in particular and Part III of the Constitution of India in general, is not absolute and is subject to State law which must withstand the touchstone of permissible restrictions on fundamental rights., The electronic record, which may be in the form of a computer system, mobile, pen‑drive, hard‑disc, memory card, e‑mail communication, cloud storage, etc., containing private data or information of an accused is not immune from being scrutinised by the Investigating Officer as per Section 102 of the Code of Criminal Procedure, with the help of other statutory provisions of the Code of Criminal Procedure, if the data is alleged or suspected to have been stolen or is found under circumstances creating suspicion of the commission of any offence. As such, the right to privacy (also treated as part of Article 21 of the Constitution) can have reasonable restrictions in the larger interest of society, subject to law (here the Code of Criminal Procedure), especially for detection of crime, protection of the victim and to ensure punishment, discharge or acquittal of the accused., It is also pertinent to mention that the Parliament of India is already in the process of passing a law relating to the right to privacy and a Bill titled ‘The Personal Data Protection Bill, 2019’ is pending before the legislators. Although the provisions of the Bill are not yet enforceable, they can be seen. The following provisions clearly show that on the ground of the right of privacy, data of an accused cannot be denied from being seized and examined by the investigating agency, and Section 36 is worth noting in this regard: ‘Section 4. No personal data shall be processed by any person, except for any specific, clear and lawful purpose. Section 5. Every person processing personal data of a data principal shall process such personal data (a) in a fair and reasonable manner and ensure the privacy of the data principal; and (b) for the purpose consented to by the data principal or which is incidental to or connected with such purpose, and which the data principal would reasonably expect such personal data to be used for, having regard to the purpose, and in the context and circumstances in which the personal data was collected. Section 36. The provisions of Chapter II except Section 4, Chapters III to V, Chapter VI except Section 24, and Chapter VII shall not apply where (a) personal data is processed in the interests of prevention, detection, investigation and prosecution of any offence or any other contravention of any law for the time being in force.’, However, at the same time, it is the responsibility of the Investigating Officer not to disclose private information of an accused to any third person or to make it public without the consent of the concerned accused or the lawful owner of such information. In this regard, special provisions have been enacted in the Information Technology Act, 2000 which mandate keeping such information confidential and prescribe a punishment of up to two years imprisonment or a fine up to Rs. 2 lakhs, or both, under Section 72 of the Act for violation of the right of privacy without the consent of the concerned person. Although the provisions of the Information Technology Act are not applicable to general offences under the Indian Penal Code or other statutes, an analogy can be drawn that if an Investigating Officer violates the right of privacy of an accused by disclosing private information to any third person without consent or legal authority, necessary action can be taken against the Investigating Officer by the court and/or his superior officers upon grievance by the affected person., It is also pertinent to mention that there is no exception made in the Code of Criminal Procedure that, on account of interference in the right of privacy, a piece of evidence (whether electronic record or document) cannot be seized or produced before a court of law. Various provisions of the Code of Criminal Procedure permit interference in the right of privacy of an accused, such as arrest, search of the accused’s house, detention and punishment, which involve his right of privacy or personal liberty but only on account of such interference can the right of the State (including the Investigating Agency) be exercised to maintain law and order, peace, public order and safety of its citizens. If the accused refuses to provide such information, no adverse inference can be drawn against him., Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his or her silence. At the trial stage, Section 313(3) of the Code of Criminal Procedure places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself or herself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, proviso (b) to Section 315(1) of the Code of Criminal Procedure mandates that even though an accused person can be a competent witness for the defence, his or her failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against him or any person charged together with him at the same trial. It is evident that Section 161(2) of the Code of Criminal Procedure enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and proviso (b) to Section 315(1), adverse inferences cannot be drawn on account of the accused's silence during the trial stage., In the light of the aforesaid discussion, the present application of the Central Bureau of Investigation seeking the password/User ID of the computer system and its software of the accused is dismissed as the accused cannot be compelled to give such information and is protected by Article 20(3) of the Constitution of India as well as Section 161(2) of the Code of Criminal Procedure. However, the Investigating Officer is within his right to access the data of the computer system and its software which were seized from the accused with the help of a specialised agency or person, at the risk of loss of data, if any. A copy of the order be given original.
id_914	0	Petitioner, claiming to be an intermediary under the Information Technology Act, 2000 (hereafter the Act), is approaching the High Court of India complaining against certain Blocking Orders issued by the respondents, which direct the bar of access to certain information to the public by suspending some accounts on Twitter. In the alternative, petitioner seeks a direction from the High Court of India to modify the Blocking Orders to the extent of Table A of Annexure S by revoking the account‑level directions and instead identifying specific tweets which are violative of Section 69A of the Information Technology Act, with reasons. The respondents, by a letter dated 27 June 2022, warned the petitioner of serious consequences such as withdrawal of protection available under Section 79(1) of the Act and initiation of criminal proceedings if these orders are not complied with., Particulars of the said orders are furnished by the petitioner in a tabular form as follows: Blocking Order date – 02.02.2021; Accounts to be blocked – 256 URLs and 1 hashtag; Total – 1,474 accounts and 175 tweets. Of the above, only a total of 39 URLs are being challenged by the petitioner in the present petition., After service of notice, the Union of India and its designated officer from the Ministry of Electronics & Information Technology entered appearance through their learned Senior Standing Counsel and resisted the petition, making submissions in justification of the impugned orders and the reasons on which they have been constructed. The respondents have filed their Statement of Objections countering the petition averments. Both parties have filed certain write‑ups which may partake the character of additional pleadings supportive of each other as taken up in the original pleadings., The petitioner is a company incorporated under the laws of the United States of America, having its registered office at San Francisco, California. In the petition, it has shown the contact address as Dickenson Road, Bangalore, India. The petitioner provides services on Twitter to users, inter alia, in India; Twitter is claimed to be a global platform for self‑expression of its users to communicate and stay connected through messages of 280 characters or less (tweets), at times with pictures or videos. The petitioner satisfies the description of intermediary as given in Section 2(1)(w) of the Act since its functions are restricted to receiving, storing and transmitting records or providing any service with respect to that record, on behalf of any user of the Twitter platform., The Union of India (hereafter Union of India) is the appropriate government as defined under Section 2(e) of the Act; the second respondent is the Designated Officer as defined under Rule 2(c) of the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (hereafter the Website Blocking Rules). The respondents, in exercise of power availing under Section 69A of the Act, have issued Blocking Orders on various dates. These Blocking Orders comprise a total of 1,474 Twitter accounts and 175 tweets. A brief description is given in paragraph 4 of the petition. Of the above, only a total of 39 URLs are being challenged by the petitioner., In June 2022, having received notice of the Blocking Orders, the petitioner claimed to have complied with the same under protest. It sent a reply dated 9 June 2022 seeking a post‑decisional personal hearing. The Designated Officer, by a notice dated 27 June 2022, directed compliance with all directions issued under Section 69A of the Act coupled with a warning of serious consequences such as withdrawal of the immunity available under Section 79(1) and penal actions if the same are not complied with. The petitioner sent its response dated 29 June 2022 to the effect that certain so‑called objectionable content did not attract the grounds specified in Section 69A., The Review Committee constituted under Rule 419‑A of the Indian Telegraph Rules, 1951, held its meeting on 30 June 2022 and the petitioner, having participated therein, requested revocation of 11 account‑level Blocking Orders on certain grounds. Subsequent to the meeting, the respondents listed 15 Twitter accounts and 12 URLs (tweets) with a direction to block them. In accordance with what was agreed upon in the meeting, the respondents, by a notice dated 1 July 2022, revoked 10 of these 11 accounts that were blocked. The petitioner sent a letter dated 2 July 2022 reporting compliance with the Blocking Orders under protest that were left non‑complied thitherto, while also pointing out certain discrepancies in the Blocking Orders. This compliance was acknowledged by the respondents, by e‑mail dated 4 July., Aggrieved by both the Blocking Orders and the action of the respondents in not revoking the blocking of accounts, tweets and URLs, this writ petition is presented. The petition is structured on the grounds that there is substantive and procedural non‑compliance of Section 69A of the Act in the light of the Blocking Orders being information‑specific; blocking of anticipatory information is not authorized; absence of prior notice to the originators of the so‑called objectionable content, which is mandatory; failure to provide proper reasons in the Blocking Order itself; the impugned order is not a speaking order in the true sense; non‑communication of reasons renders the action void; the impugned action is grossly disproportionate as the respondents failed to use the least intrusive means; gross violation of Articles 14, 19 and 21 of the Constitution of India; no opportunity of hearing before the Review Committee and thus violation of principles of natural justice., The Union of India and the Designated Officer repelled the above contentions, contending that a petition by a foreign company complaining of violation of fundamental rights is not maintainable; there is compliance with both substantive and procedural requirements under Section 69A of the Act and the provisions of Rules 8 and 9 of the Website Blocking Rules; in the decision‑making process, the petitioner having participated cannot complain of lack of reasonable opportunity; the petitioner, not being a citizen nor a company of the native soil, cannot invoke Articles 19 and 21 of the Constitution; the petitioner has not invoked these articles during the hearing of the petition; no case is made out for invocation of Article 14; Rule 8(1) of the Website Blocking Rules does not avail to non‑citizens; in the absence of statutory enablement, the petitioner cannot espouse the cause of account holders or Twitter users; the particulars of account holders are exclusively with the petitioner and therefore the authorities could not issue any notice to them; at no point did the petitioner furnish particulars of the subject account holders nor insist upon issuance of notice to them; the procedural and substantive fairness standards with which the petitioner‑company has been treated do not fall short of the standards obtaining in any other civilized jurisdictions; even otherwise, no relief in terms of the petition prayer can be granted., The respondents have relied upon certain rulings in support of their stand. Having extensively heard learned advocates appearing for the parties and having perused the petition papers, the following questions have been broadly framed for consideration: (i) Whether the petitioner‑company, being a foreign entity, can invoke the writ jurisdiction constitutionally vested in the High Court of India under Articles 2; (ii) Whether Section 69A of the Act read with the Website Blocking Rules authorises issuance of a direction to block user accounts in their entirety or such power is tweet‑specific; (iii) Whether the impugned Blocking Orders are liable to be voided on the ground of non‑communication of reasons on which they have been structured; (iv) Whether the impugned Blocking Orders are bad since they have not been founded on discernible reasons relatable to objectionable content; (v) Whether notice to users of accounts, i.e., originators of information in terms of Rule 8(1), is mandatory and, in the absence thereof, the impugned Blocking Orders suffer from legal infirmity; (vi) Whether the impugned Blocking Orders are violative of the doctrine of proportionality and therefore liable to be invalidated; (vii) Whether the conduct of the petitioner disentitles it to the grant of any discretionary relief at the hands of the High Court of India; (viii) Whether the culpable conduct of the petitioner renders it liable for the levy of exemplary costs., It is a specific contention of the respondents that the petitioner‑company lacks locus standi and therefore the petition in its present form and substance cannot be entertained in the constitutional jurisdiction vested under Articles 226 and 227 of the Constitution. The Additional Solicitor General submitted that the petitioner is a foreign commercial entity and the same has neither been defined nor taken cognisance of by Indian law; the rights guaranteed to citizens in Part III of the Constitution do not avail to a juristic person, particularly a foreign entity. Learned advocates appearing for the petitioner replied, and the High Court of India agrees, that invocation of writ jurisdiction is not confined to examination of complaints of violation of fundamental rights guaranteed under Part III of the Constitution. Invocation is permissible even in cases that involve infringement of statutory rights as distinguished from constitutional rights., The constitutional guarantee of certain rights, i.e., Articles 19 and 21, is citizen‑centric, but provisions in Part II of the Constitution relating to citizenship are not applicable to juristic persons. Article 19, as contrasted with Articles 26, 29 and 30, guarantees rights to citizens, and associations cannot claim the fundamental rights solely on the basis of being an aggregation of citizens. However, the Supreme Court has observed that the rights guaranteed under Articles 14 and 21 are not confined only to citizens but are available even to non‑citizens, aliens or incorporated bodies. Therefore, the petitioner‑company, being an incorporated body, is entitled to protection under Article 14. It is also noted that an organization cannot be a citizen for the purpose of Article 19, but rights do avail to non‑citizens and juristic persons as distinguished from natural persons., Article 226 employs the term ‘any person’; the word ‘person’ is not defined in the Constitution and assumes the meaning given in the General Clauses Act, 1897, which defines ‘person’ to include any company or association or body of individuals, whether incorporated or not. Consequently, even a complaint not involving violation of fundamental rights may lie before the High Court of India. Under Article 226, the High Court has the power to issue appropriate writs such as mandamus, certiorari, prohibition, quo warranto and habeas corpus for the enforcement of fundamental rights or for any other purpose, including enforcement of public duties by public bodies., The related question whether a foreign company can invoke writ jurisdiction need not be detailed. Article 19(1)(f) allows non‑citizens to acquire and hold property in India in the absence of a law restricting them, and foreign entities enjoy property rights under various statutes such as the Transfer of Property Act, the Contract Act, the Sale of Goods Act and the Succession Act. The Calcutta High Court has observed that while the Supreme Court under Article 32 can issue writs for enforcement of fundamental rights, the High Court under Article 226 can issue writs for enforcement of any legal right, making its jurisdiction wider than that of the Supreme Court., It is a settled proposition of law that a company, whether Indian or foreign, can maintain a legal action based on Article 14 of the Constitution alone. The petition is structured inter alia on the provisions of Article 14, as extensively construed by the Apex Court. The petitioner’s rejoinder states that it is canvassing rights under Articles 14, 19 and 21 only to a limited extent; it mainly urges violation of statutory rights. It cannot claim protection of Article 19(1)(a) because it is not a citizen, nor Article 21 because it is not a natural person; it also cannot espouse the cause of Twitter account holders in the absence of an enabling provision of law., Rule 8(1)(iii) of the Information Technology (Certifying Authorities) Rules, 2000 defines ‘foreign company’ by adopting the meaning assigned to it in Section 2(23) of the Income Tax Act, 1961. Rule 8(3) of the Website Blocking Rules mentions the mode of service of notice on a foreign entity or body corporate and recognises the right of such an entity to reply. Notice was sent to the petitioner‑company by the respondents and the same was replied to by it., In Shreya Singhal (supra), the Apex Court observed that reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution, and that only an intermediary who finally fails to comply with the directions issued is punishable under sub‑section (3) of Section 69A., The petitioner submits that Section 83 of the Code of Civil Procedure, 1908 recognises the right of an alien to sue and his liability to be sued as if he were a citizen of India. The section reads: ‘When aliens may sue: alien enemies residing in India with the permission of the Central Government, and alien friends, may sue in any Court otherwise competent to try the suit, as if they were citizens of India…’, Rule 39 of the Writ Proceedings Rules, 1977 broadly adopts, inter alia, the provisions of the Code of Civil Procedure. If the right to sue is recognised, whether the case is prosecuted in an ordinary civil court or in a writ court, the cause of action, which is animated with abundant public law elements like state action, makes writ jurisdiction invocable. Therefore, the contention that Indian law does not take cognisance of a foreign entity or company is far‑fetched., Many civilized jurisdictions across the globe allow foreign nationals and foreign entities to vindicate statutory rights in domestic courts, even against the government and its authorities. Article III of the United States Constitution recognises the right of foreign citizens and entities to sue and be sued. The United States Supreme Court has repeatedly stated that the equality clause and the due process clause apply to all persons, including aliens. English law is similar; the London Court of Appeal in Resources Plc & Another confirmed that foreign citizens can pursue legal claims against English‑based multinationals., The realm of cyber law spurns the traditional concept of territoriality and repels the idea of geographical boundaries. The globe is becoming small. Ancient scriptures such as the Mahopanishad (6.71‑75) state: ‘This is mine, that is his, say the small minded; the wise believe that the entire world is a family.’ The petitioner‑company is not only threatened with loss of its protection available under Section 79(1) but also penal action for violation of the mandatory provisions of the Act and the Website Blocking Rules. In view of the above discussion, the High Court of India is of the considered view that the petitioner has locus standi to invoke the writ jurisdiction of this Court for redress of its grievance., Social media has reshaped the way in which masses consume information. Emergence of social media has changed the way in which people participate in the democratic process. Compared to traditional media, it has a far larger reach and easy accessibility; it enables mass participation and provides instant updates. Social media enables users to interact and communicate while simultaneously creating and sharing content digitally. This characteristic allows regular users to create media hypes comparable to news waves. Today, social media functions as the meeting place for participants to exchange information and also propagate views about such information. People increasingly rely on social media rather than traditional counterparts to become aware of their surroundings and participate in political, economic or other discussions, which may strengthen democracy. However, the abuse of social media is, at times, antithetical to the democratic process, leading to manipulation and fragmentation of society along political ideologies., Social media has also been used to manipulate political choices of voters and opinion generators, perniciously affecting the democratic setup of constitutional institutions. Social media is highly susceptible to exploitation by organizations and entities. Mass‑level psychological and intellectual manipulations are also perpetrated. Social networks have evolved into platforms for the generation and huge propaganda of fake news; this in turn empowers disruptive voices and ideologies with cascading effect. These platforms hold the potential to alter civic engagement that may eventually hijack democracy by influencing the masses toward a particular way of thinking. Social media has enabled a style of populist politics, which if left unregulated allows hate speech and virulent expressions to thrive in digital spaces. The rise of polarising and divisive content has been a defining moment of modern politics, fed by dissemination of fake news, and such dissemination through social media among populations with low or no levels of critical digital literacy is a major challenge. Added to this is the dangerous component of labeling and trolling of disruptive voices., The Apex Court, in Ajit Mohan (supra), observed that the technological age has produced digital platforms that can be imminently uncontrollable at times and carry their own challenges. Intermediaries claim to provide a platform for exchange of ideas without contributing their own content; they remove offensive content based on internal guidelines. The power and potentiality of these intermediaries is vast, running across borders. They are multinational corporations with large wealth and influence. By the very reason of the platform they provide, their influence extends over populations across borders. Simultaneously, they have become platforms for disruptive messages, voices and ideologies. The successful functioning of a liberal democracy can only be ensured when citizens are able to make informed decisions. The information explosion in the digital age creates new challenges that modulate debate on issues where opinions can be vastly divided. Social media has become a tool in the hands of various interest groups who have recognised its disruptive potential; extremist views are peddled into the mainstream, thereby spreading misinformation. Established independent democracies are seeing the effect of such ripples across the globe and are concerned. Election and voting processes, the very foundation of a democratic government, stand threatened by social media manipulation. The effect on a stable society can be cataclysmic with citizens being polarised and paralysed by such debates, dividing society vertically. Less informed individuals might tend not to verify information sourced from friends, or treat information received from populist leaders as gospel truth. The immense power that platforms wield has stirred a debate not only in our country but across the world. The endeavour has been to draw a line between tackling hate speech and fake news on the one hand and suppressing legitimate speech which may make those in power uncomfortable on the other. The significance of this is all the more in a democracy which itself rests on certain core values. This unprecedented degree of influence necessitates safeguards and caution in consonance with democratic values. Debate in the free world has shown the concern expressed by governments across the board and the necessity of greater accountability by these intermediaries, which have become big business corporations with influence across borders and over millions of people. The width of such access cannot be without responsibility as these platforms have become power centres themselves, having the ability to influence vast sections of opinion. Their platforms have also hosted disruptive voices replete with misinformation, which have had a direct impact on vast areas of subject matter ultimately affecting the governance of states. It is this role which has been persuading independent democracies to ensure that these mediums do not become tools of manipulative power structures. These platforms are not altruistic; they employ business models that can be highly privacy‑intrusive and have the potential to polarise public debates. To claim that they can sidestep this criticism is a fallacy as they are at the centre of these debates., The Global Dialogue on Internet for Trust, held in February 2023 by UNESCO, produced the Third Draft Guidelines titled ‘Safeguarding Freedom of Expression and Access to Information: Guidelines for a Multistakeholder Approach in the Context of Regulating Digital Platforms’. These guidelines, which encompass social intermediaries, focus on responsibilities of digital platforms with respect to human rights, especially in the context of media literacy and intermediary accountability. Digital platforms have empowered societies with enormous opportunities for people to communicate, engage and learn. They offer great potential for communities in social or cultural vulnerability and/or with specific needs, democratizing spaces for communication and opportunities to have diverse voices engage with one another, be heard and be seen. However, key risks were not taken into account earlier, and this potential has been gradually eroded over recent years. The aim of the guidelines is to safeguard freedom of expression, access to information and other human rights in the context of the development and implementation of digital platform regulatory processes. They establish rights‑respecting regulatory processes while promoting risk‑ and system‑based processes for managing content. They aim to enrich and support a global multistakeholder shared space to debate and share good practices about digital platform regulation; serve as a tool for all relevant stakeholders to advocate for human‑rights‑respecting regulation and to hold government and digital platforms accountable. Platforms make available information and tools for users to understand and make informed decisions about the digital services they use, helping them assess the information on the platform as well as understand the means of complaint and redress. They have in place media and information literacy programmes and provide information and enable user actions in different languages. Platforms are accountable to relevant stakeholders, to users, the public, advertisers and the regulatory system in implementing their terms of service and content policies; they give users the ability to seek redress against content‑related decisions, including both users whose content was taken down and users who have made complaints about content that violates international human rights law. Cyberspace is trans‑national.
id_914	1	The discussion in this paragraph is based on material furnished by the petitioner’s counsel Mister Manu Kulkarni and the learned Senior Counsel CGC Mister Kumar M.N appearing for the respondents. Mister Manu Kulkarni and the learned Additional Solicitor General made their submission assisting the Supreme Court of India. A brief reference to foreign law is not out of place., In the United States there does not appear to be a law approximating the regulatory provisions of the Information Technology Act, 2000 in general and section 69A thereof in particular. This is because of the First Amendment as expansively construed by the United States Supreme Court in a series of decisions beginning with Justice Thurgood Marshall’s observation that the First Amendment means that the government may not restrict expression because of its message, ideas, subject matter or content. The Communications Decency Act, 1996; section 230(c)(1) enacts a safe harbour provision whereby intermediaries are not treated as the publisher or speakers of third‑party generated content; section 230(c)(2) enacts a Good Samaritan clause which provides that intermediaries and users may not be held liable for voluntarily acting in good faith to restrict access to objectionable material; section 230(e) outlines a few exemptions where immunity will not be available, i.e., federal criminal statutes, intellectual property law and sex‑trafficking prevention laws. A content‑based restriction, as opposed to a content‑neutral one, is subject to strict scrutiny analysis, which requires the government to show a compelling public interest and that the regulation is the least speech‑restrictive way to further such interest. Protection under the First Amendment is not available where the speech is directed or likely to incite imminent lawless action. Similarly, there is no protection for speech used as an integral part of conduct in violation of a valid criminal statute., In the United Kingdom there are principally two statutes, namely the Terrorism Act, 2006 and the Digital Economy Act, 2017. The former prohibits the glorification, encouragement and promotion of commission or preparation of acts of terrorism (section 3) and enables a constable to issue a notice for the removal of objectionable content. Whether such content is objectionable is assessed on the basis of the statement as a whole and the circumstances of its publication. The offence is punishable with imprisonment for a term which may extend to fifteen years and/or a fine. Section 23 of the 2017 Act provides for issuance of Blocking Orders in respect of public access to offending material using the services of an internet service provider. Sub‑section (2) provides for steps to secure compliance with such notices. The statute focuses on the prevention of extreme pornography and provides for prosecution and penalty., In Australia the Online Safety Act, 2021, a federal statute of recent origin, promotes online safety and administration of complaints relating to cyber abuse. It enacts provisions regulating the issuance of warning notices, removal notices, removal requests, remedial notices, etc., in respect of objectionable content of cyber posts, and revocation of these notices. The Commissioner is the designated authority who processes the same. By a notice in writing, the Commissioner may request an intermediary to take all reasonable steps within twenty‑four hours or within a specified time to ensure removal of cyber‑abuse material from the service. Section 91 prescribes a penalty of 500 units for non‑compliance (the value of one unit is currently 275 Australian dollars). Section 95 provides for issuance of blocking requests to intermediaries to disable access to the objectionable material, including blocking URLs or IP addresses. Sub‑section (3) states that the Commissioner is not required to observe procedural fairness in relation to the blocking request. Section 96 provides that the period of a blocking request is three months and may be extended by renewal. Section 97 provides for revocation of a blocking request. Section 99 provides for issuance of blocking notices which may also cover blocking of accounts in their entirety. The statute also provides for issuance of warning notices, link deletion notices and remedial notices, and sets out factors the Commissioner should consider in assessing whether online material is likely to cause significant harm to the community., The United Nations Commission on International Trade Law (UNCITRAL) in 2001 adopted the Model Law on electronic commerce; United Nations Resolution No. 56/80 dated 12 December 2001 recommended that all nation‑states accord favourable consideration to the same. The Information Technology Act, 2000 is a parliamentary statute enacted to give effect to the growth of electronic‑based transactions, to provide legal recognition for e‑commerce and e‑transactions, to facilitate e‑governance, to prevent computer‑based crimes and to ensure security practices and procedures in the context of the widest possible use of information technology worldwide. A rapid increase in the use of electronic devices has given rise to new forms of crime, and consequently penal provisions have been enacted. The Act applies to the whole of India and also to offences or contraventions committed outside the country. In terms of section 3, the Act came into force on 17 October 2000., Section 2 of the Act is the dictionary clause; some definitions are relevant to the adjudication of this petition. Section 2(t) defines ‘electronic record’ to mean data, record or data generated, image or sound stored, received or sent in electronic form or microfilm or computer‑generated microfiche. Section 2(v) defines ‘information’ to include data, message, text, images, sound, voice, codes, computer programmes, software and databases or microfilm or computer‑generated microfiche. Section 2(w) defines ‘intermediary’ to mean any person who, on behalf of another, receives, stores or transmits an electronic record or provides any service with respect to that record, etc. Section 2(za) defines ‘originator’ to mean a person who sends, generates, stores or transmits the electronic message; however, it does not include an intermediary. A set of rules for the effective working of the Act has been promulgated by the Central Government. This petition in substance relates to section 69A of the Act and Rule 8 of the Website Blocking Rules., The Act as originally made did not have certain essential regulatory provisions and therefore section 66A and section 69A, among others, were introduced by the Parliament by Amendment Act No. 10 of 2009, effective 5 February 2009. Section 66A criminalised the act of sending offensive messages through a communication service and prescribed a penalty of three years’ imprisonment coupled with fine. Section 69A inter alia provides for issuance of Blocking Orders. Earlier, there was no such provision. Section 69A reads: ‘Power to issue directions for blocking for public access of any information through any computer resource. (1) Where the Central Government or any of its officers specially authorised by it is satisfied that it is necessary or expedient to do so in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognisable offence relating to the above, it may, subject to the provisions of subsection (2) and for reasons recorded in writing, by order direct any agency of the Government or intermediary to block for access by the public any information generated, transmitted, received, stored or hosted in any computer resource. (2) The procedure and safeguards for such blocking shall be as may be prescribed. (3) An intermediary who fails to comply with the direction shall be punished with imprisonment for a term which may extend to seven years and also be liable to fine.’, Section 69A is couched in restrictive language since free‑speech concerns are inherent to such blocking. The Parliament has structured the provision to allow issuance of directions to block public access of information through any computer resource only when (i) the Central Government or the officer specifically designated by it is satisfied that it is necessary or expedient to do so; either (a) in the interest of sovereignty and integrity of India; (b) defence of India; (c) security of the State; (d) friendly relations with foreign States; (e) public order; or (f) for preventing incitement to the commission of any cognisable offence. Section 69A(1) further states that all such orders shall be in writing. Non‑compliance may entail imprisonment for a term which may extend to seven years coupled with fine. Any website blocking involves inherent tensions between the competing interests of free speech and restriction of its exercise. Section 69A(2) provides for normative prescription of procedure and safeguards for effecting website blocking so that abuse of this power is minimised., Pursuant to Section 69A(2), the Central Government has promulgated the Website Blocking Rules which inter alia provide for the appointment of a Designated Officer of the rank of Joint Secretary who will be responsible for issuing Website Blocking Orders under Rule 3. Rule 6 enables any aggrieved person to lodge a complaint against any web content and seek its blocking. Such blocking requests will be examined by a Committee under Rule 7; this Committee is constituted under Rule 419‑A of the Indian Telegraph Rules, 1951., The provisions of Rules 8 and 9 of the Website Blocking Rules are as follows. Rule 8(1) requires the Designated Officer, on receipt of a request under Rule 6, to make reasonable efforts to identify the person or intermediary who has hosted the information and the computer resource, and to issue a notice by letter, fax or email signed with an electronic signature to such person or intermediary, requiring them to appear and submit their reply and clarifications before the Committee at a specified date and time, which shall not be less than forty‑eight hours from receipt of the notice. Rule 8(2) provides that in case of non‑appearance, the Committee shall give a specific written recommendation with respect to the request. Rule 8(3) deals with foreign entities, requiring notice to be sent to them and a response within the specified time, failing which the Committee shall give a written recommendation. Rule 8(4) states that the Committee shall examine the request and printed sample information and consider whether the request falls within the scope of section 69A(1) and is justifiable to block, and shall give a specific written recommendation. Rule 8(5) requires the Designated Officer to submit the Committee’s recommendation, together with details sent by the Nodal Officer, to the Secretary, Department of Information Technology, Ministry of Communications and Information Technology, Government of India. Rule 8(6) provides that on approval of the request by the Secretary, the Designated Officer shall direct any agency of the Government or the intermediary to block the offending information within the time limit specified; if the request is not approved, the Designated Officer shall convey the same to the Nodal Officer. Rule 9 deals with blocking of information in cases of emergency. Sub‑rule (1) allows the Designated Officer, in an emergency where no delay is acceptable, to examine the request and submit specific written recommendations to the Secretary. Sub‑rule (2) permits the Secretary, if satisfied that blocking is necessary, to issue interim directions to identified persons or intermediaries without an opportunity of hearing. Sub‑rule (3) requires the Designated Officer, within forty‑eight hours of issuing the interim direction, to bring the request before the Committee for consideration. Sub‑rule (4) states that on receipt of the Committee’s recommendations, the Secretary shall pass the final order; if the request is not approved, the interim direction shall be revoked and the person or intermediary shall be directed to unblock the information., The Central Government in its memorandum dated 18 April 2023 outlined the broad procedure normally followed in processing blocking requests. The Designated Officer (Rule 3) receives blocking requests from Nodal Officers (Rule 4). The Nodal Officers must provide justification and the grounds enacted in section 69A for each URL. The Designated Officer shares with the intermediaries (including Twitter) the list of URLs for content‑level blocking and URLs for account‑level blocking in pre‑meeting notices, ensuring that such notices are issued forty‑eight hours prior to the scheduled meeting (Rule 8). Based on the detailed justifications provided in an Excel sheet, the intermediary takes action to block or suspend the URL or account if it agrees with the complaint. Where it does not agree, deliberation takes place in the Inter‑Ministerial Committee, which examines the evidentiary material with participation of all stakeholders, including the intermediary’s representative, Nodal Officers and Law Enforcement Agencies. If the Committee is convinced, it recommends content‑ or account‑level blocking of URLs. Minutes of the proceedings are drawn and submitted along with all records for approval of the Competent Authority (Secretary, Ministry of Electronics and Information Technology). Records involving security concerns are not shared with users or intermediaries. The memorandum also provides a format of the Blocking Order, stating that under the provisions of section 69A of the Information Technology Act, 2000 and the Website Blocking Rules, certain Twitter URLs propagating objectionable content have been identified and, based on the Committee’s recommendations and the Competent Authority’s approval, Twitter Inc. is directed to block the specified accounts/URLs expeditiously., In the case of Shreya Singhal, the challenge in a social action litigation under Article 32 of the Constitution to the validity of section 69A of the Act and the Website Blocking Rules was repelled by the Supreme Court of India on the ground that Rule 8 provides sufficient substantive and procedural safeguards., Learned Senior Advocates Mister Arvind Datar and Mister Ashok Haranahalli argued that the impugned orders suffer from lack of jurisdiction because section 69A does not authorize the government to direct an intermediary to block an entire account; they contend that the provision is tweet‑specific. They note a marked difference between blocking a user account, which is ex post facto, and blocking a tweet, which constitutes an absolute embargo on both existing and future information. They point to the language of the section, which empowers the Central Government to block any information generated, transmitted, received, stored or hosted in any computer resource, and argue that if Parliament intended to include entire‑account blocking, the language would be different. The Additional Solicitor General repelled this submission, contending that there are no restrictive elements in the language and that a statute enacted to give effect to international conventions must be construed with the principles of purposive interpretation., In dealing with codified statutory law, courts across jurisdictions have observed that the words of an enactment often reflect the intentions of its framers incompletely or inaccurately. When legislators express their thoughts in concise yet general terms, situations are almost invariably omitted that were within the overall intention of the measure. It is not desirable to bind judges to the literal words of a statute when such interpretation might result in an unfair decision that the legislature itself would not have sanctioned. Purposive interpretation gives attention to the true intention of the text’s author, not merely the linguistically expressed intention. If the provisions of section 69A(1) are literally construed, as suggested by the petitioner’s side, that would fail to effectuate the spirit and larger intent of Parliament., The central legislation was enacted in light of the 1997 resolution of the United Nations General Assembly that suggested adoption or revision of the UNCITRAL Model Law on electronic commerce. The original statute contained no provision empowering blocking of websites or tweets. A Ministerial Order dated 7 July 2003 of the Government of India relating to website blocking stated that there is no explicit provision in the Information Technology Act, 2000 for blocking of websites; blocking is taken to amount to censorship, and websites may not claim a constitutional right of free speech. Section 69A was introduced by amendment effective 5 February 2009 in response to the felt need of the time. The provision was introduced with accumulated wisdom from years of experience with the statute., The Apex Court in Transfer Petition Nos. 1943‑1946/2019 in Facebook Inc. vs. Union of India, vide order dated 24 September 2019, observed that the law relating to information technology is still at a nascent stage and technology keeps changing every day, if not every hour. Various creases need to be ironed out. The rapid pace of change repels literal interpretation since language has static elements. Many technical legal terms employed in the statute, as its dictionary clause shows, are not fully self‑explanatory and therefore warrant construction., The language of a statute limits its interpretation. In matters involving construction of biotic legislations of enormous significance, especially in the dynamic cyberspace, courts cannot be swayed solely by literal legislation. They must consider what the law as textually expressed is and what it tends to become to meet challenges that were within the contemplation of the law‑maker. Judge Aharon Barak noted the relevance of purposive interpretation, stating that sometimes it is difficult to know the legislature’s intent, the information about intent may be unreliable, or there may be conflicting intentions., The English courts share a similar view. Lord Diplock in Jones vs. Wrotham stated that he is not reluctant to adopt a purposive construction where applying the literal meaning would defeat the purpose of the Act, but the task remains one of construction, even if it involves reading into the Act words not expressly included., Justice Michael Kirby of the Australian High Court, in New South Wales vs. Commonwealth, took issue with a purely literal interpretation, arguing that the language of a corporation’s power must be read in context with the preceding paragraphs of the statute. He emphasized that context is critical to understanding communication by human language, especially when deriving the meaning of a constitutional text expressed in sparse language designed to apply indefinitely and address a vast range of predictable and unpredictable circumstances., It is pertinent to mention that the petitioner‑company is of American origin. Several United States cases illustrate a purpose‑oriented policy of statutory interpretation, setting legislative intent above the black letter of law. In the 1885 case involving a prohibition on encouraging the importation of aliens for labor, the court refused to interpret the statute literally. In the American Trucking Associations case, the court attacked the plain‑meaning rule, emphasizing that literal interpretation may lead to unjust outcomes.
id_914	2	When the plain meaning has led to absurd or futile results, the Supreme Court of India has looked beyond the words to the purpose of the Act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one plainly at variance with the policy of the legislation as a whole, the Supreme Court of India has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there can certainly be no rule of law which forbids its use, however clear the words may be on superficial examination., Petitioner’s counsel Mr. Manu Kulkarni contended that the past tense of the words namely generated, transmitted, received, stored or hosted occurring in section 69A(1) excludes power to block all future information and therefore, blocking of accounts in their entirety is impermissible. This argument is far‑fetched and is essentially grounded in the linguistic interpretation of statutes. These words appear to have been used in past perfect tense, which is true; however, their verbal form remains the same when employed in present perfect tense and future perfect tense. The text and context of the provision lend support to this view. After all, the rules of grammar cannot jettison the rules of law., In the Nagpal case, a challenge was made to the levy of charges on the water supply under sections 169, 276 and 277 of the Bombay Municipal Corporation Act, 1888 read with the Water Charges and Sewerage and Waste Removal Rules, 1976. By the statutory scheme, levy was permissible only on the basis of ascertainable quantity of water supplied; there was no scope for charging for water yet to be supplied. The Bombay High Court stressed the past tense of the word ‘supply’ and the Supreme Court of India affirmed the same. The municipal subject matter being simple, literal interpretation was admitted and ordinary rules of English grammar and usage were called in aid in construing its provisions., In Giridhar, the Supreme Court of India construed the meaning of the word ‘building’ in light of the expression occurring in the Explanation to section 2(ea)(v) of the Wealth Tax Act, 1957. It observed that the benefit of the clause would be applicable only to a building ‘which has been constructed’; the expression cannot include a building that is not fully constructed or is in the process of construction. The land cannot be treated as occupied by a building that is still under construction., In Mehboob Dawood Shaikh v. State of Maharashtra [2004] 2 SCC 362, the Supreme Court of India held that a decision is a precedent only if it decides a question of law. A judgment should be understood in the light of the facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment divorced from the context of the question under consideration and treat it as complete law., What is being interpreted in the present case is not an ordinary law relating to municipal administration or a statute concerning taxation. It is an important provision of a Central legislation enacted by Parliament in light of an International Convention. It deals with the right to free speech and expression and its regulation on the grounds of interest of the sovereignty and integrity of the nation, among other matters. Therefore, one cannot go for the rules of literal interpretation, which would not effectuate the full intent of the law‑maker. The rulings on statutes of lesser significance that admit literal interpretation do not aid in construing statutes of greater significance and implications. Hence, the approach to the provisions of such a statute must be different from that to a municipal law or a tax law., The term ‘any information’ employed in section 69A(1) of the Act is a genus, and the words generated, transmitted, received, stored or hosted are its species. The variety of these words reflects the expansive intent of the law‑maker. Past tense verb forms can also refer to present and future tense. This diversity does not admit the restrictive argument of the petitioner that section 69A(1) does not envisage account blocking and that the power is tweet‑specific. The tense of a text per se cannot restrict the effectuation of the complete intent of the statute. If the power is exercised, future information that may be innocuous will also be blocked, which, if that is the intent of the law‑maker, an interpretation that would not give effect to the same is liable to be discouraged. Legislative logic and purpose coupled with the realities of the cyber world repel a contrary contention. A statute has to be construed as a living law of the people; it is not a slave of the dictionary nor a captive of grammar. A restrictive interpretation that the ban is tweet‑specific may make the provision otiose. Considering the detailed procedure to be adopted before imposing a ban, which includes a clear 48‑hour notice, the purpose of a ban may be unfulfilled as the subject tweet would have spread like wildfire by then. A tweet‑specific ban may encourage the tweeter to try again; instead, a ban that extends to the account can serve a deterrent effect and thus subserve the objective of the statute., The intent of section 69A of the Act is not merely penal and curative but also preventive. The statute criminalises certain acts by prescribing severe punishment of up to seven years imprisonment and also a fine. When a statute proscribes certain acts, one cannot argue that it has enacted only remedial measures and that the authority must wait till such proscribed acts are committed before punishing the offender. A contrary argument would be akin to saying that the Indian Penal Code, 1860 does not prohibit commission of heinous crimes but only provides for punishing the offender post‑commission. In many jurisdictions, codification of criminal law is linguistically paternalistic; the preventive intent is often left unsaid. The benign state policy to minimise occurrence of crime, whether by deterrence or otherwise, underlies all such codes; the punitive and preventive intents are invariably amalgamated. Professors Andrew Ashworth and Lucia Zedner of Oxford University write that preventive and punitive rationales are intertwined. It makes no sense to suggest that criminal law’s purpose is simply to declare the most serious wrongs and provide for conviction and punishment, as if prevention is not also part of the rationale. Surely it is because these wrongs are serious that it is important to reduce their frequency., The restrictive literal interpretation sought to be placed by the petitioner’s counsel on this significant provision cannot be countenanced without mutilating the true intent of the law‑maker. As a matter of necessity, this provision has to be construed as empowering the Central Government to direct blocking of any information which may include an individual post, tweet, message or the foreclosing of user accounts in their entirety, both of which are identified through a specific URL. Information may already be in existence or may yet be generated. The text, context and expanse of this provision give abundant scope for the argument that there is a lurking norm enacted to avert imminent harm to societal interest at large. The State need not await an avalanche of mishaps; it can take preventive measures in anticipation of danger, especially when undoing the damage would be difficult., Petitioner’s submission that the power to block information is akin to the power of forfeiture under sections 95 and 96 of the Code of Criminal Procedure, 1973, whereas blocking an entire account amounts to preventing all future publications, is attractive at first blush but hollow upon deeper examination. There is a vast difference between the electronic medium and the print medium; electronic transmission occurs at lightning speed and its audiovisual impact is instantaneous and enormous in coverage. In Shreya Singhal, at paragraph 102, it was observed that something posted on a website travels like lightning and can reach millions of persons worldwide. The respondents offered a plausible explanation for blocking accounts of a few users who repeatedly posted highly objectionable tweets with a propensity to incite anti‑national feelings. The decision to block the accounts was not reckless; fairness was exhibited by removing the blockage of ten accounts out of eleven in the Committee meeting held on 30 June 2022, which the petitioner admits., It was argued on behalf of the petitioner that section 69A(1) empowers the Central Government to issue a Blocking Order subject to complying with certain procedure and safeguards, one of which is that reasons must be recorded in writing. The Supreme Court of India in Shreya Singhal at paragraph 114 states that reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution., Manu Kulkarni, learned counsel for the petitioner, submitted that a challenge to a statutory order must be adjudged on the basis of the reasons assigned in its body and that reasons cannot be outsourced from the file or otherwise. He argued that unless the reasons for the decisions are at least made available, a challenge becomes difficult; the authorities ought to have disclosed the reasons, and their failure to do so renders the impugned orders liable to be voided. In support of this submission, he relied on certain rulings., The learned Additional Solicitor General appearing for the respondents contended that the ratio in Mohinder Singh is not of universal application; it depends upon the text and context of the provision and its subject matter. The requirement that reasons be recorded in writing does not mean that they must invariably be part of the order or communicated to the concerned in every circumstance. He stated that where reasons are otherwise made known, there can be no grievance; the representatives of the petitioner who participated in the Committee meeting on 30 June 2022 were apprised of the reasons, and the authorities, being fair, agreed to revoke ten of the eleven accounts after hearing the representatives., Every decision of the authority should be reasoned as a requirement of the principles of natural justice. Reasons are the living links between the material on record and the conclusions drawn. When reasons are given, the application of mind by the decision‑maker is demonstrated. Reasons enable the aggrieved person to decide whether to launch a legal challenge and also assist the Court or Tribunal in adjudicating the validity of decisions. In Mohinder Singh, it is insisted that reasons be part of the statutory order and that they cannot be outsourced by way of pleadings and affidavits, although there are some exceptions to this general rule., Good governance warrants giving reasons for decisions that have civil implications. Ordinarily, when a statute employs the expression ‘reasons to be recorded in writing’, such reasons should be part of the order; when recorded separately, there should be justification and the reasons should be furnished to the person concerned. This view is supported by observations in a case arising under the Income Tax Act, 1961, where the issue of reasons under section 69A(1) did not arise. In Haji Md. case concerning cancellation of a citizen’s gun licence under the erstwhile Indian Arms Act, 1878, the Calcutta High Court observed that the licence‑holder has a right to know the reasons and that the court has a right to look into them, although the reasons need not be communicated in full detail if not in the public interest., The Gujarat High Court, in paragraph 11 of its judgment, held that although Rule 41‑B allows a copy of the reasons to be withheld unless the person affected requests them and disclosure is not prejudicial to public interest, the reasons must still be recorded in writing and, if an appeal is preferred, must be communicated to the appellate authority on demand. Failure to observe this safeguard defeats the object of the provision., In Maneka Gandhi v. Union of India, the requirement of furnishing reasons for impounding a passport of an Indian citizen was discussed. The power to refuse to disclose reasons for impounding a passport is of an exceptional nature and must be exercised fairly, sparingly and only when fully justified by the exigencies of an uncommon situation. The reasons, if disclosed, are open to judicial scrutiny; refusal to disclose them solely to keep them away from judicial scrutiny is impermissible., On the basis of a brief survey of the law relating to communication of reasons, it can be summarized, subject to justified exceptions, that furnishing reasons for a decision is a mandate of natural justice. Legislatures may trim, tone down or expand these principles. Broadly, statutes fall into two categories: those that merely employ the expression ‘reasons to be recorded in writing’ and those that specifically require ‘reasons to be recorded and communicated’. More than 700 central legislations belong to the former category, whereas only three – the Indian Statistical Institute Act, 1959 (section 11), the Asiatic Society Act, 1984 (section 12) and the Kalakshetra Foundation Act, 1993 (section 27) – fall into the latter. Where the statute mandates recording of reasons and their communication, the authorities have no discretion to disobey. Where only recording is required, whether reasons must be communicated depends on factors such as the text and context of the provision, the policy of the statute, the subject matter, the stature of the decision‑making authority, and the status of the persons seeking reasons., A Five‑Judge Bench observed that it was contended that if reasons are not recorded in the final order, they must be communicated to the concerned government servant to enable him to challenge the validity of those reasons in a departmental appeal or before a court, and that failure to communicate the reasons would invalidate the order. This contention cannot be accepted. The constitutional requirement in clause (b) is that the reason for dispensing with the inquiry should be recorded in writing; there is no obligation to communicate the reason to the government servant. This observation was made in the context of a departmental enquiry of a civil servant, which is not comparable to the present case. When a statute employs the expression ‘reasons to be recorded in writing’, ordinarily the reasons should be part of the order so that when a copy of the order is served, there is communication of reasons too. However, where the reasons are recorded separately in a file, they need to be communicated to the aggrieved at least on demand. Even where the statute empowers withholding of recorded reasons, the authority must assign a reason for not sharing them. Courts or appellate authorities can call for the records and examine the reasons even when the statute provides for withholding. Cases where files are withheld for reasons of the State are rare., In light of the discussion on communication of reasons, the petitioner contended that the impugned orders are bad because the reasons on which they are founded have not been communicated despite request. This is denied by the learned Additional Solicitor General, who showed the sealed cover furnished to the Court on 31 August 2022. The cover, opened with the consent of all stakeholders, comprises 455 pages, including an interim order dated 31 January 2021, a final order dated 2 February 2021, a notice dated 27 June 2022 directing compliance, a list dated 1 July 2022 of URLs recommended for unblocking, compliance reports, consolidated copies of show‑cause notices, hearing notices, minutes of meetings, details of 39 URLs/accounts and the corresponding justification, and objectionable content., The blocking orders are found in Exhibit R5, pages 115 and 125 of the sealed documents. The interim order dated 31 January 2021 comprises 256 Twitter URLs and one hashtag. Its unnumbered paragraphs state that the evidence shared by the law‑enforcement agency indicates that the URLs and hashtag are spreading fake news and misinformation about the ongoing farmer protest and are promoting protest against the proposed farm bill. The contents have the potential to cause imminent violence affecting public order and security of the State. The final order dated 2 February 2021 reiterates that the use of the term ‘genocide’ was wilfully misleading and likely to lead agitating farmers to wrong conclusions about the government’s intentions, and therefore recommended continuation of the blocking., The learned Additional Solicitor General is correct in contending that these details demonstrate the application of mind by the Committee and the respondents. Apart from translations of tweets and the grounds under section 69A, Exhibit R12 contains evidentiary material with extracts of objectionable tweets and URLs that were shared with the petitioner. It is not the case that these details were not furnished. The pages relate to specific accounts that were repeat offenders with propensity to repost objectionable content. Consistent with the policy of the statute and the Rules, the full particulars of objectionable content have not been reproduced., This Court is convinced of the contention of the learned Additional Solicitor General that the blocking orders are reasoned decisions founded on solid law, facts and evidentiary material. The objectionable content comprises tweets, pictures and audio/video screenshots that are outrageous, treacherous, anti‑national and have a propensity to incite offences relating to sovereignty, integrity of India, security of the State and public order. No reasonable person would agree with the petitioner’s claim that reasons for the impugned orders are lacking. Sufficiency of evidence or reasons belongs to the domain of the authority. The statutory committee comprises high‑ranking government officials and there is no allegation of mala‑fide. The Designated Officer, after considering the Committee’s recommendations, passes the order, which is an institutional decision., The petitioner’s vehement submission that even if the entire sealed cover material is perused, no reasonable person can opine that the petitioner had sufficient opportunity of representation is rejected. The petitioner is not a poor farmer, a menial labourer, a villager or a novice who could have pleaded inability to understand the objectionability of the tweets and the evidentiary material.
id_914	3	It is a multinational IT company whose annual revenue generation is about 5 Billion US dollars, as submitted by learned Additional Solicitor General. It has technical teams having expertise in the matter relating to law and procedure of Website Blocking not only in India but in other parts of the globe too. Its representatives who admittedly participated in several meetings of the Committee never indicated to the authorities the grievances that are being now aired., Learned counsel for the petitioner in all fairness admitted during the course of hearing that the respondents, being convinced of the submission of these representatives, agreed to unblock 10 of the 11 user accounts; this they did vide order dated 1 July 2022 at Annexure-P. After all, giving reasons is an aspect of fairness. If processual fairness in the governmental action is otherwise exhibited, the procedural infirmity of not communicating the reasons in a formal way would not assume significance. That being the position, the contention of absence of communication of reasons falls to the ground. For the same reason, the contention as to non‑application of mind and frugality of opportunity of hearing would also fail., Learned Senior Advocates Mr Arvind Datar and Mr Ashok Haranahalli appearing for the petitioner vehemently submitted that where law prescribes a certain procedure for accomplishing certain things, what is prescribed has to be meticulously observed as a sine qua non. In support of that they pressed into service the principle that no Blocking Order can be made without notice to the user whose account is sought to be blocked, as much as the Supreme Court of India in Shreya Singhal, supra, has prescribed hearing of the originator as defined under Section 2(za) of the Information Technology Act, 2000, 34 (1976) 2 SCC 128, paragraph 18. In view of the above, I am of the considered opinion that the impugned orders are speaking orders and there is a thick nexus between the orders and reasons assigned, and further that these reasons were disclosed to and discussed with the petitioner in the Committee meetings., The Additional Solicitor General contended that the provisions of Section 69A of the Act have to be read with the working provisions of the Website Blocking Rules namely Rules 8 and 9. The question of issuing notice to the user of an account would arise only where he is identifiable, all his particulars exclusively lying with the intermediary; at no point of time were such particulars furnished nor was issuance of notice sought for. Even otherwise, in the guise of faltering the procedure adopted, the petitioner cannot espouse the cause of account users who have not aired any grievance. In support of his contention, he also relied upon certain observations in Shreya Singhal., Section 69A of the Act provides that Blocking Orders can be made in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign countries or public order. It can also be made for preventing incitement to commission of any cognizable offence relating to these specified grounds. Rule 8(1) of the Website Blocking Rules, which is reproduced above, prescribes issuance of notice to the user of the account where he is identified or to the intermediary. The Additional Solicitor General is right in emphasizing that the text of this Rule employs the word “or” occurring between such person and intermediary and therefore the rule‑maker’s intent is disjunctive and not conjunctive. The Supreme Court of India at paragraph 113 of Shreya Singhal noted that there is no pre‑decisional hearing afforded by the Rules to the originator of information., At paragraph 114, the Supreme Court observed: It is also clear from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the “person”, i.e., the originator, is identified he is also to be heard before a blocking order is passed. Mr Manu Kulkarni’s submission that the observations in Shreya Singhal at paragraphs 115 and 121 lend credence to the view that “or” should be read as “and” is too far‑fetched. It is not that the court was employing the doctrine of reading down or reading up of Rule 8 to sustain its validity. The subject observation cannot be construed as metamorphosing the disjunctive “or” into a conjunctive “and”. In Shreya Singhal, the Supreme Court was enlisting the reasons from the text and context of Section 69A and Rules 8 and 9 of the Website Blocking Rules. It hardly needs to be stated that the observations in a judgment cannot be construed as the provisions of a statute., What is said in Union of India v. Major Bahadur Singh runs as follows: Courts should not place reliance on decisions without discussing how the factual situation fits with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments., The submission of the petitioner’s counsel that Rule 8(1) of the Website Blocking Rules imposes a duty on the Designated Officer to make all reasonable efforts to identify the user of the account is only a half‑truth inasmuch as even there the expression employed is to identify the person or intermediary. The disjunctive “or” is used, giving an option to the authority to identify either the user of the account or the intermediary. The word “both” is conspicuously absent in the Rule. It is not as though the petitioner had furnished particulars of users of the accounts and even then the respondents chose not to notify them. Sections 69A(2) and 87 of the Act, among other provisions, confer rule‑making power on the Central Government; sub‑section (3) of Section 87 prescribes laying procedure. After being laid, Parliament has not altered their text, particularly of Rules 8 and 9, to accord with the petitioner’s argument. If Parliament intended that both the intermediary and the user of the account should be entailed with notice, it would have simply substituted the word “and” for “or”, such a power apparently availing from the very text of Section 87(3)., Mr Manu Kulkarni’s observations come to his aid. It was a case relating to appointment of Special Judges for the trial of cases or class of cases; the government had the power to make appointment; it was in that context that the following observations were made: The word ‘or’, which is a conjunction, is normally used for the purpose of joining alternatives and also to join rephrasing of the same thing but at times to mean ‘and’ also. Alternatives need not always be mutually exclusive. Moreover, the word ‘or’ does not stand in isolation and, therefore, it will not be proper to ascribe to it a meaning which is not consistent with the context of Section 3. It is a matter of common knowledge that the word ‘or’ is at times used to join terms when either one or the other or both are indicated. Section 3 is an empowering section and depending upon the necessity the Government has to appoint Special Judges for an area or areas or case or group of cases. Even in the same area where a Special Judge has already been appointed, a necessity may arise for appointing one more Special Judge for dealing with a particular case or group of cases because of some special features of that case or cases or for some other special reasons. We see no good reason to restrict the power of the Government in this behalf by giving a restricted meaning to the word ‘or’. In our opinion, the word ‘or’ as used in Section 3 would mean that the Government has the power to do either or both the things., The emphasised portion in the above observations gives discretion to the government to do either or both, as rightly contended by the Additional Solicitor General. At paragraph 64 of the Statement of Objections of the Respondents it is plausibly explained why no notice was issued to the users of accounts: the objectionable contents posted by them were anti‑India and seditious. They had religious contents that were designed to incite violence and affect communal harmony in the country. A section of originators of the information comprised terrorists, sedition seekers or their sympathisers, foreign adversaries who intend to discredit and destabilise India and jeopardise national security on communal lines. In a way such users are anti‑India campaigners. It is not desirable to issue notice to such users about the proposed action. Informing the user by notice will only cause more harm. The user will get alert of the same and become more aggressive, change his identity and will try to do more harm by either becoming anonymous and spreading more severe content through multiple accounts from the same platform or from other online platforms., This considered view of the respondents is supported by the observations of the English Court in Cartier defendants’ argument of availability of alternative measures to combat the infringements of trade marks. One such measure was notice and takedown. At paragraph 198, it is observed: the registrants may not be the actual operators of the target websites. Experience in the copyright context shows that it is frequently difficult to identify the real operators of offending websites and that attempts to bring proceedings against the operators are rarely effective., Assuming the petitioner is right in saying that Rule 8 of the Website Blocking Rules prescribes a duty to issue notice to the user of the account, that requirement is because of the constitutional guarantee enacted in Article 19(1)(a) of the Constitution and that any regulation of the right to free speech and expression has to be both substantively and procedurally reasonable. Since Blocking Orders have implications on the exercise of that right, the government may in its discretion hear the users of the account. However, none of them has come forward to complain of infringement of their right. It is not that they are all downtrodden members of society or otherwise suffer from some handicap and therefore are disabled from working out the remedies on their own. Apparently, they are literate; presumably have more exposure to the outer world, as the very objectionable content of their posts would indicate. It is not that the petitioner is espousing their cause, such espousal obviously not being legally sanctioned. It is also not that they have authorized the petitioner to launch this legal battle on their behalf., The petitioner, being an intermediary, cannot invoke Rule 8(1) as a launchpad of its tirade, when apparently the said Rule is promulgated to protect the interests of only users of the account and not others. Such a view finds sustenance from Gorris v. Scott. Facts very briefly stated are: Plaintiff’s sheep were washed overboard while being transported by sea. He sued the defendant for damages. He unsuccessfully attempted to establish carrier’s negligence by showing that it had violated a regulation that required animals on shipboard being kept in pens of a certain size. Had the defendant complied with the statutory requirement, the plaintiff argued, the sheep would not have been washed overboard. The court refused to find negligence on the basis of this violation holding that the Rule was not meant to protect animals from being washed overboard, but rather to prevent spread of disease. This decision has been approvingly cited by the common‑law rule that a plaintiff may not recover under the law of negligence for injuries caused by violation of a statute unless the statute is interpreted as designed to protect the class of persons in which the plaintiff is included, against the risk of the type of harm which has in fact occurred as a result of its violation. In view of the above discussion, I am of the considered opinion that notice to users of account in terms of Rule 8(1) of the Website Blocking Rules is not mandatory and that in any event, the absence of such notice does not avail to the intermediary as a ground for assailing the Blocking Orders., Learned Senior Advocates appearing for the petitioner vehemently submitted that the impugned orders, at least to the extent of blocking the accounts in their entirety, fall foul of the doctrine of proportionality and therefore are liable to be invalidated. They submitted that there is a difference between the power to block individual tweets and the power to block an account in a wholesale way. They hasten to add that while taking the decision to block the information or accounts, the authorities have not kept in view the principle thus far and no further. They pressed into service the decision of the Supreme Court of India in Akshay Patel v. RBI., The Additional Solicitor General appearing for the respondents repels these submissions contending that the doctrine of proportionality itself is of varying import and of restrictive invocation. He also highlights the circumstances that resulted in blocking of 11 accounts and 9 of them being revoked after considering the version of the petitioner’s representatives in the Committee meetings., The proportionality doctrine, essentially in modern constitutional law, serves various functions. The Supreme Court of India has formulated the fundamental precepts of proportionality as follows: (1) A law interfering with fundamental rights must be in pursuance of a legitimate state aim; (2) The justification for rights‑infringing measures must be based on the existence of a rational connection between those measures, the situation in fact and the object sought to be achieved; (3) The measures must be necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim; (4) Restrictions must not only serve a legitimate purpose; they must also be necessary to protect them. In view of the aforesaid discussion, the requirements of the doctrine of proportionality which must be followed by the authorities before passing any order intending to restrict fundamental rights of individuals are: determine the legitimate goal, assess any alternative mechanism, evaluate necessity and least‑restrictive measure, and ensure the order is supported by sufficient material and amenable to judicial review., It is unmistakable that the doctrine was employed while adjudging the reasonableness of restrictive action in the light of constitutional guarantee of speech and expression and liberty and privacy of persons and not the juristic entity of a foreign country like the petitioner herein, who cannot claim such protection. The said doctrine may be invoked to adjudge the pleaded statutory excess. The phrases “thus far and no further” and “least intrusive measure” are used in cases that involve complaint of violation of fundamental rights guaranteed under Article 19(1). As already observed, this guarantee cannot be claimed by the petitioner which is a juristic person and a foreign entity., The Additional Solicitor General is right in pointing out that even from the view of the proportionality principle, the impugned orders cannot be faltered, the same having come into being after adhering to due process of law, both substantive and procedural. Complaints against tweets and accounts were made by a high functionary of the Union Government; the same having been examined by a statutory committee comprising again of high functionaries, recommended the action, and accordingly the Designated Officer who is not below the rank of a Joint Secretary in the Central Government, took the action in challenge. Representatives of the petitioner have participated in the Committee deliberation. On their submission, 10 of the 11 accounts have been cleared from blocking. The petitioner’s contention that the respondents ought to have segregated objectionable content at the tweet level and thereafter resorted to tweet‑level blocking is liable to be rejected since such an exercise is impracticable inasmuch as the mischievous originators of the information would deliberately mix provocative tweets or illegal contents with the so‑called innocuous ones. That apart, segregation would not achieve the intended goal especially after the subject tweets are shared thousands of times before any action can be taken against them. The URLs in question have been identified and curated based on the use of a specific hashtag and also on tweets that related to such hashtags. An exercise to differentiate amongst the individual tweets in an account and segregate the offending ones from the innocuous is impracticable and would not serve the statutory purpose. This apart, the scope of Blocking Orders is limited to Indian jurisdiction. Therefore, the petitioner’s argument that the blocking orders ought to have been confined to individual tweets and not extended to the entire handle, and therefore, the impugned orders suffer from the vice of disproportionality, cannot be agreed to., The Additional Solicitor General stoutly asserted that the petitioner has permanently suspended @realDonaldTrump, the Twitter account of a former United States President and thereby has completely de‑platformed the account holder citing public interest framework. A specific plea as to this has been taken at paragraph 36 of the respondents’ convenience compilation dated 10 April 2023. This assertion is not denied by the petitioner either in writing or otherwise. The official blog of the petitioner dated 8 January 2021 reads as follows: After close review of recent Tweets from the @realDonaldTrump account and the context around them specifically how they are being received and interpreted on and off Twitter we have permanently suspended the account due to the risk of further incitement of violence. In the context of horrific events this week, we made it clear on Wednesday that additional violations of the Twitter Rules would potentially result in this very course of action. Our public interest framework exists to enable the public to hear from elected officials and world leaders directly. It is built on a principle that the people have a right to hold power to account in the open. However, we made it clear going back years that these accounts are not above our rules entirely and cannot use Twitter to incite violence, among other things. We will continue to be transparent around our policies and their enforcement., The above action of the petitioner and the reasons on which it is founded supports the case of the respondents that a direction or blocking of accounts as an extreme measure can be given and there is nothing unusual in that. The petitioner has taken such a decision on its own and in terms of the Twitter User Agreement, does not diminish its citation value., The Additional Solicitor General is justified in placing reliance on the contention that an extreme measure of blocking the accounts can also be resorted to effectuate the object of the statute. The England and Wales High Court, treating a case involving trade mark violation, discussed the doctrine of proportionality qua blocking of user accounts, keeping in view the availability of alternate measures to combat the infringement of trade marks by the defendant in the teeth of provisions of the Copyright, Designs and Patents Act, 1988. The court ruled that website blocking has its own advantages over notice and takedown. In assessing the question of proportionality and efficacy, the court at paragraphs 232, 236 and 261 observed: without blocking there would be an increase in the overall level of infringement; blocking of targeted websites has proved reasonably effective in reducing use of those websites in the United Kingdom; having given careful consideration, the conclusion I have reached, after some hesitation, is that it is justified. Accordingly, I consider that the orders are proportionate and strike a fair balance between the respective rights holders that are engaged, including the rights of the individuals that may be affected by the orders, but who are not before this Court. It is pertinent to note that it was not a case of infringement of any fundamental right but involved violation of a simple trade mark right. Therefore, what is observed therein bolsters the stand of the respondents. A writ court cannot sit in appeal over the subjective satisfaction of high functionaries of the Central Government in issues pertaining to sovereignty and integrity of the nation, security of the State and law and order, that essentially fall within the domain of the Executive. The judicial wing of the State has to show due deference to the decisions of other wings, especially when such decisions have been taken in the normative process and with the participation of stakeholders., It is the vehement submission of Mr Manu Kulkarni that in the prominent foreign jurisdictions referred to above, Blocking Orders can be issued for a specific period and after the expiry thereof, such orders dissolve on their own and therefore, the impugned orders which continue in operation indefinitely offend the rule of reason and justice. He also argued that this court should issue guidelines to ensure that such Blocking Orders are made limited in duration and susceptible to review at the hands of authorities. As already observed above, the power to issue Blocking Orders under Section 69A(1) of the Act read with Rules 8 and 9 of the Website Blocking Rules is marked by its enormity. Section 21 of the 1897 Act reads as follows: “Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye‑laws. Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye‑laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add to, amend, vary or rescind any notifications, orders, rules or bye‑laws so issued.” The text of the above provision being as clear as gurgling waters admits no interpretation. It is open to the Central Government or Designated Officer to make the Blocking Orders period‑specific too., Rule 8(6) of the Website Blocking Rules also supports this view. The petitioner’s argument that this court should lay down broad guidelines to regulate the exercise of such discretion cannot be countenanced for more than one reason: firstly, there are enough checks and balances that regulate the exercise of that power in the light of Shreya Singhal; secondly, the periodicity of such orders is a matter left to the discretion of the Executive in the exercise of which a host of factors would enter the fray and most of them are judicially unassessable. Classification of the cases for prescription of periodicity or reviewability is essentially a matter of policy, and therefore courts cannot interfere, the doctrine of separation of powers being one of the basic features of our Constitution. Even if this court were to lay down guidelines for regulating discretion of the kind, it declines its exercise at the instance of a foreign entity engaged in speculative litigation. An argument to the contrary has trappings that run repugnant to the sovereignty of the nation. Lastly, there is no sufficient empirical data that supports the argument of abuse of power which is structurally exercised. No provision in the Act nor in the Website Blocking Rules is pointed out to show that the respondents are under a legal duty to consider the request for review of the Blocking Orders. Thus, grievance in this regard is not justiciable. If such requests are considered by the respondents, that would be ideal and appreciable, is true., The text and context of Section 69A of the Act and the Rules 8 and 9 of the Website Blocking Rules leave no manner of doubt as to their importance and significance in cyberspace. As already mentioned above, Section 69A(1) almost employs the terminology of Article 19(1)(a) of the Constitution. In Shreya Singhal, the challenge to this provision and the Rules was considered. In view of the above, I am of the considered opinion that the impugned orders blocking the tweets and accounts for an indefinite period are unassailable on the doctrine of proportionality. The provision and the Rules have been repelled by the Supreme Court after noting the eminent justification for their being on the statute book. In Facebook Inc., what is observed hereunder shows the enormity of harm that may be caused by the objectionable tweets and messages if left unregulated: The main issue arising in these petitions is how and in what manner the intermediaries should provide information including the names of the originators of any message or content shared on the platforms run by these intermediaries. There are various messages and content spread on social media, some of which are harmful. Some messages can incite violence. There may be messages which are against the sovereignty and integrity of the country. Social media has today become the source of large amount of pornography. Paedophiles use social media in a big way. Drugs, weapons and other contrabands can be sold through the use of platforms run by the intermediaries. In such circumstances, it is imperative that there is a properly framed regime to find out the persons or institutions or bodies who are the originators of such content or messages. It may be necessary to get such information from the intermediaries. The compilation filed by the Additional Solicitor General contains the legal frameworks concerning the regulation of information obtaining across the globe and that itself shows the significance of the statute in general and the pivotal role Section 69A of the Act is designed to play. As already mentioned, compared to other media, the electronic medium has two marked characteristics, namely the lightning speed with which the information is disseminated and the enormity of its coverage across the globe. Social media transcends the boundaries of time and space; it has a cascading effect. The context in which interactive social media dialogue takes place is quite different from the one in which such communication takes place in other modes. The Supreme Court in Secretary, under: What distinguishes the electronic media like the television from the print media or other media is that it has both audio and visual appeal and has a more pervasive presence. It has a greater impact on the minds of the viewers and is also more readily accessible to all including children at home., The tweets and URLs have elements of spontaneity both in terms of dissemination of information and impact on the mind of viewers. That is the reason Rule 9 of the Website Blocking Rules provides for making an interim direction for blocking the tweets and accounts. The Additional Solicitor General pointed out that the petitioner purposefully perpetrated inordinate delay in complying with Section 69A orders despite warning. Some of these orders made in 2021 remained uncomplied for more than a year. Clandestinely, at paragraph 3 of the petition, it is averred: At the outset, the petitioner places on record that it has complied with the Blocking Orders that form part of the present challenge, under protest.
id_914	4	Three of these orders were made in February 2021, two in June 2021, five in the second half of 2021 and the last one was made on 28 February 2022. Which order was complied with when has not been particularised in the pleadings. The petition itself has been filed on 5 July 2022. The non‑compliance with Section 69A orders has the potential to make the tweet more viral and spread to other platforms as well. One can imagine the damage potential when such objectionable tweets are allowed to be disseminated despite interdiction. The damage potential is directly proportional to the delay brought in the compliance of such orders. Petitioner has demonstrably adopted a tactical approach to delay compliance and that shows its intent to remain non‑compliant to Indian law. No plausible explanation is offered for the delay in approaching the Supreme Court of India, either. Petitioner has abruptly complied with Section 69A orders a bit before coming to court, though the second respondent had issued a compliance‑requirement notice way back on 2 February 2021 threatening:, It needs to be mentioned that Section 69A(3) provides for specific penal consequences in case of non‑compliance of the directions issued under Section 69A of the Act. The penalty prescribed under Section 69A(3) for the offence of non‑compliance of the order is imprisonment for a term which may extend to seven years and/or fine. The Central Government, in its discretion, did not choose to prosecute the petitioner for the offence in question. It hardly needs to be reiterated that the Supreme Court of India does not come to the aid of litigants whose hands are soiled or who are indolent. It is observed as under:, It is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and brings in its train new injustices., Petitioner’s pleadings, copies of documents accompanying the same and the rulings cited from the side of the petitioner run into hundreds of pages. To counter petitioner’s case, respondents also have filed their pleadings, documents and rulings, as of compulsion and they are voluminous. This petition was heard for days together, keeping at bay worthier causes of native litigants who were waiting in a militant silence and in a long queue. As already observed above, for more than a year the Blocking Orders were not implemented by the petitioner and there is no plausible explanation offered therefor. There is a willful non‑compliance of the Blocking Orders; arguably, such an act amounts to an offence under Section 69A(3) of the Act. The cascading adverse effect of non‑compliance of such orders needs no research. In view of the above, this High Court is of the considered opinion that the petition is hit by delay and laches and culpable conduct of the petitioner and therefore, no relief can be granted in the equitable jurisdiction constitutionally vested under Articles 226 and 227., Abruptly, the impugned orders have been implemented with a clandestine caveat of reserving the right to challenge. This is a classic case of speculative litigation and therefore, petitioner is liable to suffer levy of exemplary costs., The Honorable Supreme Court in LIFE INSURANCE instructively observed as under: In the case before us, as if to befit the might of the financial giants involved, innumerable documents were filed in the High Court, a truly mountainous record was built up running to several thousand pages and more have been added in this court. Indeed, there was no way out; we also had the advantage of listening to learned and long‑drawn‑out, intelligent and often ingenious arguments, advanced and dutifully heard by us. In the name of justice, we paid due homage to the causes of the high and mighty by devoting precious time to them, reduced, as we were, at times to the position of helpless spectators. Such is the nature of our judicial process that we do this with the knowledge that more worthy causes of lesser men who have been long waiting in the queue have been blocked thereby and the queue has consequently lengthened. Perhaps the time is ripe for imposing a time limit on the length of submissions and a page limit on the length of judgments. The time is probably ripe for insistence on brief written submissions backed by short and time‑bound oral submissions. The time is certainly ripe for brief and modest arguments and concise and chaste judgments. In this very case we heard arguments for 28 days and our judgment runs to 181 pages and both could have been much shortened. We hope that we are not hoping in vain that the vicious circle will soon break and that this will be the last of such mammoth cases. We are doing our best to disentangle the system from a situation into which it has been forced over the years by the existing procedures. There is now a public realisation of the growing weight of the judicial burden. The cooperation of the bar too is forthcoming though in slow measure. Drastic solutions are necessary. We will find them and we do hope to achieve results sooner than expected., In adjudging the nature and quantum of costs, what has been observed in VINOD SETH versus DEVINDER BAJAJ needs to be borne in mind: The provision for costs is intended to achieve the following goals: It should act as a deterrent to vexatious, frivolous and speculative litigations or defences. The specter of being made liable to pay actual costs should be such as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence. Costs should provide adequate indemnity to the successful litigant for the expenditure incurred by him for the litigation. This necessitates the award of actual costs of litigation as contrasted from nominal or fixed or unrealistic costs. In the above circumstances, this petition being devoid of merits is liable to be dismissed with exemplary costs, and accordingly it is. Petitioner is levied with an exemplary cost of Rs.50,00,000 (Rupees Fifty Lakh) only, payable to the Karnataka State Legal Services Authority, Bengaluru, within 45 days, and delay if brought attracts an additional levy of Rs.5,000 (Rupees Five Thousand) only per day. This High Court places on record its deep appreciation for the able assistance rendered by a Chamber Intern, Mr. Chanakya Subbaramaiah.
id_915	0	Heard Mr Jayanth Nath, learned senior counsel for the appellant. Neither the counsel for the Calcutta High Court nor that of the contesting respondents would want to make their submissions. While the counsel for the Calcutta High Court submitted that any decision of this Court would be duly implemented, it is the say of the counsel for the contesting respondents that they have no desire to pursue the matter further. Counsel for the State have stated that appropriate orders may be passed based on the position it has taken., The appellant joined the Judicial Service in 1989 as a Civil Judge, Junior Division. With the approval of the Full Bench, he was deemed suitable for empanelment in the rank of West Bengal Higher Judicial Services. Accordingly, a communication was sent by the Calcutta High Court to the Principal Secretary to the Government of West Bengal dated 24 December 2003. The relevant part of the aforesaid is reproduced: “I am directed to say that the following officers have been found suitable for empanelment in the rank of West Bengal Higher Judicial Service in this meeting held on 13 December 2003 and approved by the Full Bench by circulation dated 23 December 2002: No. Name of the Officer Designation … 28. Shri Uttam Kumar Shaw S.D.J.M. Kalna … I request that the Government may be moved to issue necessary orders in the matter of appointment of the aforesaid officers, on promotion to the West Bengal Higher Judicial Services after replacing the service of the concerned officers who are holding or are in deputation post in Government or in the other Institution already communicated under Calcutta High Court letter No. 8553‑A, dated 23 December 2003. I add that on receipt of orders/notification from the Government the orders will be issued. This may be treated as extremely urgent.” The appellant was posted as a Fast Track Judge., New rules in the form of the West Bengal Judicial (Conditions of Service) Rules, 2004 came into effect from 1 October 2004. Under these rules, three modes of recruitment and appointment with the appropriate percentage were prescribed, and seniority shall be fixed with respect to the 40‑Point Roster System against the vacancies that arise. The purpose of these regulations was to fill all vacancies in the District Judge cadre as they occur., The learned counsel for the appellant submitted that several vacancies arose from 2004 to 2008, against which the appellant was eligible. The Calcutta High Court was unsuccessful in its efforts to fill the vacant posts. In 2009, vacancies were finally filled both through direct recruitment and the selection of jump promotees through a limited competitive examination among qualified Senior Judges in the cadre of Civil Judge, Senior Division., A draft notification was published by the Calcutta High Court in 2011 by which the promotees, just like the appellant, were placed below the two categories recruited/promoted in 2009. Noting that such persons were entitled to be considered in the vacancies that arose between 1 October 2004 and 31 December 2008, the earlier draft notification was superseded by a subsequent one dated 29 November 2016. The draft gradation list stated: “Sub: Publication of fresh draft Gradation List for the officers covered in the list belonging to the cadre of District Judge (Entry Level) against the vacancies for the period from 1 October 2004 to 31 December 2008. Sir, I am directed to inform that the Hon’ble Calcutta High Court has been pleased to prepare a fresh Draft Gradation List for the officers covered in the list belonging to the cadre of District Judge (Entry Level) of the West Bengal Judicial Service, against the vacancies occurred during the period from 1 October 2004 to 31 December 2008, in supersession of the previous Draft Gradation List duly published on 4 April 2013, and to direct for publishing the same inviting views/objections, if any, from the officers covered in the list within a period of fifteen days from the date of its publication. I am, accordingly, to request you to cause circulation of the same amongst all the officers appearing in the enclosed list, posted in your judgeship/on deputation, at the earliest enabling them to submit views/objections, if any, so that the same is reached at this end positively by the stipulated fifteen days’ time.” (Details of officers and vacancies follow.), Incidentally, it has been stated that the gradation list of officer promotions beginning in 2009 will be published in due time. Thus, the Calcutta High Court deems it appropriate to consider the names, including that of the appellant, for appointment in the cadre prior to 2009, by placing them above the two other categories i.e., recruited/promoted. Apparently, this is for the reason that the mistake at the hands of the Calcutta High Court needs to be remedied. The others appointed in 2009 were not born in the cadre at that relevant point of time., The draft gradation list, merely calling for objections, was put into challenge before the Calcutta High Court on the judicial side. The writ petition filed was allowed as the rules have come into vogue, and thus the 40‑Point Roster has to be followed. On a challenge, the Division Bench, while concurring with the views of the learned Single Judge in part, followed its earlier order in declining relief to the appellant., The learned counsel appearing for the appellant submitted that the fact that he was promoted to the rank of West Bengal Higher Judicial Service in 2003 by the proceeding dated 24 December 2003 has been overruled. It is only an administrative act in posting him to function as a Fast Track Court Judge as there was no bar to posting to any other post in the cadre of a District Judge. The mistake was that of the Calcutta High Court which was sought to be rectified by the impugned draft list published by the Registrar (Judicial Service), Calcutta High Court, Appellate Side, dated 29 November 2016 against the vacancies available from 2004 to 2008. No promotion whatsoever took place during that period. It is not as if all the promotees would get seniority on a particular date but the date on which a vacancy is made available against each of them is sought to be reckoned as the date of appointment. If that is so, the date of appointment of the appellant as a District Judge (Entry Level) would be 1 March 2008. The direct recruits or the jump promotees were admittedly recruited and promoted in 2009 alone. As a District Judge he was merely asked to man the Fast Track Court. The position prior to the 2004 Rules is that there was only one channel of promotion to the post of District Judge (Entry Level). As facts not being considered in the correct perspective, the orders passed are required to be overturned., We have already recorded the position taken by the counsel appearing for the respondents. At the outset, we do believe that the writ petition, as filed, ought not to have entertained a draft gradation list calling for objections. Be that as it may, we would like to decide the matter on merits, particularly when a specific stand has already been taken by the Calcutta High Court also., We do not find any error in the administrative decision taken by the Calcutta High Court in facilitating the issuance of the impugned communication calling for objection on the premise that eligible officers will have to be fitted against the vacancies for the period from 1 October 2004 to 31 December 2008. It is a fair acknowledgment on the part of the Calcutta High Court to redeem the mistake committed in not promoting the officers at the appropriate time. One cannot withhold the due promotion of the promotees till the date of recruitment of the direct recruits or appointment of the jump promotees. The consequence would obviously be disastrous., We have also noted that it is not as if all the promotees were fitted in the vacancies of the year 2004 but it was spread over between 2004 to 2008. This is notwithstanding the fact that a decision was taken way back in 2003 to promote as District Judges. In such view of the matter, the orders passed by the Calcutta High Court may require interference. However, we make it clear that giving effect to the impugned draft gradation list cannot be made applicable to other officers who are not before us. Any implementation might have a serious civil consequence, and we are inclined to observe so., We have also been informed by the counsel appearing for few of the contesting respondents that names of some of them have already been cleared by the Collegium of the Calcutta High Court as well as this Court, and therefore we make it clear that this judgment will not have any bearing on such persons., The appeal stands allowed. The judgments rendered by the learned Single Judge and that of the Division Bench of the Calcutta High Court stand set aside. The Calcutta High Court and the State Government are directed to give effect to the impugned draft gradation list insofar as the appellant alone is concerned, within a period of twelve weeks from the date of receipt of the copy of this judgment. Pending applications, if any, stand disposed of.
id_916	0	Date of Decision: 31.10.2023 Taswwar Khan Petitioner Versus State of Haryana Respondent Raju Singh Petitioner Versus State of Haryana Respondent Ramesh Tuteja Petitioner Versus State of Haryana Respondent Present: Mr. Kamal K. Chaudhary, Advocate, for the petitioner (CRR-2161-2023). Mr. Johan Kumar, Advocate for the petitioner (CRR-2390-2023). Dr. Anmol Rattan Sidhu, Senior Advocate with Mr. Pranshul Dhull, Advocate, for the petitioner (CRR-2350-2023). Mr. Pawan Jhanda, Director General of Police, Haryana., By this order, I propose to dispose of three petitions i.e. CRR-2161-2023, titled Taswwar Khan vs. State of Haryana; CRR-2390-2023, titled Raju Singh vs. State of Haryana; and CRR-2350-2023, titled Ramesh Tuteja vs. State of Haryana; involving a common question of law, arising out of FIR No.148 dated 15.03.2023, under Sections 21C, 22B and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, registered at Police Station SGM Nagar, Faridabad., Facts necessary to be noticed for disposal of the petitions, shorn of unnecessary details, are that on a secret information, the instant FIR was registered and the premises of petitioner Taswwar Khan were raided, upon which 80 capsules of Tramadol and 14 bottles of Codeine (100 ML each) were recovered. The total quantity of Codeine came to be 1400 ML and it constituted commercial quantity. However, the total weight of Tramadol recovered from the aforesaid accused has not been mentioned., The matter was investigated by the police and the petitioners, namely, Ramesh Tuteja and Raju Singh, were nominated as accused on the disclosure statement. Report under Section 173 of the Code of Criminal Procedure was presented before the trial Court on 28.04.2023 without the report of the Forensic Science Laboratory. To expedite submission of the Forensic Science Laboratory report, letters were addressed to the concerned quarters vide orders passed by the trial Court; RFSL, Bhondsi, replied vide letter dated 12.09.2023 and informed that the concerned case is not ready and the police station will be informed after reporting of the case. After the expiry of the period of 180 days, which is mandated for filing a challan in case of recovery of non‑commercial quantity as per provisions of Section 36A of the Narcotic Drugs and Psychotropic Substances Act read with Section 167(2) of the Code of Criminal Procedure, the applications seeking statutory default bail were instituted and stand dismissed vide the impugned orders., The preliminary question to be considered in this petition is whether a right has accrued to the petitioners to seek statutory bail as the challan was not accompanied by the Forensic Science Laboratory report. The conceded position is that the prosecution never sought an extension of time for submission of the report., Per contra, learned State counsel has vehemently opposed the prayer made by learned counsel for the petitioners on the ground that a report submitted under Section 173 of the Code of Criminal Procedure without the Forensic Science Laboratory report can never be termed as an incomplete challan or charge‑sheet., The High Court has considered the rival contentions of learned counsel for the parties and perused the material on record., For proper appreciation of the fact, a tabulated chart of the relevant dates is given hereunder: Petitioner/Case No. – Arrested on – Challan presented on – Bail under Section 167(2) instituted on / Day – Bail dismissed on. Taswwar Khan – 18‑January – 13.09.2023. Ramesh Tuteja – 19‑April – 03.10.2023. Raju Singh – 18‑July – 26.09.2023., Before proceeding further in the matter, it would be apposite to make reference to the following statutory provisions. Section 36A of the Narcotic Drugs and Psychotropic Substances Act reads as follows: “(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or, where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government; (b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub‑section (2) or sub‑section (2A) of Section 167 of the Code of Criminal Procedure, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days where such Magistrate is a Judicial Magistrate and seven days where such Magistrate is an Executive Magistrate, provided that in cases which are triable by the Special Court, if the Magistrate considers that detention is unnecessary, he shall order the person to be forwarded to the Special Court having jurisdiction; (c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, in relation to an accused person in such case who has been forwarded to him under that section; (d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial. (2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, be charged at the same trial. (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, and the High Court may exercise such powers including the power under clause (b) of sub‑section (1) of that section as if the reference to “Magistrate” in that section included also a reference to a “Special Court” constituted under Section 36. (4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27A or for offences involving commercial quantity, the references in sub‑section (2) of Section 167 of the Code of Criminal Procedure to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”: provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.”, Section 167(2) of the Code of Criminal Procedure reads as follows: “(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty‑four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well‑founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of Sub‑Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: provided that, (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding (i) ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days where the investigation relates to any other offence, and, on the expiry of the said period of ninety days or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub‑section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend any custody under further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.”, The Supreme Court of India in the matter of M. Ravindran vs. The Intelligence Officer, Directorate of Revenue Intelligence, 2021(2) SCC 485, has held as follows: 19.1. However, the expression ‘the accused does furnish bail’ in Section 167(2) and Explanation I thereto cannot be interpreted to mean that if the accused, in spite of being ready and willing, could not furnish bail on account of the pendency of the bail application before the Magistrate, or because the challenge to the rejection of his bail application was pending before a higher forum, his continued detention in custody is authorized. If such an interpretation is accepted, the application of the Proviso to Section 167(2) would be narrowly confined only to those cases where the Magistrate is able to instantaneously decide the bail application as soon as it is preferred before the Court, which may sometimes not be logistically possible given the pendency of the docket across courts or for other reasons. Moreover, the application for bail has to be decided only after notice to the public prosecutor. Such a strict interpretation of the Proviso would defeat the rights of the accused. Hence his right to be released on bail cannot be defeated merely because the prosecution files the chargesheet prior to furnishing of bail and fulfil the conditions of bail of furnishing bonds, etc., so long as he furnishes the bail within the time stipulated by the Court., 25.1. Once the accused files an application for bail under the Proviso to Section 167(2) of the Code of Criminal Procedure read with Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after obtaining necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency., 25.2. The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court., The High Court, in CRM‑M‑25600‑2021 decided on 15.07.2021 titled as State of Haryana Vs. Dildar Ram @ Dari, has held that a challan not accompanied by a Forensic Science Laboratory report cannot be regarded as a complete one and the accused would be entitled to default bail in terms of Section 12. A reference was made to the Division Bench vide order dated 16.09.2020 passed by a coordinate Bench in CRR‑1125‑2020, titled Julfkar vs. State of Haryana, which is still pending before the Full Bench of the High Court., In this context, reference is further made to the order dated 09.11.2022 passed by the Supreme Court of India in Special Leave to Appeal (Criminal) Nos.8164‑8166/2021, titled Mohd. Arbaz and others vs. State of NCT of Delhi, by learned counsel for the petitioners to contend that a matter as regards the challan presented in Narcotic Drugs and Psychotropic Substances cases without a Forensic Science Laboratory report being considered as incomplete is also pending consideration before the Supreme Court of India. Learned counsel for the petitioners has also cited another order passed by the Supreme Court of India dated 28.07.2023 in Special Leave to Appeal (Criminal) No.8610/2023, titled Arif Khan vs. State (Govt. of NCT of Delhi). The said order dated 28.07.2023 reads as follows: 1. Heard learned counsel on both sides. Evidently, the larger question, rather, the primary question to be considered in this matter is whether the petitioner had accrued the right to seek statutory bail as the chargesheet was unaccompanied by a Forensic Science Laboratory report, and in other words, about completeness or otherwise of the charge owing to its unaccompaniment. That question is now pending consideration in a batch of petitions. Evidently, it would take some time for hearing this petition. 2. Taking note of the similar situation, the High Court on 01.05.2023 in the case of Divyas Bardewa v. Narcotics Control Bureau, granted interim bail to the petitioner therein pending consideration of the Special Leave Petition (Criminal) Nos.8164‑8166/2021 and other similar petitions posing consideration of the question referred above. 3. In that view of the matter, we are of the considered view that the petitioner is also entitled to the similar benefit. Consequently, we direct that the petitioner be released on bail subject to the petitioner participating in the trial and also subject to the terms and conditions to be imposed by the Trial Court. In that regard, the petitioner shall be produced before the Trial Court. 4. List this matter along with the other connected matters, forthwith., In view of all that has been observed above and in the light of the fact that the petitioners have been behind bars for more than nine months, the High Court deems it appropriate to extend them the concession of bail in terms of Section 167(2) of the Code of Criminal Procedure. Consequently, these petitions are accepted. The petitioners are ordered to be released on bail subject to their furnishing bail bonds or surety bonds to the satisfaction of the learned trial Court/Chief Judicial Magistrate/Duty Magistrate concerned. The release of the petitioners on bail is subject to their diligent participation in the trial., It is clarified that the prosecution would be at liberty to move for cancellation of bail or recall of this order in case either the reference before the Full Bench in Julfkar’s case is answered in its favour or the matter pending before the Supreme Court of India in Mohd. Arbaz’s case is adjudicated in favour of the prosecution., Pending miscellaneous application, if any, stands disposed of. October 31, 2023 Judge Harish.
id_92	0	Mr. Shiv Bhatt, the learned counsel for the petitioner in Writ Petition (Public Interest Litigation) No. 58 of 2020; Mr. Dushyant Mainali, the learned counsel for the petitioner in Writ Petition (Public Interest Litigation) No. 50 of 2020; Mr. Abhijay Negi, the learned counsel for the petitioner in Writ Petition (Public Interest Litigation) No. 97 of 2019; Mr. S. N. Babulkar, the learned Advocate General assisted by Mr. C. S. Rawat, the learned Chief Standing Counsel for the State of Uttarakhand; and Mr. Rakesh Thapliyal, the learned Assistant Solicitor General for the Union of India., In compliance with the order dated 10 May 2021, Mr. Om Prakash, the learned Chief Secretary; Mr. Amit Negi, the learned Secretary, Medical Health and Family Welfare; Mr. Dilip Jawalkar, the learned Secretary, Uttarakhand Tourism; and Mr. Ved Prakash Mishra, Director, Department of Pharmaceuticals, were present before the Supreme Court of India today through video conferencing., Mr. Amit Negi, the learned Secretary, Medical Health and Family Welfare, and Mr. Amit Sinha, the Inspector General/Nodal Officer, Police Headquarters, have filed their respective affidavits, which are taken on record., Mr. Rakesh Thapliyal, the learned Assistant Solicitor General appearing for the Union of India, has submitted a series of documents along with miscellaneous application No. 9013 of 2021, which are also taken on record., Mr. Shiv Bhatt, the learned counsel for the petitioner in Writ Petition (Public Interest Litigation) No. 58 of 2020, has submitted a series of documents, which are taken on record., The affidavit submitted by Mr. Amit Negi, the learned Secretary, Medical Health and Family Welfare, is a detailed report on compliance with the directions issued by the Supreme Court of India in its order dated 10 May 2021. He states that, in compliance with the said order, the State issued an Expression of Interest inviting proposals from ICMR‑ and NABL‑accredited COVID‑19 testing laboratories for providing mobile testing vans. Despite repeated attempts to motivate such laboratories, no progress has been made. Consequently, by a letter dated 13 May 2021, the State wrote to the Director General, ICMR, requesting details of interested mobile‑van‑based COVID‑19 testing laboratories., The State Government also received a letter dated 14 May 2021 from the Secretary, Government of India, Ministry of Science and Technology, suggesting that the State deploy the first Mobile COVID‑19 Diagnostic Lab built by the DBT AMTZ, Vishakhapatnam. The State is presently examining this proposal., The State Government has increased the number of tests being conducted in various districts on a daily basis. To support this claim, Mr. Amit Negi draws the Court’s attention to a table in the affidavit showing that 278 mobile testing teams have been utilized for conducting Rapid Antigen Tests and for collecting samples for RT‑PCR tests, with the number of teams mobilized in each district also listed., According to Mr. Amit Negi, the State Government has added one more Dedicated COVID Hospital, bringing the total to twelve. There are ninety‑seven Dedicated COVID Health Centres and three hundred ninety‑one Dedicated COVID Care Centres. After 20 April 2021, the State added seventy hospitals as Dedicated COVID Health Centres. For the establishment of a Dedicated COVID Health Centre at Ramnagar, the Government has already sanctioned a sum of Rs. 2.50 crore to the Chief Medical Superintendent, RD Government Hospital, Ramnagar, and the centre will be established in the near future., Mr. Amit Negi highlighted the difficulty of procuring oxygen tanks for the State. He states that the learned Chief Secretary addressed a letter on 7 May 2021 to the Secretary, Ministry of Health and Family Welfare, Government of India, suggesting that Uttarakhand be permitted to procure its quota of 183 metric tonnes of oxygen from locally produced units within the State. The State has been granted a quota of merely 183 metric tonnes of oxygen by the Central Government; of this, only 123 metric tonnes can be sourced from local production units, while the remaining 60 metric tonnes must be imported from Jamshedpur in Chhattisgarh and Durgapur in West Bengal. The Union of India has not responded to this letter., By a letter dated 13 May 2021, the Chief Secretary wrote to the Cabinet Secretary, Government of India, requesting that the State’s oxygen quota be increased from 183 metric tonnes to 300 metric tonnes. No response has been received from the Central Government., By a letter dated 10 May 2021, the Chief Secretary, Government of Uttarakhand, requested the Secretary, Medical Health and Family Welfare, Government of India, to supply ten thousand oxygen concentrators, ten thousand oxygen cylinders, thirty Pressure Swing Adsorption oxygen plants, Continuous Positive Airway Pressure 200 machines, two hundred Bilevel Positive Airway Pressure machines, and one lakh pulse oximeters. This letter has also gone unheeded by the Union of India. Consequently, Mr. Amit Negi submits that without the cooperation of the Central Government, it may be difficult for the State Government to ensure a constant supply of oxygen to the people of the State, especially in remote areas., Regarding the shortage of medical staff, Mr. Negi states that the State Government is constantly endeavouring to fill vacant posts of nursing staff (both male and female), technicians, and doctors. By a letter dated 22 April 2021, three hundred forty‑five doctors have been appointed in various hospitals across the State. However, selection is a time‑consuming process, and the department is trying its best to fill as many posts as possible in the shortest time., There are seventy‑five CT‑scan machines operating in the State; fifteen are in Government hospitals and sixty are in private hospitals. A CT‑scan machine has been installed in the Coronation Hospital, Dehradun, and two CT‑scan machines—one in Pithoragarh and another in Rudrapur—are about to be installed., To ensure the safety of medical staff, about fifty thousand PPE kits, two hundred thousand N‑95 masks, and five hundred thousand triple‑layer masks have been procured by the State Government., Both Mr. Amit Negi and Mr. Dilip Jawalkar, the learned Secretary, Uttarakhand Tourism, assure the Supreme Court of India that the Standard Operating Procedure issued by the Char Dham Devasthanam Prabandhan Board is being followed scrupulously., The State Government has issued guidelines for handling, treatment, and disposal of medical waste generated during the COVID‑19 pandemic and has published a booklet containing these guidelines. Numerous advertisements are being placed in the print media to educate the public on how to care for patients in home quarantine and how to dispose of biomedical waste generated at home., Regarding vaccination centres at two Dedicated COVID Health Centres in Haldwani, Mr. Amit Negi states that the Chief Medical Officer, Nainital, has informed him that vaccination is being carried out about half a kilometre away from Dr. Sushila Tiwari State Medical College, within the Administrative Block of the college. Steps have been taken to ensure that COVID‑19‑positive patients do not intermingle with people coming for vaccination. The Secretary, Department of Medical Health and Family Welfare, has addressed a letter to the Director General, Medical Health and Family Welfare, to ensure that wherever vaccination centres are established, they are located so as to isolate the general public from COVID‑19‑positive patients., Mr. Rakesh Thapliyal, the learned Assistant Solicitor General appearing for the Union of India, submits that it is difficult for the Union of India to concede to the State’s request to procure its oxygen quota from local production centres, as the Central Government must balance the interests of all State Governments., Mr. Shiv Bhatt, the learned counsel for the petitioner in Writ Petition (Public Interest Litigation) No. 58 of 2020, submits that there is a dearth of oxygen tanks and that establishing Pressure Swing Adsorption oxygen plants in major hospitals throughout the State would resolve the difficulty faced by the State regarding oxygen supply., Heard: Mr. Amit Negi, the learned Secretary, Medical Health and Family Welfare; Mr. Dilip Jawalkar, the learned Secretary, Uttarakhand Tourism; Mr. Ved Prakash Mishra, Director, Department of Pharmaceuticals; Mr. Rakesh Thapliyal, the learned Assistant Solicitor General appearing for the Union of India; and Mr. Shiv Bhatt, the learned counsel for the petitioner in Writ Petition (Public Interest Litigation) No. 58 of 2020., Tackling the COVID‑19 pandemic is indeed a herculean task. Despite the difficulties, the State Government appears dedicated to the cause. Many substantive and concrete steps are being taken by the State to fortify the health‑care system, which is presently in a poor state. However, it is unrealistic to expect the health‑care system to be transformed overnight; procuring machines and equipment, appointing medical staff, and training qualified technicians all take time. Accordingly, Mr. Amit Negi is justified in claiming that, although the Government wants to improve the health‑care system, it will still require time to do so., Nevertheless, despite the State’s best efforts, certain areas still require immediate attention from both the Central Government and the State Government., A perusal of the table submitted in the affidavit (page 9 of the compliance affidavit) shows that the number of tests being conducted daily is systematically decreasing. For example, in Dehradun district, on 7 May 2021, 11,578 tests were carried out, whereas on 15 May 2021 the number fell to 7,765. In Haridwar, the figures dropped from 5,823 on 7 May 2021 to 3,100 on 15 May 2021. In Nainital, tests fell from 3,406 on 7 May 2021 to 1,947 on 15 May 2021. No explanation has been offered by the State for this decrease, especially in the most crowded cities., It is surprising that, despite the State’s reasonable requests to the Central Government—to permit the State to lift its oxygen quota from local production units, to increase the quota from 183 metric tonnes to 300 metric tonnes, and to supply large numbers of oxygen concentrators, cylinders, Pressure Swing Adsorption plants, Continuous Positive Airway Pressure machines, Bilevel Positive Airway Pressure machines, and pulse oximeters—the Central Government has remained silent., In a quasi‑federal country like ours, it is the constitutional duty of the Central Government to rush to the rescue of the State Government. The least that is expected is a response to the repeated letters sent by the State Government, yet the Central Government has not yet paid any heed to these requests., Regarding the Standard Operating Procedure covering the Char Dham, the Supreme Court of India is not impressed by the assurance given by Mr. Dilip Jawalkar, the learned Secretary, Uttarakhand Tourism. Although he claims that the SOP is being followed in letter and spirit, numerous videos on social media clearly show that social distancing is not being maintained at either Kedarnath or Badrinath temples; many priests enter the sanctum sanctorum without masks. Concrete steps must therefore be taken by the State Government to ensure that Char Dham does not become a new breeding ground for COVID‑19. More strict vigilance and surveillance are immediately called for., Although a booklet containing directions and instructions for managing medical waste generated by COVID‑19 patients has been prepared, the public still needs detailed information on how to handle such waste., While the affidavit filed by Mr. Amit Negi claims that the recommendations of the High Level Committee are being implemented, there is no evidence to support this claim. Moreover, although it is stated that part of the tuberculosis sanatorium at Bhowali will soon be converted into a 100‑oxygen‑bedded COVID care centre, no timeline has been provided in the affidavit., With respect to the supply of Remdesivir, the Supreme Court of India is informed that the Central Government has recently increased the State’s quota from 74,000 to 124,000 vials. Earlier, it was pointed out that some companies were defaulting on the supply schedule. It is hoped that the Central Government will take action against such defaulting companies and ensure that the full quota of 124,000 vials is supplied to the State., Therefore, keeping in mind the facts mentioned above, the Supreme Court of India issues the following directions: (i) The number of tests being carried out throughout the State must be substantially increased, and the State should not decrease daily testing; (ii) The Central Government is directed to seriously consider the State’s request to increase its oxygen quota from 183 metric tonnes to 300 metric tonnes, and to provide ten thousand oxygen concentrators, ten thousand oxygen cylinders, thirty Pressure Swing Adsorption oxygen plants, Continuous Positive Airway Pressure 200 machines, two hundred Bilevel Positive Airway Pressure machines, and one lakh pulse oximeters; (iii) The Central Government must consider the other requests made by the State in its letter dated 10 May 2021, including permitting the State to procure oxygen from its own local production units; a decision on these issues must be taken within one week of receipt of a certified copy of this order; (iv) The State Government is directed to deploy sufficient personnel at the Char Dham to ensure that the SOP issued by the Char Dham Devasthanam Prabandhan Board is complied with both in letter and spirit, and that priests and temple staff constantly wear masks and maintain social distancing; strict action must be taken against violators under Regulation 19(A)(1) and Regulation 19(A)(2) of the Uttarakhand Epidemic Diseases COVID‑19 Regulations, 2020, and the Supreme Court of India shall be informed about the number of cases charge‑sheeted against offenders; (v) The State Government must produce sufficient evidence to establish that the recommendations of the High Level Committee are being implemented throughout the State; (vi) The State Government is further directed to expedite the setting up of a 100‑oxygen‑bedded COVID Care Centre at the tuberculosis sanatorium in Bhowali; (vii) Both the Central Government and the State Government must ensure that the quota of 124,000 vials of Remdesivir is supplied to the State in a regular and systematic manner; (viii) Mr. Rakesh Thapliyal, the learned Assistant Solicitor General appearing for the Union of India, is directed to ensure that a competent representative of the Central Government appears before the Supreme Court of India to explain why the Central Government is not willing to concede to the State’s requests regarding oxygen quota, oxygen tanks, and oxygen concentrators., Mr. Amit Negi, the learned Secretary, Medical Health and Family Welfare, and Mr. Rakesh Thapliyal, the learned Assistant Solicitor General appearing for the Union of India, are directed to submit their reports on the implementation of the directions given herein by the next date., Mr. Om Prakash, the learned Chief Secretary, and Mr. Amit Negi, the learned Secretary, Medical Health and Family Welfare, are directed to appear before the Supreme Court of India on 9 June 2021., The case is listed for hearing on 9 June 2021.
id_920	0	Petitioner: Hari Pasad Gupta. Respondent: State of Uttar Pradesh through Additional Chief Standing Counsel, Medical Health and Others. Counsel for petitioner: Dr. V. K. Singh, Hari Ram Gupta. Counsel for respondent: C. S. C., Gaurav Mehrotra. Honourable Justice Ritu Raj Awasthi, J. and Honourable Justice Manish Mathur, J., The case was taken up through video conferencing. Learned counsel for the petitioner and Mr. H. P. Srivastava, Additional Chief Standing Counsel appearing for the State authorities, and Mr. Gaurav Mehrotra appearing for the opposite parties were heard. The instant Public Interest Litigation has been filed primarily agitating mismanagement in the availability of oxygen required for seriously ill Covid‑positive patients, lack of required beds in the designated Covid hospitals, non‑availability of life‑saving drugs, black marketing of oxygen and necessary drugs, and lack of sensitivity of the administration and concerned authorities towards Covid‑positive patients who are either home‑quarantined or running from pillar to post for admission in hospitals in the city of Lucknow. The petitioner's counsel also submits that an audit of the oxygen and supply of medicines in the State of Uttar Pradesh is required to be done so that they are properly utilized., The petitioner has prayed for the following reliefs in this Public Interest Litigation: Issue a writ, order or direction in the nature of mandamus commanding the Original Petition No. 1 to 6 to ensure the urgent demand of life‑saving oxygen supply not only to hospitals but also to patients who are in isolation or home quarantine. Issue a writ, order or direction in the nature of mandamus commanding the Original Petition No. 1 to 6 to provide facility of hospitalization to serious patients who are running here and there and are becoming prey to mismanagement and utter failure of the administrative set‑up, thereby losing precious life. Issue a writ, order or direction in the nature of mandamus commanding the Original Petition No. 3 and 6 to ensure proper, adequate supply of medicine, to check black marketing, hoarding and over‑pricing of medicines, oxygen and other surgical and non‑surgical items. Issue a writ, order or direction in the nature of mandamus commanding the Original Petition No. 1 for installation of Pressure Swing Adsorption (PSA) plants in the State of Uttar Pradesh from the fund allocation made under the PM Cares Fund Trust on 05.01.2021 and to ensure supply of oxygen as per its capacity at the earliest. Issue a writ, order or direction in the nature of mandamus commanding the authority concerned to take appropriate action against officials responsible for non‑installation of the PSA plants in the State of Uttar Pradesh from the fund allocation made under the PM Cares Fund Trust on 05.01.2021 and to lodge criminal cases holding them responsible for loss of life due to lack of oxygen supply. Issue a writ, order or direction in the nature of mandamus commanding the authority concerned to conduct an audit of the hospitalization of Covid‑19 patients both in government and non‑government hospitals, and also to audit the supply of life‑saving oxygen and medicines in the State of Uttar Pradesh. Issue a writ, order or direction in the nature of mandamus commanding the Original Petition No. 7 and 8 to provide space to the State Government for establishing a makeshift Covid‑19 hospital in the premises of the Honourable High Court, where Advocate Chambers, Awadh Bar Library, Auditorium Hall and other suitable places can be taken to cater to the needs of the judicial and non‑judicial staff of the Honourable High Court, the advocates and their wards. Issue a writ, order or direction in the nature of mandamus commanding the Original Petition No. 1 and other concerned authorities to provide necessary infrastructure and facilities such as ventilators, oxygen supply, life‑saving medicines and other ancillary equipment and machinery for making a makeshift Covid hospital in the premises of the Honourable High Court. Issue a writ, order or direction in the nature of mandamus commanding the authority concerned to ensure free‑of‑cost treatment to the lawyers and their wards suffering from Covid‑19 or to reimburse the amount incurred on treatment., Mr. H. P. Srivastava, Additional Chief Standing Counsel, submits that the Allahabad High Court is already seized with a suo motu Public Interest Litigation No. 574 of 2020 which involves the issues raised in the instant Public Interest Litigation, and as such the petitioner may be directed to move an application for intervention in the pending writ petition at Allahabad., Having considered the submissions made by learned counsel for the parties and gone through the record, we direct the counsel for the opposite parties to seek instructions in the matter. The case is listed on 18.5.2021 in the additional cause list.

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