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ALIGARH MUSLIM UNIVERSITY THROUGH ITS REGISTRAR FAIZAN MUSTAFA V. NARESH AGARWAL2024 INSC 856 (8 November 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Sanjiv Khanna, Justice Surya Kant, Justice Jamshed B. Pardiwala, Justice Dipankar Datta, Justice Manoj Misra, Justice Satish C. Sharma

(i) When does an educational institution qualify as a minority institution entitled to the protections under Article 30 of the Constitution? (ii) Whether the Supreme Court’s judgment in S. Azeez Basha v. Union of India (“Azeez Basha”) (1967 INSC 238), which held that Aligarh Muslim University (AMU) is not a minority institution is correct.

Sir Syed Ahmed Khan established the Mohammadan Anglo Oriental College (MAO) on 8 January 1877 in Aligarh. In 1920, the British Imperial Legislative Council enacted the Aligarh Muslim University Act (“AMU Act”), incorporating AMU as a university. In 1950, as part of the Constitution Article 30(1) came into force which grants minorities the right to establish and administer educational institutions. In 1967, a Constitution Bench of the Supreme Court (five Judges) in Azeez Basha ruled that AMU was not a minority institution because it was established by statute and thus was not "established" and "administered" by a minority community as required by Article 30(1).

On 26 November 1981, a Two-Judge Bench of the Supreme Court in Anjuman-e-Rahmaniya v. District Inspector of Schools (“Rahmaniya”) (W.P.(C) No. 54-57 of 1981 ) referred the correctness of Azeez Basha to a Seven-Judge Bench. Parliament then enacted the Aligarh Muslim University (Amendment) Act, 1981 (“1981 Amendment”). This Amendment amended the AMU Act significantly and defined the “University” as an institution “established by the Muslims of India,” originating as MAO College and later incorporated as AMU, aiming to further the educational and cultural advancement of Indian Muslims.

In 2005, the Allahabad High Court declared AMU’s fifty-percent reservation policy for Muslim students in its postgraduate medical program unconstitutional. In doing so, the High Court held that AMU was not a minority institution under Article 30(1) even after the 1981 Amendment. On 12 February 2019, a Three-Judge Bench of the Supreme Court, led by the Chief Justice Ranjan Gogoi, heard AMU’s appeal and observed that the High Court’s decision relied on Azeez Basha, the correctness of which had been questioned in Rahmaniya and not yet conclusively decided. Consequently, the Court referred the matter to a Seven-Judge Bench.

The Supreme Court by a 4-3 majority overruled Azeez Basha. The majority held that merely because an institute is created by a statute does not strip it of minority status. The majority also held that Article 30(1) protects institutes established before the Constitution came into force in 1950. The Court laid down criteria to determine when an institution is a minority institution benefitting from Article 30(1) protection. The majority judgment was authored by Chief Justice Chandrachud. Justices Kant, Datta and Sharma authored separate (partly dissenting) opinions.

The reference in Rahmaniya is not bad in law

The majority upheld the decision of the Two-Judge Bench in Rahmaniya which questioned the correctness of Azeez Basha and requested that the matter be placed before the Chief Justice for consideration by a Seven-Judge Bench. The majority further clarified that the Chief Justice retains discretionary administrative authority to assign cases to any Bench of any strength irrespective of whether they are part of the bench referring the issue to a larger bench (¶¶36–39 CJ. Chandrachud).

Justices Kant, Datta, and Sharma in their dissenting opinions held that the manner of referral to a larger bench in Rahmaniya was legally flawed and breached established norms of judicial propriety (¶91 J. Kant, ¶¶24-25 J. Datta, ¶266 J. Sharma). Justice Kant noted that the Division Bench (two judges) in Rahmaniya, being of lesser strength than the Constitution Bench (five judges) in Azeez Basha, lacked the authority to explicitly question the correctness of Azeez Basha or suggest the strength of the bench which should resolve the alleged conflict (¶¶93-94 J. Kant). He held that a direction specifying the strength of the bench to which a case should be referred to impaired the Chief Justice of India’s authority as the master of the roster (¶94 J. Kant).

Justice Datta observed that the issue should have first been placed before a Three-Judge Bench (¶28 J. Datta). He further held that Rahmaniya was concerned with the registration of a minority institution under the Societies Registration Act, while Azeez Basha addressed the incorporation of a university by statute. Thus, referring Azeez Basha to a seven-judge bench was unwarranted, even on merits (¶42 J. Datta).

Minority status is not lost merely because an institute is created by a statute

The majority held that the right to establish and administer educational institutions under Article 30(1) extends to institutions established both before and after the Constitution’s adoption (¶¶81–83 CJ. Chandrachud, ¶¶67 J. Datta, ¶¶107-108 J. Kant).

The majority held that an educational institution does not lose its minority status merely because it is created by a statute (¶98 CJ. Chandrachud, ¶¶151-155,190 J.Kant). The majority clarified the distinction between "incorporation" and "establishment," noting that incorporation gives legal existence to an institution, while establishment refers to its founding. The majority emphasised that the status of a minority institution depends on the individuals or group behind its creation, not the legal process through which it was incorporated (¶¶93-94 CJ. Chandrachud). The majority stressed that the examination of its founding should be based on the situation at the time of the Constitution’s adoption, not before independence (¶¶112, 122 CJ. Chandrachud).Justice Kant in his separate opinion also held that if an institution possesses legal existence independent of the statute, then the statute merely recognises an existing institution and does not establish it and therefore it cannot take away the role of the minority community in bringing the institution into existence (¶155 J. Kant). However, the legislative intent behind the establishment of an institution plays a significant role in determining the character of that institution (¶190 J. Kant, ¶ 266 J. Sharma).

Azeez Basha does not lay down the correct law

The majority held that Azeez Basha incorrectly relied on The Durgah Committee, Ajmer v. Syed Hussain Ali (“Dargah Committee”) (1961 INSC 101) to support the view that a minority’s right to administer an institution could be forfeited under certain circumstances. It found that Durgah Committee was concerned with the the right of religious denominations to own and administer property under Article 26. The majority ruled that no parallel could be drawn between the rights under Article 26 and Article 30(1), as the scope and nature of the rights under these provisions are different (¶¶73, 78, 79 CJ. Chandrachud).

Justice Kant in his separate dissenting opinion held that Azeez Basha needed to be clarified because it holds that before 1956, university degrees did not need to be recognised by the government, while also holding that it was only the AMU Act which allowed AMU to confer degrees. This led it to conclude that AMU was brought into existence by an act of legislation (¶190 J.Kant).

Justice Sharma in his separate dissenting opinion held that Azeez Basha does not categorically prohibit minorities from establishing universities through statutes because the case dealt with a unique situation where a university established by the British Legislative Council had claimed minority status (¶¶188-190 J. Sharma).

Criteria for the ‘establishment’ of a minority educational institution

The majority held that an institution’s minority status does not require it to exclusively serve the minority community. It must predominantly benefit the minority, and courts must examine the origin of the institution, such as who sought its establishment, the purpose for which it was founded, and the steps taken to implement its creation. This includes factors like funding, land acquisition, and construction, all of which should primarily involve the minority community (¶¶134-136 CJ. Chandrachud).

The majority held that it is not necessary to prove that the administration of the university vests with the minority community to prove that it is a minority educational institution. This is because the very purpose of Article 30(1) is to grant special additional rights regarding administration as a consequence of establishment. The majority ruled that while it is not necessary for minority members to manage the institution, the administration should still affirm the institution's minority purpose (¶¶138-139 CJ. Chandrachud). It also ruled that the status of an institution as one of national importance does not negate its minority character, as the terms "national" and "minority" are not mutually exclusive (¶148 CJ. Chandrachud).

Justices Kant, Datta, and Sharma agreed with the criteria set out by the majority but made certain additional observations. According to Justices Kant and Sharma, legal and factual control over the university’s administration must vest with the minority community to benefit from the protections under Article 30 (¶¶184-186 J. Kant, ¶¶167-169 J. Sharma). Justice Sharma also observed that the minority community must prove that the institution was brought about due to the efforts of the minority community (¶169 J. Sharma). Justice Datta cautioned that a rigid, one-size-fits-all framework would be unsuitable for accurately assessing minority institution status (¶¶54, 57 J. Datta).

AMU’s minority status is to be decided by another bench

The majority held that the core issue in Rahmaniya was regarding the essential ingredients of a minority education institution. The 2019 reference order was also limited to the criteria to qualify as a minority educational institution (¶¶33-35 CJ. Chandrachud). Thus, having laid out these criteria the majority, along with Justices Kant and Sharma, held that the issue of whether AMU was a minority institution should be decided by a regular bench (¶¶35,161 CJ. Chandrachud, ¶188 J.Kant, ¶¶ 126, 218 J.Sharma).However, Justice Datta in his dissenting opinion, held that sending AMU's minority status to a regular bench was unnecessary, as the issue had been extensively argued, and resolving it would save judicial time (¶50 J.Datta). Despite finding the reference legally invalid, he chose to answer the reference and affirmed the conclusion in Azeez Basha that AMU was established by the imperial legislature through the AMU Act, not by the Muslim community (¶¶87-88 J. Datta).

Justice Datta observed that the societies linked to AMU’s claimed minority heritage dissolved with the enactment of the AMU Act (¶77 J. Datta). He further ruled that the governance structure, funding, admissions, and appointments in the University demonstrates an involvement of the State which amounted to absolute control over the administration of the University (¶101 J. Datta). He emphasised that the AMU Act’s preamble lacked any recognition of minority contributions (¶72 J. Datta).

Prepared by Osama Noor and Raza Zaidi

Centre for Research and Planning | Supreme Court of India

CENTRAL ORGANISATION FOR RAILWAY ELECTRIFICATION V. M/S ECI SPIC SMO MCML (JV) A JOINT VENTURE COMPANY2024 INSC 857 (8 November 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Hrishikesh Roy, Justice Pamidighantam S. Narasimha, Justice Jamshed B. Pardiwala, Justice Manoj Misra

(i) Whether a person ineligible to be an arbitrator under the seventh schedule of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) can mandate the other party choose an arbitrator from the panel of arbitrators curated by them. (ii) Whether the principle of equal treatment of parties applies when appointing arbitrators. (iii) Whether the unilateral appointment of arbitrators by the government entity in a public-private contract violates Article 14 of the Constitution.

Section 12(5) of the Arbitration Act disqualifies persons specified in the seventh schedule of the Act from being appointed arbitrators because their relationship with the parties could interfere with the tribunal’s impartiality. A Three-Judge Bench of the Supreme Court in TRF Ltd v. Energo Engineering Projects Ltd 2017 INSC 577 (“TRF”) and a Division Bench (two judges) of the Court in Perkins Eastman Architects DPC v. HSCC (India) Ltd (2019 INSC 1285) (“Perkins”) held that a person who is themselves ineligible to be an arbitrator, owing to their interest in the outcome of the dispute, cannot be given the authority to appoint an arbitrator in the dispute.

However, in Central Organisation for Railway Electrification v. M/s ECI SPIC SMO MCML (JV) A Joint Venture Company (2019 INSC 1394) (“CORE”) the Supreme Court upheld an arbitral clause allowing the railways to maintain a panel of arbitrators from which private parties had to choose from. Further, the General Manager of the Railways, who is disqualified from being an arbitrator under the seventh schedule, would then appoint at least one arbitrator.

In 2021, another three-judge bench of the Supreme Court in Union of India v. Tantia Constructions (2021 SCC OnLine SC 271) disagreed with the reasoning in the CORE decision on the ground that if the appointing authority itself is disqualified, the resulting appointments made by them could not be held to be valid. The issue was therefore referred to a Constitution Bench (five judges).

The Constitution bench (five judges) of the Supreme Court by a 3:2 majority held that clauses in arbitration agreements allowing one party to appoint sole arbitrators unilaterally are impermissible. While public sector undertakings (“PSU”)are not prohibited from empanelling potential arbitrators, requiring the other party to select from the curated panel violated the principle of equality of parties. The Court held that the equal treatment of parties applies at all stages of arbitration, including the appointment of arbitrators. The majority opinion was authored by Chief Justice Chandrachud on behalf of himself and Justices Misra and Pardiwala. Justice Roy and Justice Narasimha wrote separate partially dissenting opinions.

Justice Roy held that unilateral appointments are not inherently invalid, as long as they do not fall within those prohibited by the Seventh Schedule. Justice Narasimha held that courts should determine whether a specific unilateral appointment of an arbitrator warrants prohibition.

The principles of equality of parties and independence and impartiality

The majority held that the principle of party autonomy in arbitration was regulated by the mandatory provisions of the Arbitration Act (¶32 CJ. Chandrachud). Section 12 and Section 18 are the provisions ensuring the independence and impartiality of the arbitrators and the equality of parties and therefore should be applied in all circumstances to any arbitration agreement (¶55 CJ. Chandrachud, ¶2 J. Roy). These provisions ensure procedural equality within arbitral proceedings, which is required of all quasi-judicial bodies under Article 14 of the Constitution (¶¶72-73 CJ. Chandrachud). Therefore, the principle of equality of parties as enshrined under Section 18 applies to the arbitration proceedings at all stages including the appointment of arbitrators (¶75 Chandrachud).

The majority held that the unilateral appointment of a sole arbitrator would hinder the equal participation of both parties by depriving the parties of equality of opportunity to represent themselves in the proceedings (¶129 CJ. Chandrachud). The majority also held that in case of appointment of a three-member panel, mandating the other party to select an arbitrator exclusively from its curated panel was against the principle of equal treatment of parties as it restricted the freedom of the other party to appoint an arbitrator of their choice and there remained no effective counter-balance because both parties did not participate equally in the process of appointing arbitrators (¶¶131-133 CJ. Chandrachud).

Justice Roy held that Sections 11 and 12 of the Arbitration Act restricted courts from intervening at the stage of appointment of arbitrators (¶22 J. Roy). He further held that a blanket prohibition of unilateral appointments of arbitrators was unnecessary as the arbitration process already provided for multiple safeguards in case of apprehensions of bias under provisions such as Sections 12, 13, 14 and 15 which consisted of remedies such as rendering an arbitrator ineligible and allowing challenges to their appointment (¶¶39-42 J. Roy, ¶54.4 J. Narasimha). Justice Narasimha held that because Section 18 was included in the chapter of the Arbitration Act following the one governing appointments, it cannot be applied at the time of appointment. He observed that the obligation to ensure impartiality and independence was on the arbitral tribunal and not on the parties (¶54.3 J. Narasimha).

Arbitration proceedings are governed by principles of natural justice

The majority held that the unilateral appointment of a sole arbitrator was impermissible as it would result in a real possibility of bias by giving rise to ‘justifiable doubts regarding their independence or impartiality.’ Parties may have an understandable apprehension that such an arbitrator may be unduly influenced by the appointing party (¶128 J. Chandrachud). Similarly, a PSU choosing only empanelling a certain number of persons as potential arbitrators will cause a reasonable person to think that it might have nominated them because they favour the PSU (¶135 J. Chandrachud).

Justice Roy and Justice Narasimha held that the independence and impartiality of the arbitrator cannot be governed by broader principles of administrative law, and must exclusively be examined within the statutory framework of the Arbitration Act and the Contract Act (¶¶3-4 J. Roy, ¶¶54.2 J. Narasimha).

Public-private contracts must be consistent with public policy

In contracts between the state and private parties, the majority ruled that the state was required to act fairly under Article 14 of the Constitution. Section 34 of the Arbitration Act expressly imposed an obligation to abide by public policy principles by providing for the setting aside of the arbitral award if it violated the public policy of India (¶¶157-158 J. Chandrachud). In arbitration agreements involving the state, the unilateral appointment of a sole arbitrator by the state contravened the public policy of the country (¶163 J. Chandrachud).

Prepared by Abhishek Rath (Intern)

Centre for Research and Planning, Supreme Court of India

TEJ PRAKASH PATHAK V. RAJASTHAN HIGH COURT2024 INSC 847 (7 November 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Hrishikesh Roy, Justice Pamidighantam S. Narasimha, Justice Pankaj Mithal, Justice Manoj Misra

Whether the “rules of the game” governing a recruitment process can be changed after the recruitment process has commenced.

By its notification dated 17 September 2009, the Rajasthan High Court invited applications for the posts of Translators. The relevant Rules specified the qualifications as well as the method of recruitment to the posts which included an examination consisting of a written test followed by an interview. After the examination, the Chief Justice of the High Court added a minimum percentage of 75% in the examination for filling up the posts in question. Some unsuccessful candidates filed a writ petition before the High Court contending that the Chief Justice’s decision amounted to “changing the rules of the game after the game is played.”

After the dismissal of the writ petition by the High Court, a Special Leave Petition was filed before a Three-Judge Bench of the Supreme Court. Doubting the correctness of the Court’s previous decision in K. Manjusree v. State of Andhra Pradesh (2008 INSC 195) (“K. Manjusree”), the case was referred to a Constitution Bench (five judges) for an authoritative pronouncement on the question.

The Constitution Bench (five judges) of the Supreme Court unanimously held that the existing Rules governing eligibility criteria cannot be changed once recruitment begins unless the existing Rules permit it. However, recruitment bodies can devise appropriate procedures or methods of selection during the recruitment process as long as they are transparent, non-discriminatory, and rational. The Court upheld the decision in K. Manjusree. The judgment of the Court was authored by Justice Misra.

‘Rules of the Game’ should not be changed during the game

The Supreme Court held that the process of recruitment begins with the issuance of advertisement and ends with the filling up of notified vacancies (¶13). The Court held that the doctrine which stops the change of rules midway through the recruitment process is founded on the rule against arbitrariness in Articles 14 and 16, and the doctrine of legitimate expectations. The Court reasoned that these provisions require the State to act in a fair, transparent and non-arbitrary manner. Candidates have a legitimate expectation that selection will be based on known criteria and public authorities should act predictably unless there is a good reason not to do so (¶¶ 14-16).

Procedure prescribed in the existing rules not to be violated

The Supreme Court ruled that the principle that the rules of the game could not be changed midway did not apply with as much strictness to the procedure for selection as it did to the fixing of the eligibility criteria. The Court held that recruiting bodies could devise appropriate procedures to conclude the recruitment process provided the procedures did not violate existing rules and were non-discriminatory, non-arbitrary and had a rational nexus to the object sought to be achieved (¶36).

The Supreme Court reasoned that where the relevant Rules were silent on the procedure of selection, the recruiting body could fill in the gaps through administrative instructions provided they did not violate the provisions of the Rules, the Statute, or the Constitution. But where the Rules covered the field, the recruiting body had to abide by them (¶39).

K. Manjusree is not at variance with earlier precedents

The Supreme Court observed that in K. Manjusree, the existing rules had not specified the procedure of selection. Thus, the concerned authority came up with an aggregate qualifying percentage for the written exam and interview. The rule was then changed following the completion of the interview process, adding a minimum qualifying percentage for the interview in itself (¶18). In these circumstances, the Supreme Court held that the change was illegal as the considerations of examiners in evaluating the candidates would have been different had they known that there was a minimum percentage for the interview in addition to the written exam (¶19).

The Supreme Court addressed the contention that the decision in K. Manjusree contradicted State of Haryana v. Subash Chander Marwaha (1973 INSC 110) (“Marwaha”)(¶22). In Marwaha, following the preparation of the selection list, the recruiting body fixed a percentage for the appointment from amongst the names in the list (¶24). This was upheld, with the Supreme Court ruling that such an act came under the purview of administrative policy (¶25). In the present case, the Court held that Marwaha dealt with the right to be appointed from the select list whereas K. Manjusree dealt with the right to be placed in the select list. Therefore, it ruled that K. Manjusree could not be at variance with Marwaha, as both the decisions dealt with separate questions (¶26).

Appointment may be denied even after placement in select list

The Supreme Court held that a candidate placed in the select list has no indefeasible right to be appointed to the post in question even if vacancies were available (¶40). It reasoned that the State was under no legal duty to fill all the vacancies if there existed good faith reasons not to do so (¶41).

Prepared by Abhishek Rath (Intern)

Centre for Research and Planning, Supreme Court of India

M/S. BAJAJ ALLIANCE GENERAL INSURANCE CO.LTD. V. RAMBHA DEVI2024 INSC 840 (6 November 2024)

Chief Justice Dr Dhananjaya Y. Chandrachud, Justice Hrishikesh Roy, Justice Pamidighantam S. Narasimha, Justice Pankaj Mittal, Justice Manoj Misra.

Question(s): Whether a person holding a license for a “Light Motor Vehicle” (“LMV”) can drive a “Transport Vehicle” weighing less than 7,500 kgs without a specific endorsement on their license.

The Motor Vehicle Act, 1988 (MV Act) initially categorised vehicles as light, medium, and heavy motor vehicles with light vehicles weighing less than 7,500 kgs. Subsequently, in 1994, a separate class of ‘Transport Vehicles’ (vehicles to transport passengers and goods) replaced medium and heavy motor vehicles. A question arose as to whether a person holding an LMV license could drive a Transport Vehicle weighing less than 7,500 kgs. Insurance companies regularly disputed claims by persons holding an LMV license driving a ‘Transport Vehicle’ weighing less than 7,500 kgs.

In 2017, a Three-Judge Bench of the Supreme Court in Mukund Dewangan v. Oriental Insurance Company Limited (2017 INSC 576) (“Mukund Dewangan”) held that a person holding an LMV driving license could drive a Transport Vehicle weighing less than 7,500 kgs. However, several insurance companies challenged the law laid down in Mukund Dewangan, arguing that inadequately trained drivers would start driving the transport vehicles.

In 2018, a Division Bench (two judges) noted that the judges in Mukund Dewangan had not considered some important provisions of the MV Act, which created additional requirements for driving Transport Vehicles, and referred the matter to a larger bench for reconsideration. Subsequently, a Three-Judge Bench in 2023 also questioned the correctness of Mukund Dewangan. Hence, the matter was placed before a Constitution Bench (five judges).

The Constitution Bench (five judges) unanimously upheld the correctness of the law laid down in Mukund Dewangan and decided that a person holding an LMV license was entitled to drive a transport vehicle weighing less than 7,500 kgs without any additional endorsement on their license. The judgment of the Court was authored by Justice Roy.

Harmonious Interpretation

Section 2(21) of the MV Act defines an LMV as a transport vehicle weighing less than 7,500 kgs while the expression ‘transport vehicle’ under Section 2(47) of the MV Act can be logically inferred to mean motor vehicles exceeding 7,500 kgs in weight (¶35, 42). The Supreme Court noted that if an LMV license holder could not drive a transport vehicle weighing less than 7,500 kgs, an LMV license would be unable to use their vehicle for small-scale commercial activities without obtaining a separate endorsement license for ‘transport vehicle’. Thus, requiring a separate license for transport vehicles weighing less than 7,500 kgs was unreasonable and contrary to the legislative intent (¶44.3). Hence, the adoption of a harmonious approach to remove the ambiguity in the application of the law was necessary (¶66).

The Supreme Court observed that there is an overlap between the meaning of LMV and transport vehicle (¶70). While all transport vehicles are not LMVs, some transport vehicles may fall within the LMV class. If a transport vehicle falls within the meaning of LMV under Section 2(21) (i.e., weighs less than 7,500 kgs), then the additional requirement of a separate endorsement of the transport vehicle is not necessary (¶70). The Supreme Court also observed that the legislative intent behind the 1994 amendment to the MV Act which replaced ‘medium goods vehicle’ and ‘heavy goods vehicle’ category with ‘transport vehicle’ under Section 10(2)(e) to 10(2)(h) was to simplify the licensing procedure and therefore the term ‘Transport Vehicle’ in the licensing scheme has to be understood only in the context of the ‘medium’ and ‘heavy’ vehicles (¶127).

Interpretation must not result in impractical outcomes

The Supreme Court underscored that a statute should be interpreted to avoid any impractical outcomes (¶77). To obtain an endorsement of a transport vehicle, a person has to be tested on a transport vehicle with no distinction between heavy, medium or light category. This would mean that a person seeking an endorsement for a transport vehicle of LMV class such as an auto-rickshaw would have to undergo extensive level of training recommended under Rule 31 of the MV Rules for the transport vehicle. To apply this extensive training for the auto driver would defy logic and certainly lead to an impractical outcome (¶¶79-81). Therefore, it is more logical that the additional testing requirements for ‘transport vehicle’ only apply to LMVs (¶81).

Lack of empirical data suggestive of adverse impact on road safety

The Supreme Court observed that safe driving requires thorough knowledge of traffic rules and a focus on the road free from distractions which is true for all drivers irrespective of the class of vehicle they drive (¶123). The Supreme Court noted that no empirical data suggested that an increase in the number of road accidents in India was a direct result of drivers with LMV licenses driving a transport vehicle weighing less than 7,500 kgs and arguments suggesting an increase in the number of accidents as a direct result of Mukund Dewangan remained unsubstantiated (¶117).

Prepared by Raza Zaidi

Centre for Research and Planning | Supreme Court of India

ANJUM KADARI V. UNION OF INDIA2024 INSC 831 (5 November 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Jamshed B Pardiwala, Justice Manoj Misra

Question(s): Whether the Uttar Pradesh Board of Madarsa Education Act, 2004 (“Madarsa Act") is constitutional?

The Madarsa Act established a ‘Board of Madarsa Education’ to regulate standards of education for students studying in Madarsas in the state. There are over 13,000 Madaras in Uttar Pradesh with over 12,00,000 students. These institutions provide both religious and secular education up to various levels including elementary, secondary, and higher education.

On 22 March 2024, a Division Bench (two-judges) of the Allahabad High Court invalidated the entire Madarsa Act. The High Court held that the Madarsa Act violated the principle of secularism and Articles 14 (equality), 21 (life and liberty) and 21-A (education) of the Constitution and contravened Section 22 (right to confer degrees) of the University Grants Commission Act, 1956 (“UGC Act”).

It also directed the State Government to take steps to accommodate all students studying in Madrasas in schools recognised by the Education Boards of the State of Uttar Pradesh. Several Special Leave Petitions were filed against the judgment of the High Court. On 5 April 2024, the Supreme Court stayed the implementation of the judgment while it heard the case.

A Three-Judge Bench of the Supreme Court set aside the judgment of the High Court and upheld the constitutional validity of the Madarsa Act except the provisions which provided for the regulation of higher education degrees. These provisions were found to conflict with the UGC Act. The judgment of the Court was authored by Chief Justice Chandrachud.

Madarasa Act and secularism

The Supreme Court held that a statute cannot be invalidated for violating the principles that constitute the basic structure of the Constitution (such as secularism). A law can be struck down only for violating a specific provision of the Constitution or for being enacted by a legislature that was not empowered to enact the law in question. The Court ruled that concepts such as democracy, federalism, and secularism are undefined concepts and allowing courts to strike down legislation for violation of such concepts will lead to uncertainty (¶55).

The Supreme Court distinguished between “religious instruction” (teaching religious practices) and “religious education” (teaching the philosophy of religion). The Court found that Article 28 of the Constitution, which prevents imparting religious instruction at institutions maintained out of government funds, does not prohibit institutions from providing religious education nor does it prevent the government from recognising institutions imparting religious instruction alongside secular education (¶43).

The Supreme Court also held that the Madarsa Act furthers substantive equality for minority institutions (¶¶70,72). It held that secularism requires the State to take active steps to help minority institutions achieve high educational standards while allowing them to retain their minority character. The Court ruled that the Madarsa Act is consistent with the positive obligation of the State to ensure that students studying in recognised Madarsas attain a minimum level of competency which will allow them to effectively participate in society and earn a living (¶72).

Madarsa Act is a regulatory statute

The Supreme Court held that The legislative scheme of the Madarsa Act shows that it is not a law to provide religious instruction; rather it has been enacted to regulate the standard of education in Madarsas (¶65). The Court held that the State has an interest in ensuring that minority educational institutions provide standards of education similar to other educational institutions and it can enact regulatory measures to raise educational standards (¶¶74-75).

The Supreme Court held that the High Court was wrong in holding that education provided under the Madarsa Act is violative of Article 21A. The Right of Children to Free and Compulsory Education Act, 2009 (“RTE Act”), which facilitates the fulfilment of the fundamental right under Article 21A, does not apply to minority educational institutions. The Court also observed that the state government has sufficient regulatory powers under the Madarsa Act to regulate standards of education in Madarsas (¶79).

State of Uttar Pradesh has the legislative competence to enact the Madarsa Act

The Supreme Court held that the state legislature of Uttar Pradesh was competent to enact The Madarsa Act under Entry 25, List III (“Education” under the Concurrent List). The Court held that just because the education which is sought to be regulated includes some religious teachings or instruction does not push the legislation outside the legislative competence of the state (¶85).

The Court held that Entry 25 of List III can not be interpreted to mean that only education that is devoid of any religious teaching or instruction is allowed to be regulated else it would fall outside the legislative competence of the state (¶90). The Court ruled that this interpretation would be against the constitutional scheme given that Article 30 expressly recognises the right of minorities to establish and administer educational institutions (¶86).

Some provisions of the Madarsa Act conflict with the UGC Act

The Supreme Court held that the UGC Act has been enacted by Parliament under Entry 66 of List I (‘standards for higher education’ in the Union List). The Court observed that it had held in several cases that the UGC Act occupies the field concerning the coordination and determination of standards in higher education. Further, Entry 25 of List III is expressly subject to, and thus subordinate to, Entry 66 of List I. Therefore, the Madarsa Act, to the extent that it seeks to regulate higher education, is in conflict with the UGC Act and would be beyond the legislative competence of the state legislature (¶93). Thus, the provisions of the Madarsa Act which regulate higher education, such as the degrees of Kamil and Fazil (Bachelor's level and Post-graduate degree) are unconstitutional (¶99). However, the Court observed that the regulation of these higher education degrees is separable from the remainder of the Madarsa Act. Therefore, the Supreme Court held that only the provisions which pertain to Fazil and Kamil are unconstitutional and the rest of the Madarsa Act is valid (¶¶102-103).

Prepared by Osama Noor

Centre for Research and Planning, Supreme Court of India

PROPERTY OWNERS ASSOCIATION V. STATE OF MAHARASHTRA .2024 INSC 835 (5 November 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Hrishikesh Roy, Justice B.V. Nagarathna, Justice Sudhanshu Dhulia, Justice Jamshed B. Pardiwala, Justice Manoj Misra, Justice Rajesh Bindal, Justice Satish C. Sharma, Justice Augustine G. Masih

(i) What is the correct interpretation of Article 31C of the Constitution after the judgment of Minerva Mills v. Union of India (1980 INSC 142 ) (“Minerva Mills”)? (ii) Whether privately owned property constitutes ‘material resources of the community’ which can be acquired and distributed by the state in furtherance of Article 39(b) of the Constitution.

The State of Maharashtra enacted the Maharashtra Housing and Area Development Act, 1976 (“MHADA”) to facilitate the reconstruction of old dangerous buildings and improve slum areas. In 1986, the State of Maharashtra amended MHADA to include Chapter VIII-A, which allowed for the acquisition of redeveloped properties for the erstwhile occupiers. Section 1A was also inserted in the MHADA, which states that MHADA gives effect to a State policy specified in Clause (b) of Article 39 of the Constitution. Article 39(b) provides that the State shall ensure that ownership and control over “material resources of the community” are distributed to serve the common good.

The constitutional validity of Chapter VIIIA was challenged in the Bombay High Court. On 13 December 1991, the High Court held that Chapter VIII-A was saved by Article 31-C, as it gave effect to the principles laid down in Article 39(b). Article 31-C says that laws giving effect to the principles in Article 39(b) and (c) cannot be struck down for violating Articles 14 (equality) and Article 19 (right to freedom).

The Appellants appealed to the Supreme Court, which, on 1 May 1996, referred the matter to a larger bench because it found that the interpretation of Article 31-C was disputed. On 21 March 2001, a Constitution Bench (five judges) of the Supreme Court, referred the case to a Seven-Judge Bench because it observed that the correctness of Sanjeev Coke Manufacturing v. Bharat Coking Coal (1982 INSC 93) (“Sanjeev Coke”), which itself was decided by seven judges, needed to be reconsidered. This was because Sanjeev Coke relied on a concurring but minority opinion by Justice Krishna Iyer in State of Karnataka v. Ranganatha Reddy (1977 INSC 196) (“Ranganatha Reddy”) regarding the interpretation of “material resources of the community”.

On 19 February 2002, a Seven-Judge Bench referred the case to a Nine-Judge Bench to reconsider the broad view taken by the Nine-Judge Bench in Mafatlal Industries Ltd v. Union of India (1996 INSC 1514) regarding what types of property constituted “material resources of the community” under Article 39(b).

The Supreme Court by a 7-2 majority held that not all private property constitutes ‘material resources of the community’ in Articles 39(b) and (c) to be acquired and redistributed by the State. It overruled the decision of Sanjeev Coke which held that private resources also come under the material resources of the community. The judgment for the majority was written by Chief Justice Candrachud.

Justice Nagarathna authored a separate partly dissenting opinion holding that all privately owned resources except for “personal effects” can constitute “material resources of the community” and private property can be “transformed” into community resources through processes such as nationalisation or acquisition. Justice Dhulia also delivered a dissenting opinion holding that income and wealth inequality are enormous and the broad interpretation of “material resources of the community” adopted in Ranganatha Reddy and Sanjiv Coke is correct.

All Nine Judges held that Article 31-C continues to prevent statutes from being struck down for violating Articles 14 and 19 if they give effect to Articles 39(b) and (c), as interpreted in this judgement. The constitutionality of the MHADA will now be decided by a regular bench based on the principles laid down in this case.

Invalidation of an amendment revives the unamended text

The interpretation of Article 31-C was disputed because an amendment to Article 31-C had been struck down and a question arose as to whether the text as it stood before the amendment continued to have effect. The Supreme Court held that when an amendment is struck down, the original unamended text is revived unless there was clear legislative intent to repeal the amended provision independently. The Court observed that invalidating the amended text without enforcing the original (unamended) text would create a gap in the law, leaving an area entirely unregulated contrary to legislative intent, which may lead to potentially absurd results, and even create a constitutional crisis (¶¶57-60 J. Chandrachud, ¶3 J. Nagarathna, ¶1J. Dhulia).

The Supreme Court ruled that, when amending Article 31-C, the legislature only intended to modify and not repeal the Article. The Court also observed that the unamended text of Article 31-C had itself been challenged and upheld in Kesavananda Bharati v. Union of India (“Kesavananda Bharati”) (1973 INSC 91). Thus, after the amendment to Article 31-C was struck down in Minerva Mills, the unamended Article 31-C stood revived. To hold otherwise would be to indirectly strike down language previously upheld in Kesavananda Bharti. Thus, Article 31-C continues to protect legislation giving effect to the principles of Articles 39(b) and (c) (¶¶55,70-71 J. Chandrachud, ¶3 J. Nagarathna, ¶2 J. Dhulia).

Correctness of Sanjeev Coke and cases following Ranganathan Reddy

The majority observed that Sanjeev Coke incorrectly relied on the minority view in Ranganatha Reddy. A concurring opinion by a minority of judges does not serve as binding precedent unless it is undisputed by the majority and forms part of the judgment's core reasoning (¶¶99-100). The majority in Ranganatha Reddy expressly disagreed with Justice Krishna Iyer's interpretation of Article 39(b) and clarified that they did not adopt his view, thus precluding future reliance on his interpretation. Therefore, the Five-Judge bench in Sanjeev Coke should have followed the majority view in Ranganatha Reddy, rather than the minority’s view (¶¶102, 104-105). The majority also held that Mafatlal’s reliance on Ranganathan Reddy was purely incidental and limited to the socio-economic values espoused by Article 39(b) (¶¶120,127 J. Chandrachud, ¶20 J. Nagarathna).

However, Justice Dhulia in his dissent held that as the majority in Ranganath Reddy had been silent on the issue, and the concurring opinion in Ranganatha Reddy had reached the same conclusion as the majority, but only by a different reasoning, the concurring opinion in Ranganatha Reddy could be followed (¶¶28-29 J.Dhulia).

Not all privately owned property forms part of the material resources of the community

The majority judgment held that while the Constitution embodies ideals of "economic democracy," it does not prescribe a single economic model, leaving future generations free to choose the path toward economic justice (¶¶153, 168). The majority reasoned that an interpretation of Article 39(b) which places all private property within the net of the phrase “material resources of the community” only satisfies one of the three requirements of the phrase, i.e., that the goods in question must be a ‘resource’. However, it ignores the elements that they must be “material” and “of the community”. It ruled that the words “material” and “community” must also be given effect. It held that the words “of the community” must be understood as separate from the “individual” (¶211).

The majority, however, also held that the use of the word “of the community” rather than “of the state” indicated a specific intention to include some privately owned resources (¶211 J. Chandrachud). However, the majority ruled that to hold that all private property can be acquired and redistributed through State action would violate the constitutional protection of the right to property (¶220). The majority outlined certain principles to determine whether privately owned resources are covered by Article 39(b): (i) the nature of the resource and its inherent characteristics; (ii) the impact of the resource on the well-being of the community; (iii); the scarcity of the resource; and (iv) the consequences of such a resource being concentrated in the hands of private owners (¶222).

In her separate opinion, Justice Nagarathna observed that all privately owned material resources should be first converted into the “material resources of the community” and only then can be distributed to serve the common good (¶¶7.8-7.9, 11.8, 12.3 J. Nagarathna), except personal belongings (¶7.6 J. Nagarathna). The States may transform private property into material resources of the community either by way of nationalisation, acquisition or vesting of such resources with the State (¶11.9 J. Nagarathna). The owner of private property must be fairly compensated for their losses when their resources are transformed into the resources of the community (¶11.10 J. Nagarathna). She also observed that any policy or law to enforce Article 39(b) is protected under Article 31C but its implementation should not violate Article 14 (¶13.11 J. Nagarathna).

Justice Dhulia in his dissent observed that the phrase “material resources of the community must be given an expansive meaning (¶48 J.Dhulia). It is the task of the legislature to decide what and when privately owned resources that serve the common good form part of the material resources of the community (¶49 J.Dhulia). The social inequalities that existed at the time of commencement of the Constitution still exist and therefore the principles laid down in Articles 38 and 39 cannot be abandoned (¶¶35, 45, 50 J.Dhulia).

Prepared by Osama Noor and Benila B M

Centre for Research and Planning, Supreme Court of India

STATE OF U.P. . V. M/S. LALTA PRASAD VAISH AND SONS2024 INSC 812 (23 October 2024)

Justices: Chief Justice Dr. Dhananjaya Y. Chandrachud, Justice Hrishikesh Roy, Justice Abhay S. Oka, Justice Bengaluru V. Nagarathna, Justice Jamshed B. Pardiwala, Justice Manoj Misra, Justice Ujjal Bhuyan, Justice Satish C. Sharma, Justice Augustine G. Masih.

(i) Whether the term "intoxicating liquors" in Entry 8 of List II of the Seventh Schedule (the State List) of the Constitution of India includes ‘industrial alcohol’ within its scope. (ii) Does a state legislature possess the legislative competence to enact laws regulating ‘industrial alcohol?’

Alcohol is categorized into two categories, potable (drinkable) liquor and industrial alcohol. Sometimes potable liquor is produced illegally by processing industrial alcohol. The production, manufacture, possession, sale, purchase, and transport of “intoxicating liquors” falls under Entry 8 of List II (the State List) of the Seventh Schedule of the Constitution.

In 1990, a Seven-Judge Bench of the Supreme Court in Synthetics & Chemicals v. State of U.P (“Synthetics”) (1989 INSC 321) held that ‘intoxicating liquor’ under Entry 8 of the State List only includes potable liquor and therefore, the State Legislature cannot pass laws regarding industrial alcohol. It also held that Section 18G of the Industries (Development and Regulation) Act 1951(“IDRA”) was a comprehensive provision by Parliament which excluded the State’s power to regulate industrial alcohol under Entry 33 of List III (the Concurrent List). Entry 33 allows both the state and Union governments to make laws on the products of any industry, even if Parliament had granted the Union Government power to regulate an industry in the public interest. Section 18G of IDRA empowers the Union Government to regulate the supply, distribution, trade and commerce of any scheduled industry for securing equitable distribution and fair prices.

Subsequently, on 25 May 1999, the Government of Uttar Pradesh issued a notification under the U.P. Licenses for the Possession of Denatured Spirit and Specially Denatured Spirit Rules, 1976, imposing a 15% licence fee on the sale of specially denatured spirits (alcohol with additives making it unsuitable for consumption). The Respondent challenged the notification, arguing that the state had no power to regulate denatured spirits given Section 18-G of the IDRA. On 12 February 2004, the Allahabad High Court struck down Uttar Pradesh’s notification. The State of U.P. appealed to the Supreme Court.

In 2007, a Three-Judge Bench of the Supreme Court in State of U.P v. Lalta Prasad Vaish observed that the Seven-Judge Bench decision in Synthetics needed reconsideration by a larger bench. Subsequently, a Constitution Bench (five judges) referred the matter to a Nine-Judge Bench for consideration.

The Nine-Judge Bench of the Supreme Court by an 8:1 majority upheld a State Legislature’s power to regulate industrial alcohol and overruled the judgement in Synthetics. Chief Justice Chandrachud authored the majority opinion on behalf of Justice Roy, Justice Oka, Justice Pardiwala, Justice Misra, Justice Bhuyan, Justice Sharma and Justice Masih while Justice Nagarathna authored a dissenting opinion.

The majority held that the expression “intoxicating liquors” under Entry 8 of the State List was inclusive of all kinds of alcohol which are detrimental to health. This includes denatured spirits used as raw materials to produce potable alcohol. Thus, the IDRA must be interpreted as excluding “intoxicating liquors” as interpreted in this judgment. Given the finding that industrial alcohol fell under Entry 8 of the State List, the majority held it was not necessary to decide whether orders under Section 18G of the IDRA excluded states’ power to regulate products under Entry 33 of the Concurrent List.

Justice Nagarathna, in her dissenting opinion, held that ‘industrial alcohol’ is distinct from “intoxicating liquors” asserting that while States have the authority to regulate ‘intoxicating liquor’ intended for human consumption, they lack the legislative competence to legislate ‘industrial alcohol’ because of Entry 52 of List I of the Seventh Schedule (industries which the Union Government controls in the public interest) and the statutory framework of the IDRA.

Harmonious Interpretation

The Supreme Court held that when there is a conflict between the entries in the Union List and the State List, the power of Parliament prevails. The Court also observed that whenever a conflict between the legislative powers of the Union and States arises, the Court must read the entries harmoniously and the federal supremacy of the Parliament should be invoked only when there is an irreconcilable conflict (¶¶43-46 CJ. Chandrachud).

Parliament does not have the legislative competence to take over the control of the industry of intoxicating liquor.

The majority observed that if Parliament legislates on an industry under Entry 52 of the Union list, it should satisfy the condition mentioned under Entry 52 which is that the control of that particular industry by the Union must be in the public interest (¶¶52-54 CJ. Chandrachud). Parliament cannot occupy a regulatory area merely by issuing a declaration under Entry 52, the state legislature’s power is only limited to the extent of the law passed by Parliament (¶140(b) CJ. Chandrachud).

The majority observed that ordinarily Entry 52 of Union List covered industries while Entry 33 of Concurrent List covered products, which both the States and Union could regulate. However, in the case of Entry 8, the Entry covered not only the product, but the entire industry (¶¶56-58 CJ. Chandrachud). Thus, there was an overlap between Entry 52 of the Union List and Entry 8 of the State List on the subject of ‘intoxicating liquor’ and a harmonious interpretation could be arrived at only by excluding the industry either from Entry 52 of the Union List or Entry 8 of the State List (¶71 CJ. Chandrachud). The Court held that since Entry 52 of the Union list was a general entry for industries while Entry 8 of the State List was a special entry for “intoxicating liquors”, the special entry must prevail (¶71 CJ. Chandrachud). Therefore, Parliament does not have legislative competence to pass laws regulating ‘intoxicating liquor’ under Entry 52 (¶¶71-72 CJ. Chandrachud).

Meaning of the expression ‘intoxicating liquor’

The majority observed that the meaning of ‘intoxicating liquor’ in Entry 8 of the State List had been expanded beyond the narrow definition of intoxicating alcoholic beverages in the Southern Pharmaceuticals & Chemicals v. State of Kerala (1981 INSC 154) case and does not have a fixed legislative meaning (¶¶82, 87 CJ. Chandrachud). The Court noted that liquids which contain alcohol and can possibly be used for intoxicating effects have also been included within the phrase ‘intoxicating liquor’ (¶82 CJ. Chandrachud). Further, it was observed by the majority that Entry 8 of the State List included every stage (from production to consumption) regarding “intoxicating liquors” to prevent them from being used noxiously (¶112 CJ. Chandrachud).

In her dissenting opinion, Justice Nagarathna distinguished ‘industrial alcohol’ from potable alcohol based on its intended uses. While industrial alcohol may have intoxicating effects if misused, it is primarily designed for non-consumable purposes and is not intended for ingestion as a beverage (¶¶12.18-12.21 J. Nagarathna). Conversely, “intoxicating liquors” specifically refer to beverages meant for direct consumption. The key factor is the product's nature and its potential to cause intoxication when consumed directly (¶12.14 J. Nagarathna). Justice Nagarathna emphasised that ‘consumption’ should be understood as the act of direct consumption by drinking, excluding indirect uses of alcohol as a raw material in industrial, medicinal, or personal care products (¶12.14 J. Nagarathna).

On the application of Section 18G of Industries (Development and Regulation) Act 1951

The majority held that given its the finding that denatured alcohol is covered under the expression “intoxicating liquors” in Entry 8 of the State List, the issue of whether Section 18G of the IDRA prevents States from regulating ‘intoxicating liquor’ under Entry 33 of the Concurrent List does not arise for adjudication (¶139 CJ. Chandrachud).

In her dissenting opinion, Justice Nagarathna asserted that denatured alcohol belongs to the family of ‘industrial alcohol’ (not fit for human consumption) and therefore, Section 18G of the IDRA has a bearing on the said product (¶¶10.3, 10.7 J. Nagarathna). Justice Nagarathna found that the mere enactment of section 18G of the IDRA gives rise to a presumption that Parliament and the Union Government intended to encompass the entire scope of Entry 33(a) in List III, thereby removing the States’ authority to legislate on the subject (¶17 J. Nagarathna). The IDRA, established under Entry 52 of List I, allows the Union Government to exercise control over scheduled industries. Justice Nagarathna highlighted that the amendment made in 2016 to the First Schedule of IDRA explicitly excluded potable alcohol from the definition of ‘Fermentation Industries,’ in the IDRA, thereby encompassing only non-potable alcohol like industrial alcohol (¶16.10 J. Nagarathna). She emphasised that the mere possibility of converting industrial alcohol into “intoxicating liquors” does not empower state legislatures to impose taxes or regulations on it (¶11.2 J. Nagarathna).

Prepared by Raza Zaidi and Vidhi Gupta

Centre for Research and Planning | Supreme Court of India

Judgment Summaries are prepared to help promote a better understanding of the decisions of the Supreme Court of India. They do not form part of the Court's decision or reasons and are not for use in legal proceedings.

IN RE SECTION 6A OF THE CITIZENSHIP ACT 1955 V. 2024 INSC 789 (17 October 2024)

Chief Justice Dr. Dhananjaya Y. Chandrachud, Justice Surya Kant, Justice M.M. Sundresh, Justice Jamshed B. Pardiwala, Justice Manoj Mishra

Whether Section 6A of the Citizenship Act, 1955 (“Citizenship Act”) violates Articles 11 (power to regulate citizenship), 14 (equality), 29 (protection of minority interests), 326 (right to vote), and 355 (duty of Union to protect states) of the Constitution.

Following the Bangladesh Liberation War in 1971, there was an influx of immigrants into Assam. Various groups protested against the influx of immigrants resulting in the signing of the Assam Accord on 15 August 1985 between the Union Government and the protesting groups. To provide legislative effect to the Assam Accord, Parliament enacted Section 6A in the Citizenship Act in 1985.

Under Section 6A, immigrants of Indian origin who entered Assam before 1 January 1966 were recognised as Indian citizens. Further, those who arrived between 1 January 1966 and 24 March 1971 were to be granted citizenship subject to the fulfilment of certain conditions including; (i) their detection as a ‘foreigner’ by the Foreigners Tribunal; (ii) their continuing to be an ordinary resident of Assam since entering Assam; and (iii) deletion of their names from the electoral rolls for ten years. All those who satisfied these conditions were to be granted citizenship after ten years.

Several writ petitions were filed under Article 32 challenging the constitutional validity of Section 6A, contending that: Parliament was not empowered to enact such a law under Articles 6, 7, and 11 of the Constitution; Section 6A violated the right to equality and the rights of minorities under Articles 14 and 29; and the duty of the Union to protect the State of Assam from external aggression under Article 355 of the Constitution. On 17 December 2014, a Division Bench of the Supreme Court (Two Judges) noted the important constitutional issues in the case and referred the matter to a Constitution Bench (Five Judges).

A Constitution Bench (five judges) of the Supreme Court by a majority of 4:1 upheld the constitutional validity of Section 6A. Justice Kant on behalf of himself and Justices Sundresh and Mishra authored the majority opinion and Chief Justice Chandrachud authored a separate concurring opinion. Justice Pardiwala authored a dissenting judgment declaring Section 6A invalid.

In response to the contention that Section 6A was not being adequately enforced, the majority issued the following directions:

The directions issued in Sarbananda Sonowal v Union of India (2005 INSC 287) should be followed to deport the illegal migrants who entered after 1971.

The provisions of the Immigrants (Expulsion from Assam) Act, 1950 should be integrated with Section 6A for identifying illegal immigrants.

The current statutory framework and tribunals for identifying illegal immigrants in Assam are inadequate and must be enhanced to enforce the legislative intent of Section 6A in a time-bound manner.

Objections on the maintainability

The Supreme Court held that courts have the power to review a foreign policy when it is in the form of a statute (¶¶46, 53 J. Kant, ¶¶6-8J. Pardiwala). Despite the Petitioners approaching the Court many years after Section 6A was enacted, the Court held that the doctrine of laches (delay) would not proscribe the Petitioner’s claim as it affects the larger public interest and the constitutionality of a provision (¶¶69-72, 75 J. Kant, ¶8 J. Pardiwala).

Section 6A conforms with Part II of the constitution

The majority held that Section 6A aligns with the fundamental purpose of Articles 6 and 7 of the Constitution, which seek to provide citizenship to individuals of Indian origin who suffered from political disturbances in neighbouring nations (¶132 J. Kant). In any case, the provisions in Part II of the Constitution (Arts 5-11) only prescribe who would be granted citizenship at the commencement of the Constitution. Citizenship after the commencement of the Constitution would be governed by Parliamentary law (¶139 J. Kant, ¶¶31,39,40 J. Chandrachud). Chief Justice Chandrachud held that Article 246 read with Entry 17 of List I in the Seventh Schedule confers Parliament the power to enact laws on citizenship (¶¶34-35 J. Chandrachud).

Justice Pardiwala in his dissenting opinion held that Section 6A is not similar to Articles 6 and 7 because Section 6A(3) of the Citizenship Act puts the burden on the State to determine suspected immigrants as opposed to requiring individuals to register for citizenship (¶12). Justice Pardiwala also noted that unlike Article 6, Section 6A does not specify a cut-off date till when applications for citizenship could be made. The different onus of identifying foreigners and the lack of a cut-off date made Section 6A different from Article 6 (¶¶12, 212).

Section 6A does not violate Article 14

The Supreme Court held that Section 6A does not violate Article 14 of the Constitution. Article 14 allows the legislature to classify individuals into different groups and treat them differently but such classifications must be based on an intelligible differentia and have a reasonable connection to the purpose sought to be achieved by classifying individuals(¶¶168-177 J.Kant, ¶¶59, 68c J. Chandrachud). Assam, with a high influx of migrants and a small area, faces unique challenges in comparison with other states and therefore treating the situation in Assam is an intelligible classification (¶¶202-205 J.Kant). The federal structure allows the Union Government to have separate treaty arrangements with the states and Section 6A was inserted to bring the Assam Accord into effect (¶¶192, 188 J.Kant, ¶71 Chandrachud). This provides a sufficient reason for Parliament to have enacted Section 6A solely for the State of Assam (¶189 J.Kant, ¶15 J. Pardiwala).

Section 6A is not arbitrary or unreasonable

The majority found that there were historical reasons for the different cut-off dates and legitimate reasons for categorising migrants (¶¶232, 238-239, 241 J.Kant, ¶75 Chandrachud). As those who suffered political turmoil and entered Assam before 1 January 1966 were already included in the electoral rolls and 25 March 1971 marked the date of beginning of the Bangladesh Liberation war and the date of grant of Bangladeshi citizenship under the Bangladesh Citizenship (Temporary Provisions) Order, 1972, there was a valid rationale for the cut off dates (¶¶228-231 J.Kant).Therefore, Section 6A is not manifestly arbitrary because there was careful consideration behind the different cut-off dates. Further, the term “ordinary residence” in Section 6A is not too vague to be undefined (¶273 J. Kant).

In his dissent, Justice Pardiwala observed that there was no time limit by when all immigrants who entered Assam between 1966-71 had to be identified and could claim the benefits of Section 6A (¶¶129-130, 139 J. Pardiwala). Justice Pardiwala also observed that Section 6A(3) does not permit an immigrant to voluntarily seek citizenship. Rather, an immigrant has to wait, potentially indefinitely, for a reference to be made by the State to the Foreigners Tribunal (¶175 J. Pardiwala). Finally, Justice Pardiwala also observed that the requirement that the immigrant be an “ordinary resident in Assam” was vague and encouraged immigrants from neighbouring Indian states to immigrate to Assam to claim the benefit of Section 6A(3) (¶186 J. Pardiwala).

Justice Pardiwala in his dissent observed that the goal of Section 6A(3) was the effective identification of immigrants between 1966 and 1971. He ruled that the above-mentioned flaws of Section 6A meant that the provision no longer achieves this goal and is hence unreasonable and unjustified (¶¶169, 189 J. Pardiwala). Justice Pardiwala ruled that the circumstances that existed at the time of the Assam Accord do not justify the continued operation of this arbitrary mechanism of establishing citizenship (¶190 J. Pardiwala).

Justice Pardiwala in his dissenting opinion held that the Supreme Court has the power to mould relief to do complete justice to avoid the possibility of chaos and confusion that may be caused in the society. Therefore, he declared Section 6A as unconstitutional with prospective effect to ensure that immigrants who have already claimed the benefit of Section 6A are not deprived of citizenship (¶206 J. Pardiwala).

In his concurring opinion, Chief Justice Chandrachud held that Section 6A contemplated rules and sufficient infrastructure to ensure that immigrants of Indian origin from Bangladesh could acquire citizenship (¶119 J. Chandrachud). Section 6A continues to serve this goal however, increased State capacity is needed to ensure the effective implementation of the provision. However, this does not render Section 6A unconstitutional (¶120 J.Chandrachud).

Section 6A does not violate the right of the indigenous people under Article 29(1)

The majority acknowledged that Assam has a distinct language, culture and script which are entitled to be preserved under Article 29(1) (¶288 J. Kant, ¶92 J. Chandrachud). However, it found that Section 6A provides for timely detection and deportation of illegal immigrants. Thus the challenge should be against the non-implementation of the statute and not its constitutionality (¶304 J. Kant).

Chief Justice Chandrachud observed that the mere presence of different ethnic groups cannot violate the right under Article 29(1) and various constitutional and statutory provisions provide for the protection of their distinct culture (¶¶100-102 J. Chandrachud).

Duty of a state under Article 355

The majority acknowledged that the Union Government holds a duty under Article 355 to protect its citizens from external aggression and internal disturbance (¶351 J.Kant, ¶87 J. Chandrachud). Although unabated migration could constitute external aggression, Section 6A does not promote unrestricted migration. It provides a regulated approach for the grant of citizenship to migrants who entered before 1971 and this cannot amount to external aggression (¶¶363-365 J.Kant).

In his concurrence, Chief Justice Chandrachud observed that while Article 355 does cast a duty on the Union Government, there is no corresponding right under Article 355 and thus a legislative enactment cannot be challenged on the ground that it breaches Article 355 (¶¶87,89 J. Chandrachud). Considering Article 355 as a separate ground for judicial review would defeat the object of the provision and the federal structure of the Constitution (¶¶89,90 J. Chandrachud).

Prepared by Benila B M and Osama Noor

Centre for Research and Planning, Supreme Court of India

OMKAR V. THE UNION OF INDIA2024 INSC 775 (15 October 2024)

Justice Bhushan R Gavai, Justice Aravind Kumar and Justice Kalpathy V. Viswanathan

Should a candidate with more than 40% speech and language disability be disqualified from obtaining admission under the PwD category for the MBBS course solely based on the quantification of their disability?

The Appellant had a speech and language disability. In 2024, the Appellant qualified for admission to the MBBS Course under the PwD category of the NEET UG exam. The National Medical Commission (“NMC”) guidelines prohibited students with more than 40% permanent disability from pursuing the MBBS course. The Appellant obtained a Disability Certificate after undergoing a medical examination before a Disability Assessment Board which quantified his disability at 45% and recorded that the Appellant was not eligible to pursue a medical course as per the NMC guidelines.

The Appellant approached the Bombay High Court challenging the legal validity of the NMC’s eligibility criteria for PwD category admissions. The High Court dismissed his petition. Subsequently, the Appellant approached the Supreme Court seeking urgent relief to participate in the counselling process for admission. On 2 September 2024, the Supreme Court issued an interim order directing that the seat the Appellant would have been entitled to if rendered eligible, be kept vacant. The Court also directed Maulana Azad Medical College to constitute a Medical Board to determine whether the speech and language disability of the Appellant would come in his way of pursuing the MBBS. In its report, the Medical Board opined that the Appellant’s speech and language disability would not hinder the Appellant from pursuing the MBBS Course.

A Three Judge Bench of the Supreme Court, based on the report submitted by the Medical Board, granted admission to the Appellant in the MBBS course. The judgment of the Court was authored by Justice Viswanathan.

State’s responsibility towards Persons with Disability

The Supreme Court observed that Article 41 of the Constitution creates a responsibility upon the State to secure the right to education for all persons including for persons with disabilities (¶16). Further, the Court observed that Sections 2(m), 2(r), 2(y), 3, 15 and 32 of the Rights of Persons with Disability Act, 2016, which were enacted to give effect to the United Nations Convention on the Right of Persons with Disability, imposes several obligations upon the State to empower such persons by ensuring equality, accessibility, and protecting them from discrimination (¶18).

Purposive Interpretation of Appendix H-1 of the Graduate Medical Education Regulations,1997

The Supreme Court observed that a literal reading of ‘Appendix H-I’ of the Graduate Medical Education Regulations 1997 inserted by the 2019 amendment created a peculiar situation where candidates with less than 40% disability could pursue MBBS courses but were ineligible for the 5% PwD reservation, while the candidates with more than 40% were not eligible for the course at all (¶20). The Court noted that a literal interpretation of the Regulations would mean that no one is eligible for the 5% PwD reservation, and such an interpretation cannot be accepted (¶20).

The Court further held that treating all candidates with a benchmark disability above 40% as ineligible, without distinguishing between those who, in the opinion of the Medical Board, can or cannot pursue the course would treat unequals equally (¶22). This would violate the right to equality under Article 14 of the Constitution (¶22).

Prepared by Raza Haider Zaidi

Centre for Research and Planning | Supreme Court of India

SUKANYA SHANTHA V. UNION OF INDIA2024 INSC 753 (3 October 2024)

Chief Justice Dr. Dhananjaya Y. Chandrachud, Justice Jamshed B. Pardiwala, Justice Manoj Mishra

Whether provisions in the Prison Manuals of various States which distinguish between inmates based on caste are unconstitutional.

Sukanya Shantha (“Petitioner”), a journalist, wrote an article titled “From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison System” which was published on 10 December 2020. The article highlighted caste-based discrimination in prisons. The Petitioner subsequently approached the Supreme Court under Article 32 of the Constitution challenging the constitutionality of various provisions in State Prison Manuals.

Some of the Prison Manual provisions challenged stated that: (i) A convict sentenced to simple imprisonment shall not be called upon to perform duties of a degrading or menial character unless he belongs to a class or community accustomed to performing such duties; (ii) A convict overseer may be appointed as a night guard provided he does not belong to any class that may have a strong natural tendency to escape, such as men of wandering tribes; (iii) Food shall be cooked and carried to the cells by prisoner-cooks of suitable caste; (iv) Sweepers should be chosen from the Mether or Hari caste, also from the Chandal or other castes, if by the custom of the district they perform similar work when free; and (v) Any prisoner in a jail who is of so high a caste that he cannot eat food cooked by the existing cooks shall be appointed a cook and be made to cook for the full complement of men.

The Petitioner argued that caste-based discrimination continues to persist in prisons The States of Jharkhand, Uttar Pradesh, West Bengal, Maharashtra, Orissa, Karnataka, Andhra Pradesh, and Tamil Nadu appeared before the Supreme Court.

A Three Judge Bench of the Supreme Court held that the challenged Prison Manual provisions were unconstitutional and violated the following articles of the Constitution: Article 14 (equality), Article 15 (prohibition of caste discrimination), Article 17 (abolition of untouchability), Article 21 (life and liberty), and Article 23 (forced labour). The Court ordered the States to revise their prison manuals within three months. It also asked for a status report from the states. The judgment of the Court was authored by Chief Justice Chandrachud.

Classification based on caste under the Prison Manuals is unconstitutional

The Supreme Court held that the Government can differentiate between citizens based on caste only to create protective policies for marginalised castes and not to further discrimination (¶164). The Court held that the caste classification done in the Prison Manuals had no rational nexus with the object of the classification, which was the orderly running of prisons and reforming inmates (¶165). The Supreme Court held that the Prison Manual rules reinforce the occupational immobility of prisoners of certain castes, which contributes to institutional discrimination, depriving inmates of an equal opportunity to reform (¶¶185-186). The Court held that provisions which differentiate between citizens based on “habit”, “custom”, “superior mode of living”, and “natural tendency to escape” are unconstitutionally vague and indeterminate (¶168).

The Supreme Court held that by assigning cleaning and sweeping work to marginalised castes, while allowing the “high” castes to do cooking, the Manuals directly discriminate based on caste and thus violate Article 15(1) of the Constitution (¶171). The Supreme Court also held that the Manuals indirectly discriminate against marginalised castes by using broad phrases such as “menial” jobs to be performed by castes “accustomed to perform such duties.” While such phrases may appear to be neutral, they refer to marginalised communities. These provisions disproportionately harm marginalised castes and perpetuate caste-based labour divisions (¶172). The Supreme Court held that only such classification that proceeds from an objective inquiry of factors such as work aptitude, accommodation needs, and special medical and psychological needs of the prisoner would pass a test of reasonable classification (¶169).

Discrimination against de-notified tribes is unconstitutional

The Supreme Court held that the Prison Manual rule which prevented members of de-notified tribes from being overseers reinforces a stereotype which excludes them from meaningful participation in social life (¶¶174-175). These stereotypes not only criminalise entire communities but also reinforce caste-based prejudices. They resemble a form of untouchability, as they assign certain negative traits to specific groups based on identity, perpetuating their marginalisation and exclusion (¶183). The Court ruled that discrimination against de-notified tribes is prohibited under Article 15(1) as it is a form of caste discrimination (¶175).

Notion of Untouchability

The Supreme Court held that some of the provisions of the Prison Manuals which assigned “degrading or menial” work to certain castes were unconstitutional. The Court ruled that the notion that an occupation is considered “degrading or menial” is an aspect of the caste system and untouchability (¶179). The provision that food shall be cooked by a “suitable caste” reflects notions of untouchability. The Court held that the division of work based on caste is a practice of untouchability prohibited under the Constitution under Article 17 (¶180).

Caste-based division of labour is forced labour under Article 23

The Supreme Court ruled that forcing marginalised caste inmates to perform tasks like cleaning latrines or sweeping, without providing them any choice in the matter amounts to “forced labour” under Article 23 because it strips individuals of their liberty to engage in meaningful work, and denies them the opportunity to rise above the constraints imposed by their social identity (¶¶193-195).

Need of change in the Model Prisons and Correctional Services Act, 2023

The Supreme Court ruled that a provision prohibiting all forms of caste discrimination in prisons should be inserted in the Model Prisons and Correctional Services Act, 2023 (“Model Act 2023) (¶210).

The Supreme Court also ruled that the definition of “Habitual Offender” under Section 2(12) of the Model Act 2023 is vague and over-broad (¶211). The Court also held that the classification of “habitual offender” in the Prison Manuals has been used to target members of de-notified tribes and this can not be allowed (¶218). However, since habitual offender laws were not in challenge in this case, the Court urged the State governments to reconsider the usage of various habitual offender laws. In the meantime, the Court held that the definition of “habitual offender” in the prison manuals/rules shall be interpreted per the definition provided in the habitual offender legislation enacted by the respective State legislature, subject to any constitutional challenge against such legislation in the future. The Court held that if there is no habitual offender legislation in the State, the references to habitual offenders directly or indirectly in Prison Manuals, as discussed in this judgment, would be struck down as unconstitutional (¶219).

Directions to the Union Government and States

The Supreme Court held that the “caste” column and any references to caste in undertrial and/or convicts’ prisoners’ registers inside the prisons shall be deleted. The Court directed the All States and Union Territories to revise their Prison Manuals/Rules per this judgment within three months. The Court also directed the Union government to make necessary changes, as highlighted in this judgment, to address caste-based discrimination in the Model Prison Manual 2016 and the Model Act 2023 within three months.

The Supreme Court took cognizance of the discrimination inside prisons on any grounds such as caste, gender, or disability and listed the case after three months to check compliance of this judgment. The Court also directed the District Legal Services Authority of the states and the Board of Visitors formed under the Model Prison Manual 2016 to jointly conduct regular inspections of prisons to identify whether caste-based discrimination or similar discriminatory practices as highlighted in this judgment, were still taking place and submit a report to the Supreme Court.

Prepared by Osama Noor

Centre for Research and Planning, Supreme Court of India

V. SENTHIL BALAJI V. THE DEPUTY DIRECTOR2024 INSC 739 (26 September 2024)

Justice Abhay S. Oka, Justice Augustine G. Masih

(i) When should constitutional courts grant bail for offences in statutes with stringent bail conditions? (ii) Whether Mr. V. Senthil Balaji (“the Appellant”) is entitled to bail.

The Appellant was a former Minister of Transport in the Government of Tamil Nadu. Three First Information Reports (“FIRs”) were registered against the Appellant between 2015-18 on the allegation that he, with his secretary and brother, collected large amounts of money to provide jobs to several persons in the transport department. The chargesheets name 2,000 accused persons alongside the Appellant and 600 state witnesses.

Based on these alleged offences, on 29 July 2021 the Directorate of Enforcement (“ED”) registered a case of money laundering against the Appellant under the Prevention of Money Laundering Act, 2002 (“PMLA”). Section 45 of the PMLA puts serious restrictions on the grant of bail by mandating a court hearing the bail application be satisfied that there are reasonable grounds for believing that the accused person is not guilty of the offence and they are not likely to commit any offence while on bail. The ED arrested the Appellant on 14 June 2023. On 28 February 2018, the Madras High Court denied the Appellant’s request for bail. Therefore, he appealed to the Supreme Court.

The Division Bench (two judges) of the Supreme Court granted bail to the Appellant subject to certain conditions including that he would mark his presence twice a week in the office of Deputy Director, ED in Chennai and he would surrender his passport to the PMLA Court. The judgment of the Court was authored by Justice Oka.

Effect of delay in the trial

The Supreme Court held that the existence of an underlying “scheduled” offence (referred to as “scheduled offences” because they are listed in the Schedule of the PMLA) is a must to prove the laundering of the “proceeds of crime” in a PMLA case (¶20). Proceeds of crime means property obtained directly or indirectly by a person as a result of the criminal activity of the scheduled offence. In other words, if the underlying scheduled offence is not proven, no question of laundering the proceeds of a crime can arise, as there is no underlying crime. Thus, the conclusion of the PMLA case is contingent on the trial in the underlying scheduled offence concluding (¶21).

The Supreme Court found that in the Appellant’s case, even if he were to be convicted in the PMLA case, the maximum punishment which could be imposed would be seven years (¶14). The Appellant had already been in custody for over fifteen months (¶14). The Court ruled that considering the large number of accused persons, witnesses and voluminous documentary evidence, the likelihood of the trial of the underlying scheduled offences concluding even within a reasonable time of three to four years is not possible (¶17).

Power of the constitutional courts in granting bail

The Supreme Court reiterated the principle that constitutional courts have the power to grant bail on the grounds of long incarceration and delay in the completion of trial for which the accused is not responsible, even in those offences in which there are higher thresholds for the grant of bail (¶24). The Court held that although Section 45 of the PMLA has a high threshold for granting bail, such provisions should not become tools to incarcerate accused persons without a trial (¶27). The Court ruled that if the incarceration of an undertrial accused is continued for an unreasonably long time, this would be violative of their right to a speedy trial under Article 21 of the Constitution (¶26). Thus, the Court held that the Appellant’s indefinite detention would violate his right to liberty and a speedy trial under Article 21 of the Constitution (¶27).

The Supreme Court ruled that a reasonable time will depend on the provisions under which the accused is being tried and other factors such as the duration of the minimum and maximum sentence for the offence and any higher thresholds which a law provides for the grant of bail (¶27).

Prepared by Osama Noor

Centre for Research and Planning, Supreme Court of India

JUST RIGHTS FOR CHILDREN ALLIANCE V. S. HARISH2024 INSC 716 (23 September 2024)

Chief Justice Dr. Dhananjaya Y. Chandrachud and Justice Jamshed B. Pardiwala

(i) Whether viewing child sexual exploitation and abuse material (“CESAM”) is punishable under Section 15 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and Section 67B of the Information and Technology Act, 2000 (“IT Act”). (ii) Can Section 30 of the POCSO Act (statutory presumption of culpable mental state) be invoked in a quashing petition?

On 29 January 2020, the Police were informed that the accused person (“Respondent”) was an active consumer of CESAM (referred to as child pornography in the POCSO Act) and had allegedly downloaded material involving children on his mobile phone.

Subsequently, an FIR was registered against the Respondent under Section 67B of the IT Act (electronically publishing or transmitting material depicting children in sexual acts) and Section 14(1) of the POCSO Act (Punishment for using children for pornographic purposes). During the investigation, the Respondent revealed that he used to watch pornography in college. The Computer Forensic Analysis Report also found that the Respondent’s mobile had CESAM stored in it. Thus, when the chargesheet was filed, Section 14(1) was dropped and Section 15(1) (storage or possession of any pornographic material involving a child but a failure to delete, destroy or report it with an intention to share such material) was invoked.

The Respondent filed a petition to quash the criminal charges against him in the Madras High Court. On 11 January 2024, the High Court quashed the criminal proceedings by holding that mere watching or downloading of CESAM without any transmission or publication of the same was not an offence and the respondent had not used a child or children for pornographic purposes. The Appellants (a group of NGOs working against child trafficking and sexual exploitation) filed an appeal to the Supreme Court against the judgment of the High Court.

The Division Bench (two judges) of the Supreme Court set aside the judgment of the High Court and restored the criminal proceedings against the Respondent. The Court held that the mere viewing of CESAM is punishable if no step has been taken to delete or report it. The judgment of the Court was authored by Justice Pardiwala.

Scope of Section 15 of the POCSO

The Supreme Court held that Section 15(1) of the POCSO Act penalises the storage or possession of any pornographic material involving a child, a failure to delete, destroy or report it, and an intention to share such material.The Supreme Court held that Section 15(1) does not require the actual transmission of any CESAM to be attracted (¶81). The Court ruled that Section 15(1) penalises the possession of CESAM when done with a particular intention or purpose to share it (¶81). The Supreme Court ruled that this form of criminal act in criminal jurisprudence is known as an ‘Inchoate Crime’ or ‘Inchoate Offence’ (criminal acts that are committed in preparation for a further offence) (¶81). The Court ruled that the conduct that is also penalized under Section 15 is the failure to delete, destroy or report any CESAM that was stored or in possession of any person with an intention to share the same (¶84).

Viewing also amounts to possession

The Supreme Court held that before the 2019 Amendment in the POCSO Act, Section 15 only criminalized the storage of any CESAM for any commercial purpose. The 2019 Amendment introduced possession of CESAM in Section 15 as a separate offence to deter the consumption and dissemination of CESAM (¶113). The Court held that possession would include constructive possession i.e., possession not on one’s person but possession through a device or location one has control over (¶114). This ensures that an accused cannot avoid punishment simply by physically distancing themselves from the unlawful material (¶117). The Supreme Court referred to decisions from the United States where individuals who sought out, viewed, and then deleted CESAM were deemed to be in constructive possession of the unlawful material (¶¶115-116). Relying on these decisions, the Court ruled that wherever a person views, CESAM, even without actually storing it in any device or in any form, this act would still be tantamount to ‘possession’ under Section 15 of the POCSO Act, if they exercised control over such material (¶118).

No requirement of possession at the time of registration of the FIR

The Supreme Court observed that Section 15 of the POCSO Act does not specify when the person ‘stored’ or ‘possessed’ the CESAM and thus the offence occurs if it is established that the accused had ‘stored’ or ‘possessed’ CESAM with the specified intention at any point of time, even before the initiation of criminal proceedings (¶124).

On the facts of the Case:

The Supreme Court held that the CESAM that was recovered from the personal mobile phone of the Respondent which was regularly in use by him, prima facie established the storage or possession of CESAM. The Court further ruled that since the CESAM was found to have been stored in Respondent’s personal mobile phone since 2016 and 2019, prima facie it could be said there was a failure on the part of the Respondent to delete, destroy or report such material (¶203). The Court also rejected the Respondent's contention that he was genuinely ignorant about the law that mere storing CESAM was punishable under the POCSO Act (¶210-21).

Presumption of Criminal Mental State under Section 30 of POCSO

The Supreme Court observed that the peculiar nature of the crime under Section 15 makes it difficult for the prosecution to establish through direct evidence that the person intended to share the material (¶167). The Court ruled that malicious intention is a key element in such inchoate crimes. Therefore, to assist the prosecution, Section 30 creates a rebuttable presumption that the malicious intention exists. Section 30 of the POCSO Act directs a court dealing with any offence under the POCSO Act which requires malicious intention to be proven presume the accused had such malicious intention (¶156). However, certain foundational facts regarding the occurrence of the offence must be made out before the presumption is applicable (¶171).

Whether presumption under Section 30 can be used in quashing proceedings

The Supreme Court held that when High Courts are deciding whether to quash criminal proceedings, they can rely on the statutory presumption of malicious intention. If a statutory presumption is not used by the High Courts in quashing petitions, then an accused could bypass the statutory presumption concerning their malicious intention by approaching the High Courts directly , which would make the legislative presumption redundant (¶187). However, the statutory presumption may be ignored where no foundational facts have been established by the state (¶188).

Scope of Section 67B of the IT Act

The Supreme Court held that Section 67B not only punishes the electronic dissemination of CESAM but also the creation, possession, propagation and consumption of such material as-well as the different types of direct and indirect acts of online sexual denigration and exploitation of children (¶151).

Role of Intermediaries under Section 79 of the IT Act

The Supreme Court held that Section 79 of the IT Act, which provides online intermediaries with qualified immunity from hosting CSEAM uploaded by its users, cannot be invoked unless the intermediaries both remove the content and report the unlawful material to the concerned police units under the POCSO Act (¶¶255-256).

Discontinuation of the expression “Child Pornography”

The Supreme Court held that instead of the expression ‘child pornography’, the expression “child sexual exploitation and abuse material" must be used because it reflects the reality of the crime more accurately and emphasises the exploitation and abuse of the child by highlighting the criminal nature of the act and the need for a serious and robust response (¶¶227-228).

Suggestions to the Union of India:

The Supreme Court suggested the Union Government bring an amendment to the POCSO Act to replace the expression ‘child pornography’ with ‘child sexual exploitation and abuse material” so that the true nature of the offence can be reflected more accurately. In the meantime, the Court suggested bringing an ordinance for this change (¶260).

The Court also requested the Union Government to amend Section 15 subsection (1) of the POCSO Act to make it convenient for the general public to report, by way of an online portal, any instance of storage or possession of CSEAM to the authorities (¶260 ix).

Prepared by Osama Noor

Centre for Research and Planning, Supreme Court of India

ARVIND KEJRIWAL V. CENTRAL BUREAU OF INVESTIGATION2024 INSC 687 (13 September 2024)

Justice Surya Kant and Justice Ujjal Bhuyan

Question(s): (i) Whether the arrest of Mr. Arvind Kejriwal by the Central Bureau of Investigation (“CBI”) while he was in judicial custody for a separate case by the Enforcement Directorate (“ED”) is legal? (ii) Whether Mr. Kejriwal is entitled to bail in the CBI case.

The Delhi Government framed the Excise Policy 2021-2022 for the sale of liquor. In July 2022, the Lieutenant Governor of Delhi and the Union Home Ministry complained about financial irregularities concerning the policy. An investigation by the CBI led to the registration of a First Information Report (“FIR”) for the offences of criminal conspiracy, falsification of accounts and gratification for an official act (“CBI case”). Based on this FIR, the ED registered a separate case (“ED Case”) into the liquor policy. Mr. Kejriwal who was Chief Minister of Delhi at the time was not initially named in either the CBI or ED case.

On 21 March 2024, the ED arrested Mr. Kejriwal in the ED case. On 20 June 2024, the Trial Court granted Mr. Kejriwal bail in the ED case. However, on 21 June 2024, the Delhi High Court stayed the operation of this order and Mr. Kejriwal continued to remain in jail.

On 24 June 2024, the CBI sought permission from the Trial Court to interrogate Mr. Kejriwal, which was allowed. After the interrogation, the CBI applied to the Trial Court on 25 June 2024 to arrest Mr. Kejriwal, which the Trial Court allowed. On 29 June 2024, the Trial Court remanded Mr. Kejriwal to judicial custody. Meanwhile, on 12 July 2024, the Supreme Court granted bail to Mr. Kejriwal in the ED case.

Mr. Kejriwal approached the Delhi High Court challenging his arrest by the CBI and seeking bail under Section 439 of the Code of Criminal Procedure, 1973 (“CrPC”) in the CBI case. He argued that provisions of the CrPC regarding arrest had not been followed by the CBI. The Delhi High Court rejected the challenge to his arrest and declined to grant him bail under Section 439 of the CrPC. The High Court granted him the liberty to approach the Trial Court to seek bail. Instead, Mr. Kejriwal appealed the High Court’s decision to uphold his arrest's legality and deny him bail to the Supreme Court.

A Division Bench (two judges) of the Supreme Court authored two separate opinions. Both Judges agreed that Mr. Kejriwal should be granted bail. Justice Kant held that the arrest of Mr. Kejriwal when he was in judicial custody in the ED case was not illegal. However, Justice Bhuyan found the CBI’s arrest of Mr. Kejriwal unjustified.

Mr. Kejriwal’s bail was made subject to the conditions imposed on him when granting him bail in the ED Case. These conditions were that he would not visit his office or the Delhi Secretariat and he shall not sign official files unless it is required for obtaining approval of the Lieutenant Governor of Delhi.

Where the police wish to interrogate an accused whose arrest is not required, Section 41A(1) of the CrPC requires the police to issue a notice to them. Justice Kant held there was no violation of Section 41A(1) of the CrPC in Mr. Kejriwal’s case even though no notice was given to him because, at the time of Mr. Kejriwal’s arrest, he was under judicial custody in the ED case. Justice Kant ruled that Section 41A(1) of the CrPC does not mandate giving notice to an individual already in judicial custody, and the CBI were correct to approach the Trial Court to seek permission to arrest Mr. Kejriwal (¶¶20-21 J. Kant). Justice Kant pointed out that if the CBI had issued a notice to Mr. Kejriwal instead of approaching the Trial Court, this could have led to Mr. Kejriwal’s interrogation and arrest without the knowledge of the Trial Court (¶¶22-23 J. Kant).

Section 41A(2) of the CrPC states that an individual who responds to the notice under Section 41A(1) should not be arrested. However, Section 41A(3) of CrPC allows the arrest of an individual if the police officer believes it is necessary and records the reasons for the arrest. Justice Kant found that the CBI had recorded the reasons for arresting Mr. Kejriwal in its arrest memo and application to the Trial Court, namely that Mr. Kejriwal had allegedly given evasive responses to their questioning. As the CBI had recorded its reasons, Section 41A(3) was complied with and the arrest of Mr. Kejriwal was legal (¶¶25-27 J. Kant).

Justice Bhuyan took a different view on the necessity and timing of the arrest of Mr. Kejriwal. He observed that for twenty-two months following the registration of the CBI case, the CBI did not feel the need to arrest Mr. Kejriwal and only did so after he was granted bail in the ED Case. This raised the suspicion that the arrest was only to frustrate the bail that he was granted in the ED case (¶¶23, 31 J. Bhuyan). Justice Bhuyan also observed that every effort must be made to remove the perception that the arrest by the CBI was not made in a biased manner (¶32 J. Bhuyan).

Justice Bhuyan ruled that the CBI’s reasons for arresting Mr. Kejriwal, that he was not cooperating with the investigation and was evasive in his replies, were insufficient reasons to arrest Mr. Kejriwal (¶24 J. Bhuyan). He ruled that Article 20(3) of the Constitution (right against self-incrimination) entitles an accused person to not give a statement which may result in their arrest or prosecution. An accused has the right to remain silent (¶25 J. Bhuyan).

Mr. Kejriwal is entitled to bail

The Supreme Court held that the continued detention of Mr. Kejriwal would violate his personal liberty under Article 21 of the Constitution. The Court also recognised that he has already been granted bail in the ED case on the same set of facts and all the evidence is already with the CBI. Therefore, the Court ruled that he was eligible for bail (¶¶41-42 J. Kant, ¶37 J. Bhuyan ).

Justice Bhuyan expressed his reservations regarding the conditions of bail which would make Mr. Kejriwal unable to visit his office but since a Supreme Court bench of the same strength in the ED case had imposed these bail conditions, he did not interfere with them (¶43 J. Bhuyan).

Prepared by Osama Noor

Centre for Research and Planning, Supreme Court of India

IN RE: ALLEGED RAPE AND MURDER INCIDENT OF A TRAINEE DOCTOR IN R.G. KAR MEDICAL COLLEGE AND HOSPITAL, KOLKATA AND RELATED ISSUES V. 2024 INSC 613 (20 August 2024)

Chief Justice Dhananjaya Y. Chandrachud, Justice Jamshed B. Pardiwala, Justice Manoj Misra

Whether the lack of institutional safety measures for doctors and medical professionals in hospitals necessitates the intervention of the Supreme Court. If yes, what measures should the Court pass?

On 9 August 2024, a thirty-one year old postgraduate doctor who was on a thirty-six hour shift at RG Kar Medical College Hospital in Kolkata was murdered and allegedly raped inside the seminar room of the hospital. The incident led to widespread shock and outrage. The name and graphic images of the deceased were widely circulated on social media.

Writ petitions were filed in the Calcutta High Court for a court-monitored investigation into the murder case including into the role of the medical college principal and hospital authorities. The parents of the deceased were initially informed that it was a case of suicide, but the police subsequently registered an FIR alleging murder. The Calcutta High Court transferred the investigation to the Central Bureau of Investigation (“CBI”) after concerns were raised about the initial handling of the case by hospital authorities and state police.

On the night of 15 August 2024, a large mob vandalized the Emergency Ward at RG Kar Medical College Hospital. Subsequently, the Indian Medical Association called for nationwide twenty-four hour strike by medical service personnel (except emergency services).

The Supreme Court set-up a nine-member National Task Force to create a national protocol for the safety of doctors and medical professionals around the country. The Task Force was required to formulate effective recommendations to address concerns pertaining to safety, working conditions and well-being of medical professionals and other cognate matters. The Task Force’s action plan may be categorized under two heads (I) Preventing violence, including gender-based violence against medical professionals; and (II) Providing an enforceable national protocol for the dignified and safe working conditions for interns, residents, senior residents, doctors, nurses and all medical professionals.

The Supreme Court also ordered the CBI to submit a status report by 22 August 2024 on the progress in the investigation. The State of West Bengal was also informed to file a status report by 22 August 2024 on the progress of the investigation on the acts of vandalism which took place at the Hospital in the aftermath of the incident.

Protection and safety of medical staff who work round the clock

The Supreme Court observed that medical professionals in the performance of their duties have been unfortunate targets of various forms of violence. Hospitals and medical care facilities are open throughout the day and night. Medical professionals, doctors, nurses and paramedic staff, work round the clock. Unrestricted access to every part of healthcare institutions has made healthcare professionals susceptible to violence. Patients of relatives in anguish are quick to attribute untoward outcomes to the negligence of medical professionals. Such allegations are often followed by violence against medical professionals (¶6).

Lack of security infrastructure

The Supreme Court highlighted the lack of institutional safety standards in health care establishments. It pointed out that medical professionals who are posted for night-duties are not provided adequate resting spaces. Often, doctors rest in the patients’ room or in available public spaces (¶9(a)). Interns, residents and senior residents are made to perform thirty-six hour shifts in conditions where even basic needs of sanitation, nutrition, hygiene and rest are lacking. There is an absence of uniformity in terms of a standard national protocol (¶9(b)).

The Supreme Court also dealt with the issue of lack of security personnel in medical care units and the absence of sufficient toilets for medical personnel. Doctors and nurses who must travel to and from the hospital are not provided transport facilities by the institution (¶9(e)). The Court also stated that there is an absence of properly functioning CCTV cameras to monitor ingress and egress to the hospital and to control access to sensitive areas (¶9(f)).

Ingrained patriarchal attitudes and biases

The Supreme Court noted that women are at particular risk of sexual and non-sexual violence in various settings. Due to ingrained patriarchal attitudes and biases, relatives of patients are more likely to challenge women medical professionals. In addition to this, female medical professionals also face different forms of sexual violence at the workplace by colleagues, seniors and persons in authority (¶7).

The Supreme Court stated that the lack of institutional safety norms at medical establishments pertaining to violence including sexual violence against medical professionals is a matter of serious concern (¶7).

Equality of opportunity to every working professional

The Supreme Court held that the steps provided for in its order are not just for protecting doctors. The safety and well-being of all health providers is a matter of national interest. As more and more women join the workforce in cutting edge areas of knowledge and science, the nation has a vital stake in ensuring safe and dignified conditions of work for all (¶7).

Prepared by Deepika Maram (Intern)

Centre for Research and Planning, Supreme Court of India

Link to Judgment (PDF)

IN RE: RIGHT TO PRIVACY OF ADOLESCENTS V. 2024 INSC 614 (20 August 2024)

Justice Abhay S. Oka and Justice Ujjal Bhuyan

Whether the High Court of Calcutta was justified in using its discretionary powers under Article 226 of the Constitution read with Section 482 of Code of Criminal Procedure, 1973 (“Cr.P.C’) to set aside the appellant’s conviction for rape under the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and the Indian Penal Code (“IPC”) on the grounds that the individuals were engaged in a romantic relationship.

The mother of a fourteen-year-old girl (victim) filed a missing report on 20 May 2018. It was later found that the victim was living with the twenty-five-year-old man (accused). Despite several requests from her mother, she did not return and subsequently gave birth to a girl child.

Based on the complaint filed by the victim’s mother, the accused was convicted by a special judge under Section 6 of the POCSO Act for aggravated penetrative sexual assault resulting in the victim's pregnancy, Section 376(3) and 376(2)(n) of the IPC for rape of a minor and Sections 363 and 366 of the IPC for kidnapping and forcing a woman to marriage. The special judge sentenced the accused to twenty years of rigorous imprisonment.

The conviction was appealed to the Calcutta High Court, contending that the relationship with the minor victim was consensual and she remains under the appellant’s care to date. The High Court, on 18 October 2023, overturned the appellant’s conviction on the charges of kidnapping and enticement on the finding that the victim had left her home on her own will and there was no force or compulsion by the appellant. Given the age of the victim, the offence under Section 6 of the POCSO Act was established. However, the High Court used its discretionary powers under Article 226 of the Constitution read with Section 482 of the Cr.P.C to set aside the POCSO conviction and the conviction of rape under Section 376(3) and 376(2)(n) of the IPC. It observed that the appellant had to be released as there existed a non-exploitative consensual sexual relationship between the two individuals, and the victim was supported by the appellant.

Further, the Calcutta High Court stated that there has been an increase in consensual sex among teenagers attributed to peer pressure, the influence of social media, the easy availability of pornographic materials, and the free mixing with friends of the opposite gender. It advised adolescent girls to control their sexual urges as they would bear the responsibility for their actions.

The Supreme Court on finding the remarks of the High Court objectionable and unwarranted, took suo motu cognisance of the matter on 7 December 2023. The State Government also appealed against the acquittal by the High Court.

The Division bench (two judges) of the Supreme Court found the accused guilty of the offence of rape under Section 376(3) and 376(2)(n) of the IPC and Section 6 of the POCSO Act. However, the Supreme Court upheld the High Court’s acquittal of the accused on the charges of kidnapping and abduction under the IPC. The judgement was authored by Justice Oka.

The Supreme Court observed that consensual relationships cannot be an exception to the POCSO Act, and the High Courts cannot use their discretionary powers under Section 482 Cr.P.C to quash prosecutions in such cases where the guilt of the accused is confirmed, even if a settlement is reached between the accused and the victim.

The Supreme Court directed the State Government to constitute a committee consisting of a clinical psychologist and a social scientist to assess the victim’s situation and help her arrive at an informed decision. The Supreme Court directed the Secretaries of all States and Union Territories to ensure compliance with the POCSO Act and laws related to the welfare of minors.

Consensual sex can be no exception under POCSO Act

The Supreme Court criticised the High Court’s reliance on the concept of a “non-exploitative sexual acts” concerning “older adolescents” in the context of heinous crimes. The Supreme Court observed that neither Section 376(2)(n) of the IPC nor Section 6 of the POCSO Act recognised the idea of a “non-exploitative sexual act” nor made any exception for “older adolescents.” (¶16).

The Supreme Court clarified that having sexual relationship with a woman under eighteen years of age amounts to rape. The High Court only has to ascertain whether the offence of rape under Section 376 IPC and Section 6 POCSO Act was made out (¶19). The question of the existence of any romantic relationship with the victim is irrelevant in deciding the matter. Courts must exercise their discretionary powers under Article 226 and Section 482 Cr.P.C in adherence to the law and cannot act in defiance of it (¶19).

Misuse of powers under Section 482 of Cr.P.C. and Article 226 of the Constitution

The Supreme Court found that the High Court’s decision to set aside the conviction through its plenary powers under Section 482 Cr.P.C and Article 226 of the Constitution was an improper exercise of judicial authority (¶¶21, 23.1). The main object of the POCSO Act is to address the heinous crimes of sexual abuse and sexual exploitation of children in conformity with the United Nations Convention on the Rights of Children, 1992 (¶21). The Court noted that in serious offences where the guilt of the accused is established, courts cannot exercise their discretionary powers under section 482 of Cr.P.C to acquit the accused given the gravity of the offence (¶21). The Court observed that even if the parties came for a settlement in serious offences like rape and murder, the High Courts should not cancel the prosecution (¶23.1).

Failure of the State to fulfil obligations Under the POCSO Act and Juvenile Justice Act

The Supreme Court observed that the State failed to take due care of the victim in accordance with the law (¶25). The Court noted that the State must protect victims of serious crimes and ensure that they live a dignified and healthy life. These victims should be considered as children in need of care and protection under Section 2(14) of the Juvenile Justice Act, 2015 (“JJ Act”) which provides guidelines for their care and rehabilitation(¶¶28.2, 37).

The Child Welfare Committee (“CWC”) established under the JJ Act has to ensure the appropriate rehabilitation and restoration of such victims (¶¶28-29). The State's failure to adequately support and monitor the CWC's activities has led to a lack of proper care and protection for the victim. (¶28.1).

The judgment of the Court should be simple and precise

The Supreme Court found that the impugned judgment contained the personal opinions of the Judges as well as advice directed to the adolescents and the legislature (¶14). It emphasised that an appellate court deciding the conviction of the accused must provide clear findings with reasons on the legality and the adequacy of a sentence(¶13). The judgement should be written in simple language (¶¶13, 14). It should not contain the personal opinions of the judges or incorporate advice to the parties (¶¶14, 17). It found that the Calcutta High Court had incorrectly expressed its personal views and made irrelevant observations instead of focusing on the legal determination of the offences committed (¶¶17-19).

Prepared by Adarsh Kumar Agrahari (Intern)

Centre for Research and Planning, Supreme Court of India

MINERAL AREA DEVELOPMENT AUTHORITY ETC. V. M/S STEEL AUTHORITY OF INDIA .2024 INSC 607 (14 August 2024)

Justices: Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Hrishikesh Roy, Justice Abhay S. Oka, Justice B. V. Nagarathna, Justice Jamshed B. Pardiwala, Justice Manoj Misra, Justice Ujjal Bhuyan, Justice Satish C. Sharma, Justice Augustine G. Masih

Should the decision in Mineral Area Development Authority v. M/S Steel Authority of India (2024 INSC 554 ) (“Mines and Minerals ”) apply prospectively (apply only to future transactions)?

On 25 July 2024, a Nine-Judge Bench of the Supreme Court of India delivered its judgment in Mines and Minerals. The Court, by an 8:1 majority held: (i) that royalty imposed under the Mines and Minerals (Development and Regulation) Act, 1957 (“MMDR Act”) on mining leases is not a form of tax; (ii) States have power under the Entries 49 and 50 of the State List of the Seventh Schedule of the Constitution of India to levy taxes on mineral rights and mineral-bearing lands; and (iii) the MMDR Act in its current form does not limit the taxing power of the States. In doing so, the majority overruled a Seven-Judge Bench decision in India Cement Ltd. v. State of Tamil Nadu (1989 INSC 322) (“India Cement”) which had held that royalty under the MMDR Act is a tax, and States cannot impose taxes on mineral rights because the subject-matter is covered by the Union Government’s MMDR Act.

Once the judgment in Mines and Minerals was delivered, the assessees (corporations who are liable to pay the taxes imposed by various states) argued that the Mines and Minerals decision should only apply prospectively i.e., they should only be required to pay the State taxes on mineral rights and mineral bearing lands from the date of the judgment (25 July 2024).

The Supreme Court held that the Mines and Minerals decision would apply retrospectively, and the States can recover past tax dues. However, no dues could be recovered for the period before 1 April 2005. The judgment of the Court was authored by Chief Justice Chandrachud. Since Justice Nagrathna had already delivered a dissenting judgment in Mines and Minerals where she held that royalty is a tax and MMDR Act limits the taxing powers of States, she did not author an opinion.

The Supreme Court observed that the doctrine of prospective overruling (when a declaration of law by the Supreme Court is made applicable on and from the date of the judgment) has been previously recognised and applied by the Supreme Court. The Court has relied on prospective overruling where the Supreme Court’s new declaration of law, by overruling a judgment, results in the invalidation of legislation that would have been valid under the old declaration of law (the overruled judgment). This is done primarily to protect the rights and obligations that have crystallised under the old declaration of law (¶14). For example, if the Supreme Court overruled a judgment that resulted in a taxation statute being struck down with retrospective effect, the State would be liable to refund all amounts collected under the now invalid legislation (¶14). Therefore, in such cases the Court may make the decision apply prospectively. However, where the Court upholds taxation statutes, as in the case of Mines and Minerals, the Court does not make such decisions apply prospectively (¶15).

The Supreme Court observed that prior to Mines and Minerals there had been legal uncertainty due to the conflicting in India Cements and State of West Bengal v. Kesoram Industries Ltd. (2004 INSC 34) (“Kesoram Industries”). The former judgment had denied States’ power to tax mineral bearing lands while the latter had upheld it. Therefore, if Mines and Minerals was to be given a prospective application, then the validity of all State laws taxing mineral bearing lands enacted prior to Mines and Minerals will have to be tested (¶17).

Further, the Supreme Court observed that prior to the decision in Mines and Minerals, the decision in India Cements had held that States do not have a right to tax mineral bearing lands. Thus, if the Mines and Minerals decision was given prospective effect, the validity of State laws taxing mineral bearing lands would have to be tested against the law laid down in India Cements, and thus may be invalidated (¶17). This would result in laws enacted by elected legislatures exercising the sovereign power of taxation being struck down based on a position of law that had since been overruled in Mines and Minerals (¶19).

No recovery of the tax dues prior to 1 April 2005

The Supreme Court regognised the fact that many states enacted taxing legislations based on the decision in Kesoram Industries which was delivered on 1 April 2005. Therefore, to reconcile the financial interests of the States and the assessees, the Court prevented the States from demanding tax dues relating to mineral bearing lands before Kesoram Industries i.e., before 1 April 2005 (¶20). Prior to Kesoram Industries, the position of law in India Cement prevented States from taxing mineral bearing lands.

The Supreme Court considered the long pendency of the case before the Supreme Court and therefore waived the requirement that the assessees pay interests on their dues (which were in the thousands of crores) prior to the date of the judgement in Mines and Minerals (¶22). The Court also ruled that the payment of the dues could be made in instalments over a period of twelve years starting from 1 April 2026 (¶25b).

Prepared by Osama Noor

Centre for Research and Planning, Supreme Court of India

MANISH SISODIA V. DIRECTORATE OF ENFORCEMENT2024 INSC 595 (9 August 2024)

Justice Bhushan R Gavai and Justice Kalpathy V Viswanathan.

Whether the Appellant, Mr. Manish Sisodia, is entitled to bail under Section 45 of the Prevention of Money Laundering Act, 2002 (“PMLA”) due to his prolonged incarceration and the delay in the conduct of his trial.

The Appellant (Manish Sisodia, former Deputy Chief Minister and Excise Minister of Delhi) was arrested by the Central Bureau of Investigation (“CBI”) and the Enforcement Directorate (“ED”) on 26 February 2023 and 9 March 2023 respectively, in connection with an investigation into the Delhi Liquor Excise Policy 2021-22 (“Excise Policy”).

The CBI filed two chargesheets which charged the Appellant for offences under Sections 201 (disappearing evidence) and 420 (cheating) of the Indian Penal Code, 1860 (“IPC”) and Sections 7, 7A, 8 and 12 (taking and offering a bribe) of the Prevention of Corruption Act, 1988 (“PCA”). The ED filed a criminal complaint accusing the Appellant of money laundering under the PMLA.

The crux of the allegations was that the Appellant had abused his authority as a public servant by formulating a new Excise Policy for Delhi which favoured certain wholesale distributors in return for bribes and kickbacks to the Appellant and his associates. It was contended by the CBI and ED that these bribes amounted to around Rupees One Hundred Crores, which was laundered and used by the Appellant to support his political party.

The Delhi High Court rejected the Appellant’s bail application. On appeal, the Supreme Court on 30 October 2023 rejected the bail application on merits but granted him the liberty to file a second bail application before the trial court if the trial could not be concluded within six to eight months.

The Appellant filed a second bail application before the trial court which was rejected. The Delhi High Court also refused to grant the Appellant bail on 21 May 2024. Aggrieved by this order, the Appellant approached the Supreme Court. On 4 June 2024, the Supreme Court noted the Solicitor General’s submission that the eight-month period set by the Court in October 2023 had not elapsed and allowed the Appellant to reapply for bail after the charge sheet was filed. After the charge sheet was filed, the Appellant again approached the Supreme Court for bail. The ED objected to the Appellant’s bail application, arguing that the Appellant should apply for bail to the trial court afresh.

The Division Bench (two judges) of the Supreme Court allowed the appeal and directed the Appellant to be released on bail. The bail was granted subject to the following conditions: (i) furnishing bail bonds for a sum of Rs. 10,00,000/- with two sureties of the like amount; (ii) surrendering passport with the Special Court; (iii) regular reporting to investigation officers; and (iv) the Appellant must not attempt to influence the witnesses or tamper with the evidence. The judgement was authored by Justice Gavai.

The second bail application before the Supreme Court is maintainable

The Supreme Court observed that in its order of 30 October 2024, it had permitted the Appellant to file a fresh bail application if there was a prolonged delay in the conduct of his trial (¶29). The Court rejected the prosecution’s argument that the Appellant’s fresh bail application should be before the trial court. The Court held that relegating the Appellant back to the trial court would be unjust and is not a strict procedural requirement as the trial court has already heard and decided the Appellant’s case (¶¶34-35). The Court emphasised that in matters pertaining to the right to life and liberty, a person cannot be made to run from pillar to post (¶33). Thus, the Court found the Appellant did not have to approach the trial court and his bail plea could be decided by the Supreme Court now that the charge sheet had been filed (¶35).

The Appellant is entitled to bail under Section 45 of the PMLA

The Supreme Court held that every person charged with an offence was entitled to a speedy trial and the Appellant had been denied a speedy trial (¶¶37, 49).

The Supreme Court did not disagree with the decisions of the special judge and the Delhi High Court on the merits of the criminal case (¶44). But the Supreme Court held that the lower courts had ignored its observations that a delay in the trial and long incarceration should also be factored into any bail analysis under Section 439 of the Cr.P.C. and Section 45 of the PMLA (¶¶37, 44).

The Supreme Court noted that the trial was yet to commence and involves the examination of 493 witnesses and thousands of pages of documentary evidence, and was thus far from concluding in the near future (¶54). As the trial had proceeded in a very slow manner, the Appellant was entitled to bail (¶43). The Court also observed that bail should not be withheld as a punishment (¶53).

Prepared by Prashant Sharma (Intern)

Centre for Research and Planning, Supreme Court of India

GOVERNMENT OF NCT OF DELHI V. OFFICE OF LIEUTENANT GOVERNOR OF DELHI2024 INSC 578 (5 August 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Pamidighantam S. Narasimha, Justice Jamshed B. Pardiwala

Whether the Lieutenant Governor (“LG”) of the National Capital Territory of Delhi (“NCTD”) is bound by the aid and advice of the elected Government of National Capital Territory of Delhi (“Delhi Government”) when nominating members to the Delhi Municipal Corporation under the Delhi Municipal Corporation Act, 1957 (“DMC Act”).

The Delhi Municipal Corporation consists of two hundred and sixty councillors. Two hundred and fifty councillors are directly elected from the wards. However, Section 3(3)(b)(i) of the DMC Act states that the LG of Delhi shall nominate ten persons with special knowledge in municipal administration to the DMC.

Article 239AA(4) of the Constitution states that the Delhi Government, through its Council of Ministers, will aid and advise the LG on matters where the Legislative Assembly of Delhi has the power to make laws. In 2018, a Constitution Bench (Five judges) of the Supreme Court in State (NCT of Delhi) v. Union of India (2018 INSC 577) (“2018 NCT of Delhi”) ruled that the LG is bound by the aid and advice of the Delhi Government through its Council of Ministers. However, Article 239AA(4) also provides an exception to this rule where the LG is, by or under any law, required to act in his discretion.

On 4 December 2022, the elections of the Delhi Municipal Corporation were held and candidates of the Aam Aadmi Party won in 134 out of 250 wards while candidates of the Bhartiya Janta Party won in 104 wards. On 3 January 2023, the LG nominated ten persons to the Municipal Corporation.

The Delhi Government filed a Writ Petition to the Supreme Court under Article 32 of the Constitution challenging the legality of the nominations and sought a direction that the LG only nominate members selected by the Delhi Government.

The Supreme Court held that the LG is not bound by the aid and advice of the Council of Ministers of the Delhi Government when nominating members to the MCD under Section 3(3)(b)(i) of the MCD Act. The judgment of the Court was authored by Justice Narasimha.

Consequences of Parliament enacting DMC Act

The Supreme Court referred to the Constitution Bench (Five Judge) decisions in the 2018 NCT of Delhi and Government of NCT of Delhi v. Union of India (2023 INSC 517). In those cases, the Supreme Court had held that ordinarily the Delhi Government and the Delhi Legislative Assembly have executive and legislative powers on all matters in List II (State List) and List III (Concurrent List), except for Entries 1, 2 and 18 which are reserved for Parliament due to the fact that Delhi is the national capital. However, if Parliament makes a law in relation to any subject in List II (State list) or List III (Concurrent list), the executive and legislative power of the Delhi Government shall then be limited by the law enacted by Parliament (¶¶15, 22). The Supreme Court found that the DMC Act is a law made by the Parliament and relates to Entry 5 of List II (State List) which deals with the local government i.e. municipal corporation (¶¶18-20). Thus, once Parliament has enacted this law, the power of the Delhi Government concerning the DMC is restricted to the extent set out in the DMC Act.

LG not bound by Aid and Advice of the Council of Ministers when nominating individuals under DMC Act

The Supreme Court held that in Delhi, the position of the LG under Article 239AA(4) of the Constitution is different from that of a Governor in a State under Article 163 of the Constitution. The Governor of a State must act on the aid and advice of the Council of Ministers of the elected State Government except where the Constitution specifically requires the Governor to exercise discretion. However, under Article 239AA(4) the LG can act discretionarily when required by any law (¶21).

The Supreme Court distinguished the nature of the powers of the LG and the Delhi Government under the DMC Act. It observed that the LG of Delhi had been given powers to nominate experts and constitute the finance commission, while the Delhi Government had been given powers to make bye laws and conduct recruitment to the Municipal Corporation (¶¶32-33). Therefore, it ruled that the DMC Act is a law made by Parliament which requires the LG to exercise the power of nomination as a statutory duty and not as part of the LG’s powers as executive head of the NCTD (¶39). Further, the DMC Act satisfies the exception provided under Article 239AA(4) which states that where a law requires the LG to act in his discretion, he is not bound by the aid and advice of the Delhi Government and its Council of Ministers (¶37).

Prepared by Osama Noor

Centre for Research and Planning, Supreme Court of India

THE STATE OF PUNJAB V. DAVINDER SINGH2024 INSC 562 (1 August 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Bhushan R. Gavai, Justice Vikram Nath, Justice Bela M. Trivedi, Justice Pankaj Mithal, Justice Manoj Misra, Justice Satish C. Sharma

(i) Whether the sub-classification of Scheduled Castes (“SCs”) for providing reservation is allowed under the Constitution of India. (ii) Whether the states have the power under Articles 15 and 16 of the Constitution to sub-classify SCs.

Article 341(1) of the Constitution of India grants the President the power to notify the castes, races or tribes which shall be deemed to be SCs in a State or a Union Territory. Article 341(2) states that Parliament can include or exclude any caste, race, or tribe from the list of SCs in the President’s notification. Various laws and schemes provide reservations in public employment to individuals from SCs.

Section 4(5) of the Punjab Act provided that fifty percent of the vacancies of the SC reservation shall be offered on first preference to Balmikis and Mazhabi Sikhs amongst the SCs. On 29 March 2010, the High Court of Punjab declared Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006 (“Punjab Act”) unconstitutional by relying on EV Chinnaiah v. State of Andhra Pradesh (2004 INSC 644) (“Chinnaiah”).

In Chinnaiah, a Constitution Bench of the Supreme Court (Five Judges) held that sub-classification amongst SCs by states is unconstitutional because: (i) SCs constitute a homogeneous class; (ii) sub-classifying them would amount to ‘tinkering’ with the Presidential list under Article 341 of the Constitution, which only Parliament can do; and (iii) the rationale of the Nine-Judge Bench in Indra Sawhney v. Union of India (1996 INSC 1273) (“Indra Sawhney”), which permitted sub-classification of the Other Backward Classes (“OBCs”), does not apply to SCs.

On 20 August 2014, a Three-Judge Bench of the Supreme Court adjudicating the validity of the Punjab Act referred the correctness of Chinnaiah for consideration by a larger Bench. On 27 August 2020, in the State of Punjab v. Davinder Singh (2020 INSC 512) a Constitution Bench (Five Judges) held that the judgment in Chinnaiah requires reconsideration by a larger Bench of Seven-Judges. Several appeals which challenged similar sub-classifications made in reservation policies of the States of Haryana and Tamil Nadu were also tagged with the challenge to the Punjab Act matter. A Seven-Judges Bench was constituted.

The Seven-Judge Bench, by a 6:1 majority, held that it was permissible for states to sub-classify SCs when providing reservations. Chief Justice Chandrachud authored a plurality opinion for himself and Justice Misra. Justice Gavai, Justice Mittal, Justice Nath and Justice Sharma each authored separate concurring opinions. Justice Trivedi wrote a dissenting judgment which found sub-classification to be impermissible under the Constitution.

Sub-classification permitted by the Indra Sawhney decision

The majority held that the judgment of the Nine-Judge Bench in Indra Sawhney did not create any bar on sub-classification of SCs because sub-classification of SCs was not an issue in that case (¶¶98-100 J. Chandrachud, ¶¶248-249 J. Gavai, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). Further, the majority ruled that Indra Sawhney in fact utilised the principle of sub-classification (in the context of OBCs) to ensure meaningful and substantive equality was achieved where the various constituents within a caste group were not comparable (¶102 J. Chandrachud, ¶¶253, 260 J. Gavai, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).

Justice Trivedi’s dissenting opinion found that the Court in Indra Sawhney specifically excluded SCs from the scope of its judgment, and thus the decision could not be interpreted as permitting sub-classification (¶¶70-71 J. Trivedi).

SCs under Article 341 do not constitute a homogeneous class

The majority traced the observations in Chinnaiah that SCs are a homogenous class to an earlier decision in State of Kerala v. N. M. Thomas (1975 INSC 224) (“N.M. Thomas”). The majority observed that N.M. Thomas merely observed that SCs once notified by the President cumulatively constituted a distinct “class” (vis-a-vis the general category individuals). However, N.M. Thomas did not say that SCs are a homogenous class which can not be further sub-classified (¶114 J. Chandrachud, ¶261 J. Gavai, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).

The majority observed that Article 341 states that once a caste is notified as an SC by the President, such a caste shall be “deemed” to be an SC. (¶110 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). The inclusion of a caste within the SC category is only to demarcate them from other castes which are not included in the category (¶112 J. Chandrachud). This inclusion does not automatically lead to the formation of a uniform and internally homogenous class which cannot be further classified (¶112 J. Chandrachud, ¶261 J. Gavai, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). Inclusion does not mean the existence or non-existence of internal differences among the SCs (¶¶110, 112 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). It only means that each of the groups that are included in the list will receive the benefits that the Constitution provides to the SCs as a class (¶112 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).

State legislature has the power of sub-classification under Article 15 and 16

The majority observed that Article 341(2) grants Parliament the power to include or exclude groups from the President’s list. This is the power that has been reserved for Parliament and denied to the States. A State Legislature cannot add or remove groups from the President’s List of SCs. However, sub-classification within the SCs for reservation does not include or exclude any caste or group from the President’s List of SCs under Article 341 (¶123 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). Sub-classification does not lead to exclusion of any caste which is already in the President’s List. Therefore, as long as a State that does not include communities not in the President’s list of SCs or exclude communities that the President has designated as SCs, the State does not violate Article 341(2) when sub-classifying (¶188 J. Chandrachud, ¶¶258-260 J. Gavai, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).

The majority held that historical evidence confirms that inequality exists within the SCs. Therefore, there is an intelligible way to differentiate between various castes within the SCs (¶142 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). The majority held that if the SCs are not similarly situated then states can not be prevented under Articles 15, 16 and 341 from applying the principle of sub-classification amongst the SCs.

Justice Trivedi’s dissenting opinion ruled that although various castes had experienced differing levels of historical discrimination, once they were included in the Presidential List under Article 341, they became a homogeneous group (¶79(v) J. Trivedi). As a result, any form of sub-classification within this group was not permissible (¶79(vi) J. Trivedi). She also concluded that the states lacked the legislative authority to create such sub-classifications, as neither the State List nor the Concurrent List of the Seventh Schedule, which lays out the State’s lawmaking powers granted them the power to do so (¶79(vi) J. Trivedi).

Criteria for the sub classification

The majority found that the purpose of the reservation clause in the Article 16(4) of the Constitution is to remedy the inadequate representation in public services of certain “classes” which have been inadequately represented because of their backwardness. The question is not whether certain sections of society are a numerical minority in the state administration, but whether groups are inadequately represented because of their backwardness. Further, meaningful representation would not be fulfilled by SCs occupying numerous lower grade posts, but must be assessed across all posts, including senior posts (¶¶166-172 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).

The majority held that the states can identify inter-se backwardness amongst SCs through empirical data based on inadequacy of effective representation. However, it must be proved that inadequacy of effective representation of a caste is because of its social backwardness. The State must prove that the group/caste carved out from the larger group of SCs is more disadvantaged and inadequately represented (¶¶175-176 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath). The decision of the state for sub-classification would be subject to judicial review (¶190 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).

The majority cautioned the states that they can not adopt a policy of reservation which would allocate seats separately for each caste. It reasoned that this is because the social backwardness suffered by each caste is not so distinct to give reserved seats to each caste separately. It ruled that two casts will have to be grouped together if their social backwardness is comparable (¶195 J. Chandrachud, ¶9 J. Mithal, ¶1 J. Sharma, ¶1 J. Nath).

Applicability of creamy layer principle to the SCs

A majority of the Court held that certain castes have been reaping benefits of reservation more than others. Therefore, states must evolve a policy to exclude the creamy layer of the SC/ST groups from the benefit of reservation. It also held that the creamy layer principle also applies to SCs. However, the criteria should be different from that which is used for the OBC reservation (¶¶294-295 J. Gavai, ¶83 J. Mithal, ¶2 J. Nath, ¶2 J. Sharma).

However, Justice Bela Trivedi in her dissenting opinion stated that the SC/ST groups are already categorized as a 'backward class of citizens’ by the President’s notification. Consequently, the concept of excluding the creamy layer cannot be applied to them (¶¶70-71 J. Trivedi).

Dissenting: Current Referral lacks sufficient reasoning

Prepared by Shambhavi Gupta & Osama Noor

Centre for Research and Planning, Supreme Court of India

GAURAV KUMAR V. UNION OF INDIA2024 INSC 558 (30 July 2024)

Chief Justice Dr. Dhananjaya Y. Chandrachud and Justice Jamshed B. Pardiwala

(i) Whether the State Bar Councils (“SBCs”) are entitled to charge enrolment fees beyond the fee prescribed by Section 24(1)(f) of the Advocates Act, 1961, when admitting law graduates to the State rolls. (ii) Whether payment of other miscellaneous fees can be made a precondition for enrolment.

The Advocates Act, 1961 (“Advocates Act”) outlines the process for admitting law graduates onto the state advocate rolls. Being enrolled with the state bar is a prerequisite to practise in Court. The SBCs collect enrolment fees from law graduates seeking to practise law in any court across India. Additionally, the Act specifies the roles and responsibilities of the Bar Council of India (“BCI”) and SBCs.

The Petitioner filed a writ petition in the Supreme Court, under Article 32 of the Constitution, challenging the high enrolment fees charged by SBCs. According to Section 24(1)(f) of the Advocates Act, the prescribed enrolment fees to be admitted to the State Roll is six hundred rupees to the SBC and one hundred and fifty rupees to the BCI, along with stamp duty. For Scheduled Caste or Scheduled Tribe candidates, the fees are set at one hundred rupees to the SBC and twenty-five rupees to the BCI.

The Petitioner contended that SBCs charge high enrolment fees ranging from Rs. 10,000 to Rs. 50,000 from law graduates, in violation of the prescribed fees provided under the Advocates Act. Additionally, these fees vary significantly across different states. The SBCs justified these additional charges as necessary to cover miscellaneous expenses, including contributions to library funds, administrative fees, training fees, identity card fees, welfare funds, processing fees, and certificate fees.

High enrolment fees violate the right to equality under Article 14 of the Constitution of India

The Supreme Court observed that the burden of payment of enrolment fees and other miscellaneous fees imposed by the SBCs falls equally on all persons seeking enrolment. However, it unequally impacts individuals with limited economic resources. Thus, the high fees perpetuates structural discrimination against persons from marginalised and economically weaker sections of the society (¶84). Therefore, levying high fees and additional payment requirements violates individuals’ right to equality (¶90).

The Supreme Court also observed that the purpose of the Advocates Act is to create an inclusive Bar. The BCI and SBCs are entrusted with the responsibility to ensure greater representation of persons from marginalised communities in the legal profession ((¶91).

Charges other than the enrolment fee cannot be a valid pre-condition

The Supreme Court held that admission on the roll of advocates is a prerequisite to practise law in India (¶79). The Advocates Act provides comprehensive legislation for the collection of fees paid by advocates for their enrolment in the state rolls to practise law in their respective states (¶75). Therefore, the SBCs and BCI cannot demand payment of any miscellaneous fees other than the stipulated enrolment fees set out in Section 24(1)(f) of the Advocates Act as a precondition to enrolment (¶79).

Right to practise profession, trade and occupation under Article 19(1)(g) of the Constitution of India

The Supreme Court held that the right to practise law is not only a statutory right but also a fundamental right under Article 19(1)(g) of the Constitution of India (¶95). Any restriction on fundamental rights beyond reasonable restriction under Article 19(6) of the Constitution of India is unconstitutional (¶95).

In the present case, the Court observed that firstly, the power of the authority to impose restrictions on profession, trade and occupation under Article 19(2) of the Constitution is not absolute and must be exercised in a reasonable manner (¶101). Secondly, any fees or licence levied by the authorities must be levied on the basis of the authority of law (¶101). Thirdly, delegated legislation which is contrary to or beyond the scope of the legislative policy laid down by the parent legislation places an unreasonable restriction in violation of Article 19(1)(g) of the Constitution (¶101).

The Court concluded that the charging of such excessive enrolment fees is without any authority of law, as it is not sanctioned by the Advocates Act. In light of the explicit legislative policy under Section 24(1)(f) of the Advocates Act, there is no justifiable reason for the SBCs to charge such exorbitant fees. SBCs cannot be granted unrestricted authority to charge such fees. Furthermore, such an excessive fee imposes significant financial hardships on young law graduates, particularly those from marginalised communities, thereby violating their rights under Article 19(1)(g) of the Constitution (¶102).

Prepared by Prashant Sharma (Intern)

Centre for Research and Planning, Supreme Court of India

Judgment Summaries are prepared to help promote a better understanding of the decisions of the Supreme Court of India. They do not form part of the Court's?decision or reasons and are not for use in legal proceedings.

MINERAL AREA DEVELOPMENT AUTHORITY ETC. V. M/S STEEL AUTHORITY OF INDIA .2024 INSC 554 (25 July 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Hrishikesh Roy, Justice Abhay S. Oka, Justice B. V. Nagarathna, Justice Jamshed B. Pardiwala, Justice Manoj Misra, Justice Ujjal Bhuyan, Justice Satish C. Sharma, Justice Augustine G. Masih

(i) What is the scope of Entry 50 of the State List of the Seventh Schedule (the power of states to tax mineral rights subject to Parliamentary legislation)? (ii) Under Entry 54 of the Union List, what limitations can Parliament impose on the power of States to tax mining rights and mineral bearing lands? (iii) Whether charging royalty on mining leases is a form of tax. (iv) Whether the Mines and Minerals (Development and Regulation) Act, 1957 (“MMDR Act”) limits the states’ power to tax mining rights and mineral bearing lands. (iv) Whether a state’s power to tax land under Entry 49 includes the power to tax mineral bearing land, and if yes, whether mineral produce could be used as a measure of tax.

List I (Union List) of the Seventh Schedule of the Constitution outlines the subjects on which the Union Government has the power to legislate, while List II (State List) of the Seventh Schedule provides the subjects on which the states are empowered to legislate. Both states, under Entry 23 of List II, and the Union Government, under Entry 54 of List I, have the power to regulate mines and mineral development. However, the states’ power to regulate under Entry 23 is subject to Entry 54 of the Union List, to the extent that Parliament has passed a law stating that the Union Government’s regulation is in the public interest. Separately, Entry 50 of List II grants states the power to tax mineral rights subject to any limitations imposed by Parliament.

Section 9 of the MMDR Act states that the holder of a mining lease shall pay royalty in respect of any mineral removed or consumed from the leased area.

In an order passed by the Supreme Court on 30 March 2011, the Court found a divergence of views between India Cement Ltd. v. State of Tamil Nadu (1989 INSC 322) (“India Cement”) and State of West Bengal v. Kesoram Industries Ltd. (2004 INSC 34) (“Kesoram Industries”). The Seven Judge Bench in India Cement held that the royalty charged on mining leases is a tax and state legislatures lack competence to levy taxes on mineral rights because mineral rights are covered by the MMDR Act (a legislation by Parliament under Entry 54). Later in Kesoram Industries, a Constitution Bench (five judges) held that the decision in India Cement was based on an inadvertent typographical error and stated that royalty is not a tax.

After the decision in Kesoram Industries, several states imposed taxes on mineral bearing lands. These laws were challenged before various High Courts on the ground that states lack the legislative competence to tax mining and mineral bearing lands, and such laws were in violation of India Cement. In one such challenge, the Patna High Court struck down the Bihar Coal Mining Area Development Authority (Amendment) Act 1992 and the Bihar Mineral Area Development Authority (Land Use Tax) Rules 1994. This decision of the High Court of Patna was challenged before the Supreme Court, which constituted a Nine-Judge Bench to resolve the questions surrounding the states’ power to tax mines and minerals, and the correctness of Kesoram Industries.

The Nine Judge Bench, by a 8:1 majority, held that royalty on mining leases can not be considered as a tax. The majority also ruled that states’ have the power to tax mining rights and mineral bearing lands under Entry 50 of List II and this power is not limited by the MMDR Act. However, Parliament has the power under Entry 54 of the Union List to limit the taxing power of the states. Chief Justice Chandrachud authored the majority judgment. Justice Nagrathna wrote a dissenting judgment which found that royalty is a form of tax, and the MMDR Act limits the taxing power of the states.

The majority held that royalty is a payment which flows from a statutory agreement (a mining lease) between the lessor and the lessee. It signifies payment in return for the right to extract the minerals and is generally determined on the basis of the quantity of the minerals removed (¶98). In contrast, taxation is the compulsory exaction of money by a public authority to fund public expenditure. A tax is imposed without the consent of the taxpayer, and its demand is enforceable without reference to any special benefit granted to the taxpayer (¶104). The majority therefore held that royalty under Section 9 of the MMDR Act does not fulfil the characteristics of tax (¶¶128,130).

Justice Nagrathna, in her dissenting opinion, referred to the test for what constitutes a tax in Govind Saran Ganga Saran v. Commissioner of Sales Tax, (1985 INSC 107). The case sets out four components of a tax: (i) the character of imposition (ii) a clear indication of the person on whom the levy is imposed (iii) the rate at which the tax is imposed (iv) the value to which the rate is applied for computing the tax liability. She found that royalties paid under Section 9 of the MMDR Act satisfied this test, and Section 9 must therefore be understood as a taxation provision. She ruled that royalty on mining leases under Section 9 is therefore in the nature of a tax (¶10.10)

Justice Nagrathna in her dissent also held that Kesoram Industries was wrongly decided because it’s re-interpretation of the law was premised on a perceived “typographical error” in paragraph 34 of India Cement rather than by reference to the overall reasoning of the Seven-Judge Bench (¶¶23.11-23.12).

Power to tax mineral rights rests with states subject to Parliamentary limitations

The majority relied on the case of M. P. V. Sundararamier v. The State Of Andhra Pradesh (1958 INSC 17) (“Sundararamier"), which stated that in the Seventh Schedule, the power to tax is listed separately from the general power to regulate (¶¶192, 205). Entry 50 of List II expressly grants states the power to tax mineral rights. In contrast, the Union Government, under Entry 54 of List I, is only granted the general power to regulate (not tax) mines and mineral development (¶197). Thus, the power to tax mineral rights lies with the states. However, because the states’ power to tax under Entry 50 of List II is subject to Parliament’s power to regulate under Entry 54 of List I, Parliament can pass laws to ensure that the taxation of mineral rights does not adversely impact mineral development (¶197).

Justice Nagrathna in her dissenting opinion held that Entry 50 of the State List is unique and an exception to Sundararamier, because that case did not consider the scope, ambit, and implications of the rule on Entry 54 of List I and Entry 50 of List II (¶41). Therefore, Justice Nagarathna held that Parliament can, on the strength of Entry 54 of List I read with Section 2 of the MMDR Act (which states that Union has taken control of the regulation of mines and mineral development in the public interest) impose any limitation on the power of the states to tax mineral rights under Entry 50 of List II (¶41).

Nature of limitation which Parliament can impose

The majority found that the Parliament can regulate the taxation powers of states to ensure mineral development. This is because the states’ power to tax under Entry 50 of List II had clearly been made subject to Parliament’s power to regulate for mineral development. This may also include a prohibition on state taxation. Thus, the majority found that Parliament can determine whether and how the taxing power of the states over mineral rights should be limited in order to ensure that it does not impede mineral development.(¶211)

Justice Nagrathna agreed with the majority that “any limitations” under Entry 50 of the State List is wide enough to include the imposition of restriction as well as a prohibition by Parliament by law (¶41).

MMDR Act does not limit the taxing power of the states

The majority held that a plain reading of Entry 50 of List II makes it clear that the taxing power of the states is subject to “any limitations” imposed by Parliamentary legislation and not the mere existence of a “law relating to mineral development”(¶222). The majority held that the MMDR Act does not contain any provision limiting the taxing powers of the states (¶¶224-227).

Justice Nagrathna in her dissenting opinion held that royalty under Section 9 of the MMDR Act met all the parameters of a tax and hence the provisions regarding collection of royalty under the MMDR Act act as a limitation on the states’ power to tax under Entry 50 of the State List (¶26.7).

Mineral produce could be used as a measure of tax

The majority ruled that the power of states to tax land under Entry 49 of List II includes the power to tax mineral bearing lands, and that mineral value or mineral produce could be used as a measure of the tax on land under Entry 49 of State List (¶341). The majority observed that the fact that the State legislature uses mineral produce or royalty as a measure of tax does not overlap with the states’ power under Entry 50 of the State List to tax mineral rights (¶341).

Justice Nagrathna in her dissenting opinion found that the word “lands” under Entry 49 of the State List cannot include mineral bearing land (¶33). This is because she had already held that Parliament had the right to tax mines and minerals under Entry 54 and was doing so under the MMDR Act. Thus, granting state legislatures the power to tax mineral bearing lands would result in “double taxation” by two different legislatures (¶34).

Prepared by Osama Noor

Centre for Research and Planning, Supreme Court of India

GENE CAMPAIGN . V. UNION OF INDIA2024 INSC 545 (23 July 2024)

Justices: Justice B. V. Nagarathna and Justice Sanjay Karol

(i) Whether the decision of the Union Government dated 25 October 2022 granting conditional approval for the environmental release of genetically modified Dhara Mustard Hybrid-11 (“DMH-11”) is in accordance with law. (ii) What specific guidelines should the Supreme Court lay down to ensure the safety of the approval process of hybrid transgenic mustard and other genetically modified (“GM”) crops in the future?

The NGO Gene Campaign filed a petition under Article 32 before the Supreme Court raising concerns regarding the use of GM technology in India. In Gene Union’s submissions, GM technology was being utilised without adequate safeguards and regulatory oversight. Gene Union contended that the Manufacture, Use, Import, Export and Storage of Hazardous Microorganisms, Genetically Engineered Organisms or Cells Rules, 1989 (“Genetically Engineered Organisms Rules”) framed under the Environment (Protection) Act, 1986 are inadequate to regulate GM crops, not in conformity with the right to health and clean environment under Article 21 of the Constitution, and violate India’s international obligations under the 1992 Convention on Biological Diversity (“CBD”) and the 2000 Cartagena Protocol on Biosafety (“CPB”).

The Supreme Court, by its order dated 1 May 2006, directed that any field trials concerning GM organisms could be conducted only with the approval of the Genetic Engineering Appraisal Committee (“GEAC”). Further, by its order dated 10 May 2012, the Court constituted a Technical Expert Committee (“TEC”) which found herbicide resistant crops unsuitable for Indian agriculture because of the risks posed by such crops to the biodiversity and the sustainability of agriculture. The majority of the TEC recommended a prohibition on such crops and recommended the GEAC to constitute subcommittees composed of experts from various fields of science such as health, agro-economics etc.

On 15 September 2015, the Center for Genetic Manipulation of Crop Plants (“CGMCP”) submitted an application to the GEAC seeking approval for the environmental release of GM mustard hybrid DMH-11 along with a biosafety dossier. The environmental release would enable the cultivation of GM crops in open fields beyond greenhouse conditions for seed production and testing.

Thereafter, representations were made on behalf of CGMCP and the Department of Biotechnology to the (“MoEF&CC”) seeking environmental release of DMH-11 mustard. On 25 August 2022, during the 146th GEAC meeting, the CGMCP made a detailed presentation on its proposal for environmental release of DMH-11. The GEAC recommended constituting an expert committee to examine the impact of transgenic mustard on honeybees and other pollinators.

Based on the report of the Expert Committee, the GEAC, in its 147th meeting on 18 October 2022, recommended the environmental release of DMH-11, which was accepted by the Union Government on 25 October 2022. The approval was conditional with certain safeguards including: the GEAC must establish a post release monitoring committee of experts to make regular visits to the cultivation sites; and CGMCP should provide the GEAC with detailed testing procedure and all seeds of DMH-11 and its hybrids should be appropriately labelled.

The approval for the environmental release of DMH-11 mustard was challenged as violative of established environmental principles and the fundamental rights of citizens under Article 14,19 and 21 of the Constitution.

The Division Bench (two judges) of the Supreme Court delivered a split verdict and the case was directed to be placed before a larger bench for further consideration. The Court directed the Union Government frame a National Policy on GM crops in consultation with all stakeholders including representatives from State Governments. Two separate judgments were authored by Justice Nagarathna and Justice Karol.

Justice Nagarathna held that the approval granted by the Union Government for environmental release of transgenic mustard DMH-11 should be invalidated, as there was no consideration of the adverse effects of the transgenic crops on human, animal, and plant health. She directed the GEAC to submit a report on whether DMH-11 mustard is a herbicide resistant crop in consultation with all stakeholders, and to make the report public. She further directed the Union Government to ensure that the composition of the GEAC is suitably reformed in accordance with the TEC and Parliamentary Standing Committee reports.

Justice Karol held that the question of ban on herbicide resistant crops is a matter of public policy and cannot be invalidated in view of precautionary principle. (This principle stipulates that in case of scientific uncertainty, appropriate actions must be taken to prevent irreversible harm to the environment.) He directed that field trials of DMH-11 shall continue strictly in accordance with the imposed safeguards. He further directed GEAC to conduct independent studies on GM organisms and upload it in its website in a timely manner. The GEAC should consider all environmental factors before granting future approvals and should endeavour to establish specifically designated farms for field testing in collaboration with the Union Government.

Procedural abnormalities in the approval of DMH-11

Justice Nagarathna held that the approval process for DMH-11 was flawed due to the lack of consultation with the states where mustard is grown despite agriculture being a subject of state regulation under the Constitution. The Union Government had acted unilaterally without involving relevant stakeholders (¶42.17 J. Nagarathna). She further observed that the grant of approval by the GEAC is governed by Rule 13 of Genetically Engineered Organisms Rules which does not involve the MoEF&CC in the decision making process. Therefore, the intervention by the Ministry without any authority in the approval process undermines the credibility of the regulatory process (¶42.18 J. Nagarathna). Furthermore, established statutory procedures cannot be replaced by alternative methods not outlined in the law and therefore actions taken outside the legal framework are invalid (¶42.20 J. Nagarathna).

Justice Karol noted that the power of the GEAC to grant approvals includes the power to regulate the manner in which the approval is granted (¶25(a)21 J. Karol). In the present case, the GEAC had created an expert committee to review the impact of DMH-11 mustard. The formation of and reliance on sub-committees and expert committees by the GEAC does not amount to the delegation of an essential function since the approval process itself has not been delegated (¶¶25(a)14, 25(a)17 J. Karol). Therefore, he opined that the approval for DMH-11 GM Mustard was well reasoned and in accordance with the Genetically Engineered Organisms Rules (¶25(b)5 J. Karol).

Right to safe and healthy environment

Justice Nagarathna observed that the potential risks to public and environmental health are irreversible and cannot be substituted by policy or economic measures (¶43.1 (iii) J. Nagarathna). The failure to publish the biosafety dossier on DMH-11 GM Mustard and ignoring the field studies warnings on the impact on honeybees showed lack of standards against misuse of discretion by the GEAC (¶44.1 J. Nagarathna). This failure to evaluate the potential environmental and health impact of GM crops endangers the health of the future generations (¶44.3 J. Nagarathna). Therefore, Justice Nagarathna held that in the absence of appropriate safeguard measures, the Union Government’s decision to grant approval for DMH-11 violates the right to a safe and healthy environment under Article 21 (¶44.5 J. Nagarathna).

Interpretation of the precautionary principle

The precautionary principle stipulates that the State should take proactive steps to prevent the degradation of environment and public health even in the absence of complete scientific certainty where the potential harms are irreversible. Justice Nagarathna observed that the environmental release of transgenic crops may lead to a potential loss of indigenous mustard varieties and can also have a serious impact on other beneficial organisms in our biodiversity (¶46 J. Nagarathna). Justice Nagarathna found that there is an absolute need for the conduct of a detailed and in depth assessment of the risk and consequences before proceeding with any such potentially harmful activity. The absence of such studies is a clear violation of India’s binding obligation under Article 14(1)(b) of the CBD and Article 26 of the CPB (¶46 J. Nagarathna).

Justice Karol held that the field trials and lab testing in respect of GM organisms are in line with the development of scientific temper as envisaged in our Constitution along with the precautionary principle (¶40 J. Karol). He observed that the minority report submitted by Dr. Paroda in the TEC, which recommended suitability of GM crops, cannot be disregarded entirely (¶28.10 J. Karol). He rejected the contention that the approval by GEAC suffers from non-application of mind, as it was based on multiple documents and deliberations and not just the comments of the expert committee (¶¶28.13, 29.4, 31(ii)(h) J. Karol). He noted that there exists a presumption in favour of a policy to be made in public interest when it is enacted by a competent authority unless proven to be manifestly arbitrary (¶43 J. Karol).

Prepared by Benila B M

Centre for Research and Planning, Supreme Court of India

ARVIND KEJRIWAL V. DIRECTORATE OF ENFORCEMENT2024 INSC 512 (12 July 2024)

Justice Sanjiv Khanna and Justice Dipankar Datta

Question(s): (i) What legal requirements have to be satisfied for an arrest to be lawful under Section 19 of the Prevention of Money Laundering Act, 2002 (“PMLA”)? (ii) Whether the Directorate of Enforcement’s (“ED”) arrest of Mr. Arvind Kejriwal complied with Section 19 of the PMLA.

The Delhi Government framed the Excise Policy 2021 for the sale of liquor in the National Capital Territory. The ED registered an Enforcement Case Information Report (“ECIR”) against several persons alleging that the adoption of this policy led to financial benefits for the accused and a loss of government revenue.

The ED summoned the Chief Minister of Delhi, Mr.Arvind Kejriwal, as part of its investigation. Mr. Kejriwal did not comply with the summons and was arrested by the ED on 21 March 2024. He challenged his arrest before the Delhi High Court which dismissed his plea on 9 April 2024. On 10 May 2024, the Supreme Court granted him interim bail until 1 June 2024 in light of the Lok Sabha elections 2024.

Section 19 of PMLA provides that an authorised officer making the arrest must: (i) have material in their possession which gives them reasons to believe the potential arrestee is guilty of an offence; (ii) write the reasons to believe that the potential arrestee has committed an offence under the PMLA; and (iii) inform the arrested person of the grounds of their arrest.

Mr. Kejriwal argued that his arrest was politically motivated and that the ED violated the procedures set out in Section 19 of PMLA during his arrest. He contended that Section 19 permitted arrest only where there was a “necessity to arrest” and the ED had failed to demonstrate the “necessity to arrest” Mr. Kejriwal. The ED contended that Mr.Kejriwal was the key conspirator in framing the Excise Policy in exchange for bribes. It also claimed that Mr. Kejriwal used the proceeds of the crime to fund the Goa election campaign of the Aam Aadmi Party (“AAP”), of which he is the convenor.

The Division Bench (Two-Judges) of the Supreme Court granted interim bail to Mr. Kejriwal while referring the legal questions concerning the validity of his arrest to a larger bench. The larger bench will address the issues related to the need and necessity for arrest under Section 19 of the PMLA. Mr. Kejriwal’s interim bail was subject to the following conditions: (i) furnishing a bail bond worth Rs.50,000 with surety; (ii) not visiting his office or signing official documents without approval; (iii) refraining from commenting on the case; and (iv) avoiding contact with witnesses or access to related official files. The judgment was authored by Justice Khanna.

The validity of an arrest under Section 19(1) can be challenged

The Supreme Court rejected the argument of the ED that judicial review of arrests under the PMLA will hinder the process of investigation. The legislature has laid out strict preconditions for arresting someone under Section 19 (¶21). The authority deciding whether to arrest is an administrative one, and the error by such authority would lead to a loss of liberty to the arrestee (¶61). Thus, courts must have the power to review the validity of arrests under Section 19(1) of the PMLA (¶21). Courts can examine whether an arrest made complies with all the preconditions in Section 19 and whether all the facts have been considered by the authority making the decision (¶¶21, 61).

Scope of review of arrest under Section 19 PMLA

The Supreme Court observed that the judicial review of an arrest under Section 19 PMLA is not a review on the merits of the case (¶¶39, 44). Judicial scrutiny becomes necessary when the reasons recorded for authorising arrest are not clear and lucid. The Courts should only ascertain whether the reasons provided by the ED justify the arrest made and whether the material in possession of the ED supports the ED’s reasons to believe that the arrestee is guilty of the offence (¶39). The Courts should also ensure that the actions of the ED are in accordance with the law. Therefore, the power of review by the courts extends to examining the validity of the ED’s reasons to believe the arrestee is guilty to ensure that the arrest is not arbitrary (¶39).

Existence and the validity of the reasons to believe

The Supreme Court observed that the phrase “reasons to believe” would mean that there should be a connection between the reasons for the formation of the belief and the elements on which the belief is formed (¶34). The subjective opinion formed by the authority under Section 19(1) should be based on a fair and objective consideration of the available materials at the time of arrest. The reasons to believe that the arrestee is guilty should be founded on the documents and the oral statements available with the officer (¶29). Courts can review if this opinion is based on relevant facts (¶32). The Court observed that the accused should be furnished with a copy of the ED’s reasons to believe to enable them to meaningfully challenge the arrest (¶36).

The Supreme Court observed that while determining the arrest of a person under Section 19 PMLA, the ED must consider all the evidence including any material that absolves the arrestee of guilt. An arrest cannot be made by selectively choosing material to arrive at the belief that the arrestee is guilty (¶¶50, 55-56).

There are sufficient reasons to believe the guilt of the accused

The Supreme Court examined the contents of the ED’s reasons to believe Mr. Kejriwal was guilty (¶48). The ED’s reasons to believe noted that Mr. Kejriwal is responsible both individually, as a key person in formulating the policy, and vicariously as the head of the AAP. Further, he failed to cooperate with multiple summons issued during the investigation process (¶48). The Court found that the ED had clearly recorded their reasons to believe that Mr. Kejriwal was involved in the offence of money laundering (¶49). The Court further noted that Mr. Kejriwal’s arguments against the ED’s reasons to believe are deductions and propositions. The judicial review of the court at the stage of arrest is limited and the court cannot review the merits of the opinion formed by the ED (¶65).

The Supreme Court referred to the case of Arnesh Kumar v. State of Bihar (2014 INSC 463) which recognised the importance of considering the necessity to arrest. An authorised officer making an arrest must show that there is a necessity to arrest the accused. In the present case, Mr. Kejriwal argued that the reasons to believe furnished by the ED did not disclose a necessity to arrest (¶67). The Court referred the question of need and necessity to arrest as a separate ground to challenge arrest under Section 19(1) for consideration by a larger bench (¶84).

Whether interim bail should be granted to Mr. Kejriwal

The Supreme Court noted that Mr. Kejriwal has undergone incarceration for over ninety days and the legal questions referred to the larger bench require in depth consideration. Recognising that the right to life and liberty is fundamental, the Court released him on interim bail subject to the above mentioned conditions (¶85).

Prepared by Rewant Singh (Intern)

Centre for Research and Planning, Supreme Court of India

MD. RAHIM ALI @ ABDUR RAHIM V. THE STATE OF ASSAM2024 INSC 511 (11 July 2024)

Justice Vikram Nath, Justice Ahsanuddin Amanullah

Question(s): What is the threshold for doubting a person’s nationality under the Foreigners Act, 1946 (“Foreigners Act”)?

In 2006, a case was registered in the Foreigners Tribunal, Nalbari, Assam (“Tribunal”) against the Appellant based on a reference made by the Superintendent of Police of Nalbari. The reference cast doubt on the Appellant’s nationality because on being asked, the Appellant could not produce any documentary evidence to prove his entry into India prior to 1 January 1966. The Appellant appeared before the Tribunal on 18 July 2011 and sought permission to file written submissions, but was ultimately unable to do so because, according to the Appellant, he was suffering from serious health issues.

By an ex-parte order (without hearing the Appellant) on 19 March 2012, the Tribunal ruled that the Appellant had failed to discharge his burden under Section 9 of the Foreigners Act. Section 9 requires the person whose citizenship is in doubt to prove that they are not a foreigner.

The Appellant appealed to the High Court Guwahati, which affirmed the Tribunal’s order. The Appellant subsequently approached the Supreme Court.

On 28 July 2017, the Supreme Court, considering the peculiar nature of the case, directed the Tribunal to decide the nationality of the Appellant after examining the documents the Appellant had produced. Subsequently, the Tribunal again found the Appellant to be a foreigner. The Tribunal’s findings were placed before the Supreme Court.

Need for a material basis to initiate the proceedings

The Supreme Court held that the authorities must possess some material or information to suspect that a person is a foreigner. A mere allegation cannot lead to shifting of the burden of proving their Indian nationality onto the accused, unless the accused person is confronted with the allegation coupled with the material backing such allegation (¶35).

The Supreme Court also held that in the absence of some material basis or information, it cannot be left to the discretion of the authorities to initiate proceedings to question the citizenship of a person based on hearsay or vague allegations, as such allegations have serious consequences for the person. The Court found that the Tribunal had failed to explain how and from where the allegation relating to the alleged village of origin of the Appellant in Bangladesh came to the knowledge of the authorities nor was any supporting material produced to substantiate the allegation (¶37).

The Supreme Court distinguished between the expressions ‘main grounds’ used in the Foreigners (Tribunals) Order, 1964 (“Tribunals Order”) and mere ‘allegations’ levelled against the accused. The Tribunals Order requires that the accused be provided with the main grounds on the basis of which they are accused of being a foreigner. The Court held that ‘main grounds’ means the material on which the allegation is founded and the nationality of the accused is doubted (¶¶ 38-39)

Strict compliance with the principles of natural justice

The Supreme Court held that the principles of natural justice, which require both sides to be heard, necessitates that the accused receive a copy of the main grounds (¶39). The information available with the authorities must be communicated to the accused to allow the accused to refute the allegation (¶35).

Spelling errors and discrepancy in dates are minor

Prepared by Osama Noor

Centre for Research and Planning, Supreme Court of India

FRANK VITUS V. NARCOTICS CONTROL BUREAU2024 INSC 479 (8 July 2024)

Justices: Justice Abhay S. Oka and Justice Ujjal Bhuyan

Question(s): (i) Whether requiring an accused to share their location on Google Maps with the Investigating Officer, as a condition for granting bail, violates the right to privacy of the accused. (ii) Whether requiring an accused who is a foreign national to obtain a Certificate of Assurance from their High Commission/Embassy ensuring their presence in India and appearance in court can be imposed as a condition for bail.

The Appellant, a Nigerian national, was being prosecuted under Sections 8, 22, 23, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) for the production, manufacture, sale, purchase, and use of narcotics/psychotropic substances, as well as the import and export of such substances.

After being arrested, the Appellant was granted bail subject to various terms and conditions as per the Supreme Court’s directions in Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India (1994 INSC 456) (“Supreme Court Legal Aid Committee”). In this case, the Supreme Court had issued certain directions for the release of undertrial prisoners in NDPS cases.

Aggrieved by the conditions imposed while granting bail, the Appellant appealed to the Supreme Court. The specific conditions the Appellant contested were: (i) the requirement to obtain a certificate of assurance from the High Commission of Nigeria, guaranteeing that the Appellant would not leave India and would appear in Court; (ii) the requirement to drop a PIN on Google Maps to allow the Investigation Officer to track the Appellant’s location.

Additional Bail Conditions in the “Interest of Justice”

The Supreme Court held that once a case for bail is made out under Section 37 of NDPS Act, the conditions of bail should follow Section 437(3) of the Criminal Procedure Code (“CrPC”). Such conditions may include: (i) the accused attending the court as required; (ii) the accused refraining from committing similar offences; and (iii) not interfering with the investigation by influencing witnesses (¶5). The Court noted that while additional conditions can be imposed “in the interest of justice,” these conditions should not be arbitrary or overly restrictive. They must serve the purpose of preventing interference with the investigation, ensuring the accused does not tamper with evidence, and maintaining their presence at trial (¶7).

Condition of Dropping PIN on Google Maps

The Supreme Court found that the requirement for the accused to drop a PIN on Google Maps was redundant and ineffective for tracking purposes. The Court noted that this condition fails to offer real-time tracking and, thus, does not aid the Narcotics Control Bureau in monitoring the accused’s movements (¶10.1). The Court held that imposing such a condition would infringe the accused’s right to privacy under Article 21 by requiring them to share their location, but has no relevance as a condition for bail as it does not facilitate real-time monitoring (¶10.2). The Court also noted that a bail condition which allows the police or investigation agency to track every movement of the accused would violate the right to privacy under Article 21 of the Constitution (¶10.2).

Condition of Furnishing a Certificate from the High Commission/Embassy

The Supreme Court clarified that the requirement to provide a certificate from the High Commission/Embassy of the country to which the accused belongs, as required in Supreme Court Legal Aid Committee, was applicable only as a one-time measure for cases pending at the time of the judgment. It is not a blanket condition for all cases involving foreign nationals (¶11.1). If obtaining such a certificate proves impractical or the Embassy fails to issue it within a reasonable time, the court can waive this requirement. The accused cannot be held responsible for delays beyond their control (¶12). Alternative conditions, such as requiring the accused to surrender the passport or regularly reporting to the police, may be imposed instead (¶12).

Prepared by Rewant Singh (Intern)

Centre for Research and Planning, Supreme Court of India

PRABIR PURKAYASTHA V. STATE (NCT OF DELHI)2024 INSC 414 (15 May 2024)

Justice Bhushan R. Gavai, Justice Sandeep Mehta

(i) Whether a person arrested under the Unlawful Activities (Prevention) Act, 1967 (“UAPA”) is required to be provided with the grounds of their arrest in writing. (ii) Whether the Appellant’s remand into police custody was legal.

A Special Cell of the Delhi Police conducted raids on the residential and business premises of the Appellant and PPK Newsclick Studio Pvt. Ltd., where the Appellant is a Director. The raids were carried out in connection with a First Information Report (“FIR”) filed under various sections of the UAPA, and the Indian Penal Code. During these raids, numerous documents and digital devices were seized. The Appellant was arrested on 3 October 2023. The Appellant was produced before an Additional Sessions Judge and remanded to seven days of police custody on 4 October 2023. The Appellant challenge to the arrest and remand was rejected by the Delhi High Court on 13 October 2023, leading to the current appeal before the Supreme Court.

The Appellant contended that his arrest memo did not include grounds for arrest, and the remand process was conducted without proper legal representation, resulting in an illegal remand order. The Respondent State contended that the arrest followed due process, and there is no constitutional mandate requiring the grounds of arrest to be conveyed in writing under the UAPA.

‘Grounds of Arrest’ must be communicated in writing

The Supreme Court stated that Article 22(1) of the Constitution (‘Protection against arrest and detention in certain cases’) mandates that the grounds of arrest must be communicated in writing (¶20). The Court noted that the decision in Pankaj Bansal (2023 INSC 866), had held that an individual arrested under Section 19 of the Prevention of Money Laundering Act, 2002 was entitled to be informed of the grounds of their arrest in writing, and the same principle would apply to cases under the UAPA where the statutory language was the same (¶¶18-20). The Court also rejected the State’s argument that in cases of preventive detention, governed by Article 22(5) of the Constitution, no grounds of detention needed to be communicated to the detenu (¶¶23-30).

Distinction Between ‘Reasons’ and ‘Grounds’ of Arrest

The Supreme Court differentiated between ‘reasons for arrest’ and ‘grounds of arrest’ (¶49). The Court observed that ‘reasons for arrest’ are formal and could apply to any accused person (e.g., to ‘investigate the offence’ or to ‘prevent the accused from committing further offences’) (¶49). However, ‘grounds of arrest’ is the detailed information that the Investigating Officer possesses which necessitates the arrest of the particular accused in the particular case (¶49).

Procedural Irregularities in Remand

In the present case, the Supreme Court noted that the Appellant’s chosen legal representative was not informed or present during the remand proceedings where the Appellant was produced and sent to police custody. Instead, a remand advocate was appointed despite the Appellant’s chosen lawyer making himself known to the police (¶34). Crucially, a copy of the FIR was shared with the Appellant's lawyer only after the remand order had already been passed (¶33). The Appellant’s lawyer was not informed of the grounds of arrest in writing until after the remand order had been passed (¶35). Further, the Supreme Court found that the arrest memo did not disclose any grounds of arrest (¶¶37-39, 48).

Prepared by Shambhavi Gupta

Centre for Research and Planning, Supreme Court of India

Case Summaries are prepared to help promote a better understanding of the decisions of the Supreme Court of India. They do not form part of the Court's decision or reasons and are not for use in legal proceedings.

ARVIND KEJRIWAL V. DIRECTORATE OF ENFORCEMENT2024 INSC 400 (10 May 2024)

Justice Sanjiv Khanna and Justice Dipankar Datta

Whether interim bail should be granted to Mr. Arvind Kejriwal?

On 20 July 2022, the Lieutenant Governor of National Capital Territory (“NCT”) of Delhi made a complaint regarding certain financial irregularities concerning the Delhi Excise Policy. Following the direction of the Ministry of Home Affairs, Government of India, an investigation by the Centre Bureau of Investigation (“CBI”) led to the registration of First Information Reports. The Directorate of Enforcement (“ED”) registered a complaint on 22 August 2022. The CBI’s investigation implicated Mr. Kejriwal, the Chief Minister of the NCT of Delhi, in an alleged criminal conspiracy and offenses under Section 7 of the Prevention of Corruption Act, 1988 (public servants taking gratification for an official act).

After its investigation, the ED filed a complaint on 26 November 2022. The CBI also filed a chargesheet. However, charges had not been framed yet. On 21 March 2024, the ED arrested Mr. Kejriwal in pursuance of its investigation. Mr. Kejriwal was remanded into the custody of the ED. The trial court and High Court of Delhi upheld the legality of Mr. Kejriwal’s arrest.

Mr. Kejriwal filed an appeal before the Supreme Court of India challenging the legality of his arrest. In view of the lengthy nature of the proceedings and imminent general elections, the Supreme Court also agreed to hear the arguments for the grant of interim bail to Mr. Kejriwal.

A Division Bench (Two-Judges) of the Supreme Court held that Mr. Kejriwal should be released on interim bail till 1 June 2024 on certain terms and conditions. First, he will have to surrender to the investigation authorities on 2 June 2024; second, he must furnish bail bonds to the sum of Rs. 50,000; third, he shall not be allowed to visit the Office of the Chief Minister and the Delhi Secretariat; fourth, he shall not sign official files unless it is required and necessary for obtaining approval of the Lieutenant Governor of Delhi; fifth, that he shall not make any comment with regard to his role in the present case; and sixth, he shall not interact with any of the witnesses or have access to any official files connected with the case.

The Supreme Court noted that it was not possible to pronounce a final judgment on the arguments concerning the legality of arrest immediately (¶7). However, given that the 18th Lok Sabha elections were already underway, the Court decided to consider the issue of interim bail for Mr. Kejriwal for the duration of the elections (¶¶7-8).

The Supreme Court observed that the term “interim bail” is not defined anywhere in any law (¶13). However, it has gained legal acceptance and entails the temporary release of an individual under compelling or unique circumstances. It is different from regular bail and is generally pleaded when the accused or convict is not entitled to regular bail (¶¶13-14).

The Supreme Court then referred to previous case laws pertaining to the power to grant interim bail (¶¶9-13) and noted that the grant of interim bail is based on the facts of each case (¶14). The Court took note of the ED’s contention that Mr. Kejriwal had failed to appear before the ED in spite of nine notices being issued to him (¶15). However, after considering other factors including the fact that Mr. Kejriwal was the Chief Minister of Delhi and a leader of a national party as well as the fact that he did not have any past criminal record and was not a threat to society, the Court directed that Mr. Kejriwal be released on interim bail (¶15).

The Supreme Court also emphasised that the investigation in the case was yet to be completed and the validity of the arrest itself had been challenged and was pending before the Supreme Court (¶15). Further, since the 18th Lok Sabha elections were also taking place, the Court granted interim bail to Mr. Kejriwal (¶15). The Court, however, clearly stated that the grant of interim bail to Mr. Kejriwal was not an expression of its opinion on the merits of the case (¶19).

Prepared by Navya Yadav (Intern)

Centre for Research and Planning, Supreme Court of India

SHARIF AHMAD V. THE STATE OF UTTAR PRADESH HOME DEPARTMENT SECRETARY2024 INSC 363 (1 May 2024)

Justice Sanjiv Khanna and Justice Sarasa V. Bhatti

When can a chargesheet be said to be complete so that the Court can take cognizance of the offence under the Code of Criminal Procedure, 1973 (“CrPC”)?

The Appellants in this case were involved in a property ownership dispute. An FIR was filed against them under Sections 420 (cheating), 406 (breach of trust), and 506 (criminal intimidation) of the Indian Penal Code, 1860 (“IPC”). The FIR alleged that the Appellants had agreed to sell the property, accepted a partial payment, but failed to complete the registration or return the payment. Subsequently, a chargesheet was filed against them under Sections 406 (breach of trust) and 506 (criminal intimidation) of the IPC.

After the Allahabad High Court dismissed their application to quash the chargesheet and stop the criminal proceedings, the Appellants approached the Supreme Court.

The Division Bench (two judges) of the Supreme Court allowed the appeal filed by the Appellants and set aside the chargesheet and criminal proceedings against them. The Court held that in this case there was no evidence of entrustment; the property was not handed over in trust, rather, there was a sale. Therefore, there could be no question of a breach of trust under Section 406 IPC. Additionally, there was no material to show intent to cause alarm, necessary for an offence of criminal intimidation under Section 506 IPC, even if the allegations against the Appellants were to be accepted.

The Court further elaborated on the necessary contents of a chargesheet, stating that it is considered complete when it includes sufficient material and evidence for the Court to take cognizance and proceed to trial. The Court further stressed the importance of chargesheets containing detailed facts of the offence and the relevant evidence, as mandated by Section 173(2) of the CrPC.

Importance of charge sheet

The Supreme Court emphasised the importance of a chargesheet in criminal proceedings. It held that an investigation involves multiple stages: visiting the crime scene by the investigating officer, ascertaining facts, making arrests, collecting evidence, and forming an opinion on whether an offence is made out. The submission of a chargesheet, which is the final step, depends on the opinion of the investigating officer (¶27). Upon completing the investigation, the investigating officer must promptly submit a report with the prescribed details to the Magistrate empowered to take cognizance of the offence. The report which is presented represents the investigating officer’s conclusion based on the materials collected during the investigation. (¶22). Although the terms “chargesheet” and “final report” are not explicitly used in the CrPC, they are commonly understood as the report filed by the police under Section 173(2) of the CrPC (¶15).

The Supreme Court further explained that the submission of the chargesheet under Section 173(2) of the CrPC, cognizance taken under Section 190, the summoning of the accused under Section 204, and the framing of charges under Chapter XVII of the CrPC are closely interrelated. The details in the chargesheet are crucial for the subsequent procedural stages (¶20). The charge sheet is the primary document available to the court at this stage, containing the investigating officer’s reasons for charging the accused. This helps the Magistrate determine if there are sufficient grounds to take cognizance, initiate proceedings, issue notices, and frame charges (¶20).

Meaning of “taking cognizance of offence”

The Supreme Court also clarified the meaning of “taking cognizance of an offence” in relation to Sections 190 and 204 of the CrPC. It explained that “cognizance” under Section 190 refers to the judicial act of a Court or Magistrate in taking notice of an offence, and deciding to initiate legal proceedings (¶16). This stage requires the magistrate to assess the contents of the complaint or police report to determine if there are sufficient grounds to proceed. More importantly, this evaluation does not involve judging the adequacy of evidence for conviction, which is only decided during the trial stage (¶16).

When can a charge sheet be said to be complete

The Supreme Court held that a chargesheet is considered complete under Section 173(2) of CrPC when it includes material and evidence sufficient for the court to take cognizance and proceed to trial. The evidence presented should prima facie establish the offence, if it is proven during trial (¶13). It was held that a chargesheet is deemed complete if the case does not rely exclusively on further (yet to be discovered) evidence, allowing the trial to proceed based on the evidence and material already on record (¶13). The chargesheet need not be overly detailed in its evaluation of evidence, as that is the purpose of the trial (¶23).

Further, the Supreme Court held that a complete chargesheet should reflect a thorough investigation into the alleged offence and provide the Magistrate with enough information to decide on the appropriate course of action, whether to take cognizance, issue process, or exercise other available options (¶24). The final report/chargesheet must clearly and precisely outline the alleged contravention of the law (¶28).

Lastly, the investigating officer must ensure all columns in the chargesheet are thoroughly completed, clearly indicating which crime was committed by which accused, and listing the available material evidence (¶31). Statements of witnesses and related documents should be included with the list of witnesses. The specific role played by each accused in the crime should be distinctly mentioned for each person involved (¶31).

Prepared by Vidhi Gupta

Centre for Research and Planning, Supreme Court of India

ASSOCIATION FOR DEMOCRATIC REFORMS V. ELECTION COMMISSION OF INDIA2024 INSC 341 (26 April 2024)

Justice Sanjiv Khanna and Justice Dipankar Datta

(i) Whether the current use of Electronic Voting Machines (“EVMs”) ensures the integrity and security of elections. (ii) Whether there is a need for 100% vote-verification through Voter Verifiable Paper Audit Trail (“VVPAT”) to cross-check votes cast through EVMs.

The Association for Democratic Reforms, a non-governmental organisation, filed a petition challenging the reliability of EVMs. The Petitioners argued that either EVMs should be discontinued, and the Court should pass directions to return to the paper-ballot system, or 100% of the VVPAT slips should be counted alongside the electronic tally to ensure transparency.

The VVPAT system, linked to EVMs, allows voters to verify their vote through a slip printed with the candidate’s name, symbol, and serial number, visible for seven seconds before it gets cut and deposited into a sealed box. Currently, five randomly chosen polling stations per constituency undergo VVPAT verification, where the electronic count is checked against the printed slips. The petitioners argued this was insufficient, and proposed that the VVPAT printed slip should be given to voters to verify and then placed in a ballot box for counting, or that there should be 100% VVPAT slip verification to ensure votes are accurately recorded and counted.

The Division Bench (two judges) of the Supreme Court rejected the Petitioner’s demand for a complete return to paper ballots or for 100% counting of VVPAT slips. The Court acknowledged the Petitioner’s concerns regarding the transparency and reliability of EVMs but emphasised that the current system, which made the VVPAT slip visible to the voter for seven seconds before being deposited in a sealed box, provides an adequate method for verifying votes. The Court also issued directions to ensure further improvements in the electoral process to enhance voter confidence and the integrity of elections. Justice Khanna authored an opinion, and Justice Datta also wrote a concurring opinion.

The Supreme Court highlighted the procedures and safeguards implemented by the Election Commission of India to uphold the integrity of elections. The EVM system is comprised of three units: the ballot unit, the control unit, and the VVPAT. The ballot unit functions as a keypad with sixteen keys for voters to select their candidate (¶17 J. Khanna). Serial numbers, candidate names, and party symbols are physically pasted on the ballot unit to help voters identify the corresponding key/button (¶17 J. Khanna).

The control unit, managed by the polling officer, activates the ballot unit for voting when the ‘BALLOT’ button is pressed. When a voter presses the buttons on the ballot unit, an LED next to the candidate’s button lights up, and the control unit instructs the VVPAT to print a slip (¶17 J. Khanna). This VVPAT slip displays the serial number, candidate name, and symbol, visible through a glass window for seven seconds for voter verification. The slip is then cut from the roll and deposited into the VVPAT compartment. The fall sensor in the VVPAT then sends a confirmation to the control unit, which then records the vote (¶17 J. Khanna).

Concerns about EVM manipulation are unfounded

The Supreme Court noted that approximately ten to fifteen days before polling, symbols are electronically loaded onto the VVPAT using symbol loading units, which involves creating a bitmap file with candidate details and symbols (¶¶30-31 J. Khanna). During this stage, each candidate is assigned a specific button/key on the ballot unit based on alphabetical order and the type of political party, which varies by constituency (¶31 J. Khanna). Until the symbol loading process into the VVPATs is completed, the EVMs remain devoid of any data related to political parties or candidates (¶35 J. Khanna). This process does not alter the firmware programmed in the control unit and ballot unit, which remains neutral towards candidates and political parties (¶36 J. Khanna). Thus, prior to the symbol loading process, the EVM has no data about political parties and one cannot ascertain which button will be allocated to which party (¶35 J. Khanna). Prior to polling, the presiding officer has to demonstrate to the polling agents that no vote has been recorded on the control unit (¶43 J. Khanna). On polling day, rigorous procedural checks include a mock poll, to check that pressing a party’s button results in VVPAT slip for the party, and sealing of EVMs with serialised paper seals, overseen by candidates and security personnel (¶34-38 J. Khanna). Further, the EVM will not accept more than four votes in one minute, preventing booth capture and repeated pressing of the voting button (¶33 J. Khanna).

The polled EVM units are sealed and stored in strong rooms in the presence of candidates or their representatives, who are also allowed to put their seals on the lock of the strong room. These rooms are guarded by armed security and monitored with CCTV, ensuring the integrity of the stored EVMs (¶39 J. Khanna). After polling, the Presiding Officer can press the ‘Total’ key to ascertain how many votes were recorded but cannot ascertain the breakup of votes in favour of each party. Only on counting day, in the presence of the candidates or their representatives, is the ‘Result’ key pressed on the control unit to ascertain which party’s button was pressed how many times (¶41 J. Khanna). EVMs are not connected to the internet (¶41 J. Khanna). Therefore, it would be impossible to hack or tamper with the firmware of the EVM (¶42 J. Khanna).

Return to ballot paper voting is not feasible

The Supreme Court highlighted the well-documented weaknesses of the ballot paper system, emphasising the impracticality of using it in a country with nearly 97 crore voters, numerous candidates, and extensive polling booths (¶72 J. Khanna, ¶4 J.Datta). Justice Khanna noted that EVMs have significant advantages, including the prevention of booth capturing, elimination of invalid votes, reduced paper usage, and administrative efficiency (¶72 J. Khanna).

Justice Datta concurred, stating that the suggestion to revert to the paper ballot system was an attempt to discredit the EVM system and create unnecessary doubts among the electorate. He affirmed that reverting to the old system was not feasible and emphasised the importance of improving the EVMs or developing better systems in the future (¶¶4-5 J.Datta).

Physical access to VVPAT slips or need to increase the verification of VVPAT slips

Justice Khanna emphasised that while voters have a fundamental right to ensure their vote is accurately recorded and counted, this does not mean that the way to secure this right is to require 100% counting of VVPAT slips or allow voters to physically access the slips. (¶69 J. Khanna). It was further held that increasing the number of VVPAT slip counts would delay the results, require double the manpower, and introduce more human errors and increase the potential for manipulation. Justice Khanna noted that data does not support the need for such an increase in verification (¶70 J. Khanna).

Justice Datta pointed out that existing measures, such as tallying VVPAT slips in five EVMs per assembly constituency, as established in N. Chandrababu Naidu v. Union of India (2024 INSC 341), has ensured transparency and reliability without any mismatches (¶¶10-11 J. Datta).

Directions issued by the Court

Finally, Justice Khanna issued two directives to further bolster the credibility of the electoral process: Firstly, the symbol loading units of VVPATs must be securely sealed and stored with EVMs in strong rooms for 45 days after elections, with seals signed by candidates or their representatives. Secondly, candidates ranked second or third behind the highest polled candidate can request engineers to verify the burnt memory of EVMs within seven days of result declaration, covering five percent of EVMs per constituency. The costs for the same will be borne by candidates, and will be refunded if the EVM is found to be tampered (¶76 J. Khanna).

Prepared by Sandhya (Intern)

Centre for Research and Planning, Supreme Court of India

Case Summaries are prepared to promote a better understanding of the decisions of the Supreme Court of India. They do not form part of the Court's decision or reasons and are not for use in legal proceedings.

M.K. RANJITSINH V. UNION OF INDIA2024 INSC 280 (21 March 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Jamshed B. Pardiwala, Justice Manoj Misra

(i) What steps should be taken to protect the Great Indian Bustard?(ii) Whether the order of the Supreme Court restricting overhead transmission lines over 99,000 sq km needs reconsideration.(iii) Whether a committee of experts is required for monitoring and preparing data to ensure protection for the declining Great Indian Bustard population.

The Great Indian Bustard is typically found in arid or grassland regions in Rajasthan and Gujarat. Recent studies have indicated that the species is at risk of extinction, and the bird has been classified as critically endangered by the International Union for Conservation of Nature. A significant factor contributing to the decline in the Great Indian Bustard population was collisions with overhead electricity transmission wires.

A writ petition under Article 32 of the Indian Constitution was filed in the Supreme Court of India seeking guidelines for the conservation of the Great Indian Bustard. On 19 April 2021, the Court issued an interim order imposing restrictions on the installation of overhead transmission lines across an area covering approximately 99,000 square kilometers. It mandated that future power lines in Great Indian Bustard habitats be placed underground. Existing power lines in priority areas were also directed to transitioned to underground lines, with the immediate installation of bird diverters.

Subsequently, the Ministries of Environment, Forests, and Climate Change, Power, and New and Renewable Energy sought amendments to the Court’s directions, citing potential adverse impacts on solar power generation and India’s commitments under the Paris Agreement on Climate Change to transition away from fossil fuels and reduce emissions.

The Three-Judge Bench of the Supreme Court, while emphasizing the critical importance of proactively protecting Great Indian Bustards, overturned the earlier interim order dated 19 April 2021. The Court held that there are no valid grounds for a blanket prohibition on solar power transmission lines across a 99,000 square kilometer area, as converting all lines to underground poses technical challenges. The judgment of the Court was authored by Chief Justice Chandrachud.

Recognising the complex interplay between biodiversity conservation and climate change mitigation, the Supreme Court highlighted the need for a balanced approach.The Court constituted an expert committee, which was given a broad mandate, including assessing the feasibility of underground lines and effectiveness of bird diverters, and was directed to submit its report by July 31, 2024.

India’s commitment to international conventions

The Supreme Court acknowledged that to combat climate change on a global scale, India had made international commitments through agreements such as the Kyoto Protocol and the Paris Agreement to reduce greenhouse gas emissions and promote renewable energy (¶11). One of these commitments was to achieve approximately fifty percent of cumulative electric power from non-fossil fuel-based energy resources by 2030 (¶15(a)). The promotion of renewable energy was also intended to play a crucial role in promoting social equity by providing access to clean and affordable energy.

Not feasible to convert all transmission lines into underground power transmission lines

The Supreme Court underscored the importance of promoting solar energy as a pivotal measure in the global shift towards cleaner fuel alternatives. The Court noted that India had significant solar energy potential (¶37). Solar photovoltaic power could provide cooking, lighting, and other energy solutions for millions in Indian villages, resulting in social and economic benefits such as reducing indoor air pollution health risks, creating village-level jobs, and improving living standards (¶37).

The Supreme Court highlighted the challenges in converting all transmission lines to underground power lines, emphasizing that a balanced approach is required which considers both the conservation of the Great Indian Bustard and broader environmental goals (¶60). It was noted that undergrounding power lines may protect the Great Indian Bustard but poses practical challenges such as safety risks, higher costs, and technical impracticality for lines above 60 kV (¶52). The Electricity Act does not facilitate land acquisition for underground cables, unlike overhead lines, which only require right of way (¶52(f)). Moreover, the conversion could hinder renewable energy development in Rajasthan and Gujarat, crucial for meeting growing power demands and international climate commitments (¶52(j)). Additionally, the Court acknowledged that the decision of whether to lay underground power lines is a matter of environmental policy, requiring input from domain experts. Therefore, the Court recommended appointing an expert committee to assess the situation comprehensively (¶61).

The right to a healthy environment and the right to be free from the adverse effects of climate change

The Supreme Court noted, in light of its various decisions in MC Mehta v. Kamal Nath (2000 INSC 329), Karnataka Industrial Areas Development Board v. C Kenchappa (2006 INSC 323), and Bombay Dyeing & Co Ltd v. Bombay Environmental Action Group (2006 INSC 993), that the right to a clean environment, which falls under Article 21 (Right to Life) of the Constitution, was threatened by climate change (¶¶ 21, 23). Additionally, it was recognized that Article 14 (Right to Equality) would also be infringed as climate change would disproportionately affect some individuals over others. Consequently, the Supreme Court recognized the right to a healthy environment and the right to be free from the adverse effects of climate change as a constitutional right (¶27).

Duty of the Court to give effect to international agreements and treaties

The Supreme Court held that despite India’s international obligations not being incorporated into domestic law in this case, the Court must consider these obligations seriously when adjudicating writ petitions (¶58). It also noted that it could not allow writ petitions to interfere with the fulfillment of India’s legal obligations (¶58).

Prepared by Nishika (Intern)

Centre for Research and Planning, Supreme Court of India

NOBLE M PAIKADA V. UNION OF INDIA2024 INSC 241 (21 March 2024)

Justice Abhay S. Oka and Justice Sanjay Karol

Whether Item 6 in the notification dated 28 March 2020, which granted a complete exemption from needing prior Environmental Clearance to unearth soil for creating roads, pipelines etc., was arbitrary and unconstitutional?

On 14 September 2006, the Ministry of Environment and Forests (“MoEF”) issued a notification (“2006 Notification”) under the Environment (Protection) Act, 1986 (“EP Act”). The 2006 Notification included a schedule listing what constituted Category A and B construction projects. The 2006 Notification stated that all construction projects falling under Category A or B will require an Environmental Clearance (“EC”); permission was required from a regulatory authority before starting a new project or expanding an existing one.

On 15 January 2016 the MoEF issued another notification (“2016 Notification”) (after inviting objections from the public) that added an exception for certain types of projects which no longer required an EC. Item 6 of the 2016 Notification exempted dredging and removal of silt from dams, reservoirs, rivers and canals for building or maintenance.

On 28 March 2020, the MoEF, without public consultations, came out with a new notification (“2020 Notification”) that amended the 2016 Notification. Item 6 now allowed the extraction of ordinary soil for “linear projects” like roads, pipelines etc. without an EC.

The 2020 Notification was challenged before the National Green Tribunal (“NGT”) which held that a complete exception for linear projects cannot be provided, rather appropriate safeguards that define the process of excavation and impose a limit on soil extraction must be added. An appeal against the NGT’s decision was filed before the Supreme Court.

The Division Bench (two judges) of the Supreme Court held that the decision to directly issue the 2020 Notification without holding public consultations rendered the new Item 6 unconstitutional and violative of Article 21 of the Constitution of India, which guarantees the right to live in a pollution-free environment. Further, the Supreme Court held that Item 6 of the 2020 Notification, in the absence of any specific directions, definitions and safeguards, was vague and arbitrary. The Court accordingly struck down Item 6 of the 2020 Notification. The decision of the Court was authored by Justice Oka.

Failure to invite objections from the citizens

The Supreme Court noted that the 2016 Notification was published only after following the procedure for considering objections from the public, as provided under Rule 5(3) of the Environment (Protection) Rules, 1986 read with Section 3 of the EP Act (¶22). However, the 2020 Notification did not adhere to this requirement (¶22).

The Supreme Court further reasoned that Article 21 of the Constitution had been read to guarantee a right to live in a pollution-free environment. Citizens had a corresponding fundamental duty to protect and improve the environment under Article 51A, hence, the Indian people formed a major stakeholder in environmental matters and their involvement cannot be bypassed without good reasons (¶22).

Notification issued with improper haste

The Supreme Court observed that the 2020 notification was issued a mere two days after the start of the pan-India lockdown due to the COVID-19 pandemic (¶24). The Court noted there had been no hurry to modify the 2016 Notification through the 2020 Notification, when all construction had come to a standstill because of the lockdown, and no need to forgo the aforementioned public consultations. Consequently, the Court held the addition of Item 6 through the 2020 Notification to be illegal and unconstitutional (¶24).

Arbitrariness and lack of clarity

The Supreme Court observed that the purpose of the 2006 Notification was to introduce ECs to mitigate the environmental damage occurring as a result of industrialisation. Thus, any exception to the EC procedure must be specific and well-reasoned (¶25). The Court also found Item 6 to be uncertain and unclear, because it provided an exemption for digging ordinary soil for use in linear projects, without mentioning either the quantity, or the manner, or area in which soil could be dug (¶25).

Moreover, the Supreme Court also noted that the term “linear projects” was undefined and could technically include anything under its ambit (¶25). The Court deemed that the lack of proper parameters and the absence of a regulatory body to categorise a project as linear or non-linear rendered the exemption vague and vulnerable to misuse (¶25).

Prepared by Virendra Pratap Singh Rathod (Intern)

Centre for Research and Planning, Supreme Court of India

Case Summaries are prepared to help promote a better understanding of the decisions of the Supreme Court of India. They do not form part of the Court’s decision or reasons and are not for use in legal proceedings.

NAVAS @ MULANAVAS V. STATE OF KERALA2024 INSC 215 (18 March 2024)

Justice Bhushan R. Gavai, Justice Kalpathy V. Viswanathan, Justice Sandeep Mehta

What is the suitable term of imprisonment that should be imposed for the offence of murder?

The Appellant was convicted by both the Trial Court and the Kerala High Court for offences under Sections 302 (murder), 449 (house-trespass), and 309 (attempt to commit suicide) of the Indian Penal Code, 1860 (“IPC”). The case involved house trespass and the killing of four family members, including a child and an elderly woman, followed by an attempt to commit suicide by the Appellant.

Initially, the Trial Court sentenced the Appellant to death. However, the Kerala High Court subsequently commuted this sentence to thirty years of imprisonment without any possibility of remission. The Appellant, thereafter, appealed to the Supreme Court against his conviction and sentence.

The Three Judge Bench of the Supreme Court upheld the Appellant’s conviction but reduced the sentence for the offence of murder from thirty years without remission, to twenty-five years without remission, including the period already served. The judgement of the Court was authored by Justice Viswanathan.

The Supreme Court illustratively laid down the aggravating and mitigating circumstances for determining the minimum sentence (without remission) to be imposed while commuting a death sentence. In the present case, the Court held that the relatively young age of the Appellant when he committed the crime (twenty eight years), the absence of any financial motive, and no attempt to escape from the crime scene, were mitigating factors. The fact that the decision primarily relied on circumstantial evidence and the Appellant had already served more than eighteen years in jail while showcasing positive conduct throughout, further influenced the decision to reduce the sentence.

Balance between public safety and individual freedom to ensure proportionality in sentencing

The Supreme Court relied on the case of Swamy Shraddananda v. State of Karnataka (2007 INSC 653), where it had previously laid down that in cases of murder, the court can impose a graver form of imprisonment, beyond the standard fourteen years of life imprisonment without remission, without resorting to the death penalty, to ensure the punishment is appropriate for the crime committed. (¶24). This helps resolve situations where the case does not warrant the death penalty but a fourteen-year sentence is also inadequate (¶24). This principle was reaffirmed in Union of India v. V. Sriharan (2015 INSC 886), which clarified that life imprisonment means incarceration for the convict’s entire life, subject to possible remission, entrusting courts with the discretion to determine the appropriate length of life imprisonment (¶25).

Therefore, the Supreme Court emphasised that determining the appropriate length of imprisonment requires careful consideration and discretion, as there is no strict formula. There is a need for a proportionate sentence that fits the crime and respects individual liberty. It was held that courts must adopt a balanced approach and avoid undue leniency, which can undermine public confidence, while ensuring that sentences are not excessively harsh (¶27).

Weighing between aggravating and mitigating factors

The Supreme Court pointed out certain relevant factors which can be taken into consideration while deciding on the sentencing of the convict before the powers of remission can be invoked. The list consisted of several factors including- the number of victims and their age and gender, the nature of injuries, the offender’s motive, criminal history of offender, premeditated nature of the offence, the possibility of committing the offence again in future, relationship between the offender and the victim, and breach of trust. The positive factors such as age of the accused, chance of rehabilitation, remorsefulness of accused, their family background, and their socio-economic condition , also plays an important role in weighing the factors (¶57).

While weighing the actions of the Appellant on this scale, the Supreme Court observed that on the aggravating side, the act was planned and premeditated, the victims were unarmed, one of whom was a child and one was an old lady. Furthermore, the nature of injuries on the body of deceased persons showcases the brutality of the Appellant (¶58). On the mitigating side, the age of the Appellant, lack of financial gain from the offence, no attempt to escape and positive behaviour of the Appellant in jail were taken into consideration (¶59). As a result of this balance, the Court modified the sentence to twenty-five years without remission, including the period already undergone by the Appellant (¶60).

Prepared by Meemansha Choudhary (Intern)

Centre for Research and Planning, Supreme Court of India

DEVU G. NAIR V. THE STATE OF KERALA2024 INSC 228 (11 March 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Jamshed B. Pardiwala, Justice Manoj Misra

Whether the Appellant’s habeas corpus petition to secure the release of her relationship-partner should be allowed?

The Appellant, and ‘X’, the detainee, were women in a same-sex relationship. The Appellant alleged that ‘X’ was being unlawfully confined by her parents to keep ‘X’ apart from the Appellant. Thus the Appellant filed a habeas corpus plea in the Kerala High Court seeking the release of ‘X’.

The High Court instructed the Secretary of the District Legal Services Authority (“DLSA”) to visit ’X’s residence and record her statements to determine if she is being held illegally. Subsequently, the High Court ordered ‘X’ to participate in counselling sessions at an authorised centre.

The Appellant challenged this order before the Supreme Court and argued that having the Secretary of the DLSA record ‘X’s statements while she remained in her parents’ custody would be ineffective. Furthermore, the Appellant claimed that mandating counselling sessions for the detenu was fundamentally flawed and interfered with her autonomy.

The Supreme Court directed ‘X’s’ parents to produce her before the Family Court in Kollam by 8 February 2023. An interview with Ms. Saleena V G Nair, a Member of the e-Committee of the Supreme Court, was arranged to ascertain 'X's' wishes.

The Principal Judge of the Family Court and Ms. Nair submitted reports indicating that 'X' freely expressed her wish to focus on her career and voluntarily reside with her parents. ‘X’ described the Appellant as an "intimate friend" but stated she did not currently wish to marry or live with the Appellant.

The Three-Judge Bench of the Supreme Court found no reason to doubt Ms. Nair’s report and decided not to interfere. However, the Court observed that High Courts should respect people's sexual orientation and identity without trying to undermine or alter them through therapy or other measures. The Constitution protects the rights and dignity of members of the LGBTQ+ community and courts must respect the autonomy of such individuals. The judgement of the Court was authored by Chief Justice D.Y. Chandrachud.

The Supreme Court also established guidelines emphasising the importance of prioritising habeas corpus petitions, ensuring privacy, safety, and non-discrimination, promptly releasing detained individuals, and providing immediate police protection. These guidelines are for courts handling cases where the police or family members attempt to intervene with personal relationships that individuals have freely chosen.

Counselling should not be to overcome the will of the person (LGBTQ+)

The Supreme Court was concerned that the counselling should not be used as a tool to subdue the person's will, especially about their sexual orientation (¶12). The Supreme Court stated that judges should not try to change a person's identity or sexual orientation through counselling, and it is improper for judges to replace the ideals guaranteed by the Constitution with their own subjective beliefs (¶13). The Supreme Court stated that ensuring the fundamental rights and dignity of intimate partners and LGBTQ+ community members in illegal detention is essential (¶17).

The concept of ‘family’ is not limited to natal family

The Supreme Court framed the guidelines related to the writ of habeas corpus

Prepared by Sandhya (Intern)

Centre for Research and Planning, Supreme Court of India

Judgement Summaries are prepared to help promote a better understanding of the decisions of the Supreme Court of India. They do not form part of the Court's decision or reasons and are not for use in legal proceedings.

JAVED AHMAD HAJAM V. THE STATE OF MAHARASHTRA2024 INSC 187 (7 March 2024)

Justice Abhay S. Oka and Justice Ujjal Bhuyan

Whether the criminal proceedings initiated against the Appellant for his WhatsApp status criticising the abrogation of Article 370 of the Constitution and wishing Happy Independence Day to Pakistan should be extinguished.

(i) “August 5 – Black Day Jammu & Kashmir.” & “14th August – Happy Independence Day Pakistan.”

(ii) “Article 370 was abrogated, we are not happy.”

A First Information Report (“FIR”) was registered against the Appellant for posting these WhatsApp status under Section 153-A of the Indian Penal Code, 1860 (“IPC”). Section 153-A of IPC provides for punishment for promoting enmity between different groups on grounds such as religion, race, place of birth, residence, language and doing acts prejudicial to the maintenance of harmony.

The Appellant filed a writ petition in the Bombay High Court to quash the FIR. The High Court refused to quash the FIR. The Appellant approached the Supreme Court.

Ingredients of Section 153-A IPC not fulfilled

The Supreme Court noted that the intention to cause disorder or provoke people to violence is a necessary ingredient to commit the offence under Section 153-A IPC (¶6). The Court found that the words used by the Appellant did not reflect any intention to cause disharmony between two groups (¶10). The Court further noted that the words used by the Appellant in his WhatsApp status did not refer to any religion, race, place of birth, residence, language, caste or community (¶9).

Reasonable man standard

The Supreme Court stated that the status of the Appellant was intended to criticise the action of the Union Government which abrogated Article 370 of the Constitution of India (¶9). The Court held that the Constitution of India, under Article 19(1)(a), guarantees freedom of speech and expression which includes the right to criticise the action of abrogation of Article 370 or, for that matter, any decision of the State (¶9). The Court noted that if every criticism or protest of the actions of the State is to be held as an offence under Section 153-A, democracy will not survive (¶10).

Right to extend good wishes to the citizens of the other countries

With respect to the WhatsApp status wishing Happy Independence Day to Pakistan, the Supreme Court held that every citizen has the right to extend good wishes to the citizens of the other countries on their respective independence days (¶12). The Court noted that it’s a gesture of goodwill and harmful motives cannot be attributed to the appellant only because he belongs to a particular religion (¶12).

Prepared by Priyanka Singh

Centre for Research and Planning, Supreme Court of India

SITA SOREN V. UNION OF INDIA2024 INSC 161 (4 March 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Ajjikuttira S. Bopanna, Justice M. M. Sundresh, Justice Pamidighantam S. Narasimha, Justice Jamshed B. Pardiwala, Justice Sanjay Kumar, Justice Manoj Misra

Does a legislator enjoy immunity from prosecution under Article 105(2) or Article 194(2) of the Constitution of India for accepting bribes to vote in Parliament or a State Legislative Assembly?

In 2012, the Election Commission of India released a notification to fill up two vacant seats in the Rajya Sabha from Jharkhand. The election was stopped as evidence emerged that the integrity of the election had been compromised. A CBI investigation found that the Petitioner, a member of the Jharkhand Legislative Assembly, had demanded a payment of ?50 lakh from a Rajya Sabha candidate for proposing his nomination and an additional ?1 crore for voting in his favour, which was duly paid. The Petitioner was charged with bribery and criminal conspiracy under Sections 171E and 120B of the Indian Penal Code, 1860 respectively, and criminal misconduct under Section 13(1)(d) of the Prevention of Corruption Act, 1988. Crucially it emerged that while Petitioner was accused of receiving a bribe from one candidate for casting her vote in his favour, she had instead voted in favour of another candidate.

In the Jharkhand High Court, the petitioner sought to quash proceedings against her by relying on the Constitution Bench (five judges) decision in P. V. Narasimha Rao v. State [1998 INSC 185] (“P.V. Narasimha Rao”). In P.V. Narasimha Rao, few Members of Parliament were accused of accepting bribes to vote against a no-confidence motion in Lok Sabha and the Supreme Court held that the immunity from criminal prosecution provided to parliamentarians (under Art. 105(2) of the Constitution of India) extended not only to anything said or any vote given but also to acts connected to a speech or vote in the Legislature. On 17 February 2014, the Jharkhand High Court rejected the plea to quash proceedings against the Petitioner. The Petitioner subsequently appealed to the Supreme Court, where the correctness of the judgment in P.V. Narasimha Rao was questioned. Therefore, the Petitioner’s case was referred to a Seven Judge Bench.

The Petitioner contended that the P.V. Narasimha Rao judgment was correct, as it was crucial for safeguarding legislators from coercion. They highlighted the importance of providing absolute protection to legislators for actions done in the course of their legislative duties. The Respondents (Union of India) contended that this immunity shouldn't cover activities that disrupt the legislative process or involve bribery, as such behaviour has no room in a functioning democracy.

The Supreme Court unanimously held that legislators are not entitled to immunity under Articles 105(2) and 194(2) of the Constitution of India for engaging in acts of bribery. This Seven Judge Bench overturned the judgment in P.V. Narasimha Rao.

The Supreme Court established a dual criterion for determining when lawmakers could be granted immunity under Articles 105(2) and 194(2) of Constitution: first, immunity applied when the activity pertained to a collective function of the legislature, and secondly, the action in question must be inherently linked to the fulfilment of the duty of a legislator. The judgment was authored by Chief Justice D.Y. Chandrachud.

Parliamentary Privileges in India

The Supreme Court held that Article 105(1) and (2) of the Constitution guarantees freedom of speech in Parliament, which is essential for the functioning of Parliament (¶65). The Court observed that Article 105(3) allows Parliament to legislate on immunities within constitutional limits (¶68). Without legislation, Parliament can claim only those immunities that the House of Commons (of the United Kingdom) possessed at the time of commencement of the Constitution of India, and the Parliament is not the sole judge to decide on its privileges (¶69). The Court held that Members of the House of Parliament or Legislature cannot claim any privilege or immunity unconnected with the functioning of the House (¶75).

Bribery is not protected by Parliamentary Privilege

The Supreme Court held that privileges of the House, its members, and Committees extend beyond specific locations or acts (¶99). Speeches made in Parliament or Legislature are immune from court proceedings (¶99). Articles 105 and 194 aim to foster fearless debate, free from third-party influence (¶104). While the majority in P.V. Narasimha Rao interpreted the phrase "in respect of" in Section 105 of Constitution broadly, linking it to anything related to votes or speeches by legislators, the Supreme Court in the present case disagreed, and restricted the scope of privileges to matters directly connected to votes or speeches (¶100).

The Supreme Court found that bribery undermines the core principles of democracy and is not immune under Article 105(2); members involved can face prosecution for bribery (¶¶104, 188.7). The Supreme Court clarified that bribery is not within the scope of parliamentary immunity (¶¶112-113). Such crimes don't relate to the essential functions of a legislator and can be prosecuted by a criminal court despite possible contempt proceedings by the House (¶113).

Stage at which offence of bribery crystallises

The Supreme Court held that the offence of bribery is committed upon the acceptance or agreement to accept money, regardless of whether the promised action is carried out (¶107). Bribery is deemed complete upon the exchange of illegal gratification, irrespective of how the legislator ultimately votes (¶188.11).

Prepared by Shambhavi Gupta

Centre for Research and Planning, Supreme Court of India

HIGH COURT BAR ASSOCIATION ALLAHABAD V. THE STATE OF UTTAR PRADESH2024 INSC 150 (29 February 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Abhay S. Oka, Justice Jamshed B. Pardiwala, Justice Pankaj Mithal, Justice Manoj Misra

(i) Can the Supreme Court of India order that all interim orders of the High Courts staying proceedings will automatically expire after a certain period? (ii) Can the Supreme Court of India direct High Courts to decide pending cases within a fixed timeframe?

In the case of Asian Resurfacing of Road Agency v. Central Bureau of Investigation (2018 INSC 282) (“Asian Resurfacing”) a Three Judge Bench of the Supreme Court of India was deciding whether an order of framing charges under the Prevention of Corruption Act, 1988 is interlocutory in nature and can be challenged before the High Court. In deciding this issue, the Court in Asian Resurfacing directed that when a High Court stays proceedings after deciding to hear a challenge to an order framing charges, the challenge must be decided on a day-to-today basis to avoid undue delay.

Further, the Court in Asian Resurfacing directed that in all pending cases before the High Courts, where a stay in a civil or criminal trial is operating, the case must be decided within a maximum period of six months. Failure to adhere to this timeframe would result in the automatic expiration of the stay, unless a reasoned order for extending the stay is passed. Absent such an order extending the stay, the Trial Court may resume proceedings without further notice.

On 1 December 2023, another three judge bench comprising Chief Justice Chandrachud, Justice Pardiwala and Justice Misra expressed doubts regarding the correctness of the broad formulations in Asian Resurfacing and referred the matter to a Constitution Bench (five judges) for reconsideration.

The Constitution Bench unanimously held that an automatic expiration of interim orders after a period of six months is impermissible. Further, the Court held that issuing blanket directions that the High Courts should hear all cases where interim stays are operating on a daily basis and decide them within a stipulated time frame was beyond the powers of the Supreme Court’s jurisdiction under Article 142 of the Constitution to do complete justice. The judgment of the Court was authored by Justice Oka, while Justice Mithal wrote a separate concurring opinion.

An interim order cannot come to an end automatically

The Supreme Court held that the principles of natural justice require that an order rescinding or modifying interim relief should only be passed after hearing the affected parties. The directions issued in Asian Resurfacing regarding the automatic expiration of interim stay orders passed by all High Courts does not take into account the merits of individual cases. There are many reasons why a High Court may be unable to hear a case at a particular time. If, without any application of mind, an interim order automatically expires and the litigant is not responsible for the delay, the litigant would suffer for no fault of their own and this would violate the basic tenets of justice (¶16, ¶4 J. Mithal).

Justice Mithal in his separate concurring opinion found that the stay order granted in any proceeding would not automatically expire after a certain period, unless the opposite side files an application for setting it aside. Further, a stay order once passed cannot be rescinded or varied unless a reasoned order is passed by the Court following the principles of natural justice (¶¶5,7 J. Mithal).

Scope of exercise of powers under Article 142 of the Constitution

The Supreme Court clarified that the directions issued in Asian Resurfacing were issued under Article 142 of the Constitution, a power which can be exercised only in extraordinary situations for doing complete justice between the parties before the Court. However, the question regarding the duration of the interim orders in various other proceedings apart from proceedings under the Prevention of Corruption Act, 1988 did not specifically arise for consideration before the Court in Asian Resurfacing (¶19).

Furthermore, the Supreme Court laid down the following guidelines for the exercise of its powers under Article 142 of the Constitution: (i) It cannot be exercised to nullify the benefits derived by a large number of litigants based on judicial orders validly passed in their favour; (ii) The Court cannot ignore the substantive rights of the litigants; (iii) The Court can issue directions to the Courts for streamlining procedural issues, however, the Court cannot affect the substantive rights of those litigants who are not parties to the case before it. The right to be heard before an adverse order is passed is a substantive right; and (iv) It must not defeat the principles of natural justice (¶22).

Blanket directions cannot be issued to limit the jurisdiction of High Court

The Supreme Court held that a High Court, being a constitutional court, is not judicially subordinate to the Supreme Court (¶23). It emphasized that the High Court's authority under Article 227 of the Constitution to have judicial superintendence over all the courts within its jurisdiction includes the power to stay proceedings in such courts (¶24). The Supreme Court further stated that imposing restrictions on the High Court's power to grant interim relief, such as limiting interim stay orders to six months, would impermissibly encroach on the High Court's powers under Article 226 (¶24).

Directions to decide pending cases in a time-bound manner should be issued only in exceptional circumstances

The Supreme Court emphasized that directions leading to the automatic expiration of stay orders and the day-to-day hearing of cases amounted to judicial legislation, which is impermissible. Only the legislature can provide that cases of a particular category should be decided within a specific time (¶28). The High Courts cannot be directed only to prioritize cases where stay orders are operating on a day-to-day basis. There may be other cases like criminal appeals or bail applications, which may require more attention (¶30). Each court has its own pattern of pendency and disposal and therefore, the concerned courts are best placed to decide the issue of what cases to prioritise. Thus, orders which set strict deadlines for disposing of a case should only be passed in exceptional circumstances (¶32).

Prepared by Vidhi Gupta

Centre for Research and Planning, Supreme Court of India

Case Summaries are prepared to help promote a better understanding of the decisions of the Supreme Court of India. They do not form part of the Court's?decision or reasons and are not for use in legal proceedings.

Link to Judgment (PDF)

Day 1 of Arguments: 13 December 2023 (Video Recording)

KULDEEP KUMAR V. U.T. CHANDIGARH2024 INSC 129 (20 February 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Jamshed B. Pardiwala and Justice Manoj Misra

Whether there was electoral malpractice in the conduct of elections for the post of Mayor to the Chandigarh Municipal Corporation on 30 January 2024?

According to Section 38 of the Punjab Municipal Corporation Act, 1976 (“Punjab Act”), the Chandigarh Municipal Corporation was required to elect one of its elected members as Mayor of the Corporation in its first meeting of the year. Section 60 of the Punjab Act provided that the Deputy Commissioner of the Union Territory of Chandigarh had to nominate a councillor, who was not a candidate to the election, to preside over the meeting. One of the Respondents, Mr. Anil Masih, a councillor who was not a candidate, was nominated as the Presiding Officer for the election meeting. It had been agreed between the Appellant and Respondents that the entire voting and election process would be video-recorded to ensure free and fair elections.

There were two candidates for the post of the Mayor. The first candidate was the Appellant, Kuldeep Kumar, who was jointly fielded by the Aam Aadmi Party (“AAP”) and the Indian National Congress (“INC”). The second candidate was Manoj Sonkar, who was set up by the Bharatiya Janata Party (“BJP”). There were a total of thirty-six voters eligible to vote in the election. The result sheet, signed by Anil Masih as the Presiding Officer of the election, indicated that of the thirty-six votes polled, eight votes were declared invalid, Kuldeep Kumar received twelve votes, and Manoj Sonkar received sixteen votes. On this basis, the Presiding Officer Anil Masih declared Manoj Sonkar elected as Mayor.

The Appellant Kuldeep Kumar immediately filed a writ petition before the High Court of Punjab and Haryana, challenging the election result and alleging electoral malpractices by the Presiding Officer Anil Masih during the counting of the votes. A Division Bench (two judges) of the High Court, in its interim order dated 31 January 2024, declined to stay the result of the election. The interim order of the High Court was challenged before the Supreme Court.

The Supreme Court set aside the result of the election as declared by the Presiding Officer, as it found that the eight invalid votes were, in truth, valid. Invoking its extraordinary power to do justice under Article 142 of the Constitution, the Court declared the Appellant, Kuldeep Kumar, as the validly elected Mayor of the Chandigarh Municipal Corporation.

Furthermore, the Court directed that a show cause notice be issued to the Presiding Officer as to why proceedings under Section 340 of the Criminal Code of Procedure, 1973 (“CrPC”) should not be instituted against him for making a false statement before the Court. Section 340 of the CrPC allows for a preliminary enquiry to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. The judgment of the Court was authored by Chief Justice Chandrachud.

Invalidity and Defacement of Ballot Papers

The Supreme Court examined the video recording of the voting and the eight ballot papers that were declared invalid, and found that all those purportedly invalid ballot papers had been cast in favour of the Appellant (¶26). In all those ballot papers, the Presiding Officer had himself drawn a line as a mark and claimed that mark as a ground to declare the ballots invalid (¶27).

The Supreme Court found that this was in violation of the Election Regulations framed by the Chandigarh Municipal Corporation, which provided only three cases in which a ballot could be declared invalid: (i) if a member voted for more than one candidate; or (ii) if a member placed any mark on the paper through which they could be identified; or (iii) if a mark indicating the vote is placed in such a manner that it creates doubt regarding the candidate for whom the vote was cast (¶28). The Court held that none of these circumstances were present in the case at hand (¶29). The Court concluded that none of the eight purportedly invalid ballots were, in fact, invalid and that the Presiding Officer had deliberately attempted to deface the ballots by placing his own mark on them (¶31). Accordingly, the Court found that the Presiding Officer had unlawfully altered the result of the Mayoral election and set aside the outcome of the election (¶¶32, 33).

Invocation of Article 142

During the course of the proceedings before the Supreme Court, Manoj Sonkar, who had been declared the Mayor on the basis of the election, resigned (¶34). The Respondents submitted that Section 38 of the Punjab Act required that in case of any vacancy in the Mayor’s office, the Chandigarh Municipal Corporation should elect one of its members as Mayor within one month (¶34). However, the Court found that it was inappropriate to set aside the entire election process when the only infirmity was at the stage of counting of the votes by the Presiding Officer (¶35). Recognizing its role in ensuring fair and free elections to maintain trust in democracy (¶36), the Court invoked its powers under Article 142 of the Constitution to hold that the Appellant, Kuldeep Kumar, had twenty votes once the ballots that had wrongly been invalidated were counted. It therefore declared the Appellant as the elected Mayor of the Chandigarh Municipal Corporation (¶¶38, 39).

False Statement of Presiding Officer

The Supreme Court saw the video recording of the counting process which showed the Presiding Officer signing all the ballot papers and also placing certain marks on some of the ballot papers (¶20). The Court ordered that the Presiding Officer present himself appear before the Court to explain his conduct (¶14). The Presiding Officer claimed before the Court that he had signed and put an ink mark declaring eight of the ballots to be invalid, as he found that those ballots had been defaced (¶15).

The Supreme Court found that the Presiding Officer had knowingly made a false statement before the Court regarding his actions in defacing the ballot papers in order to declare them invalid (¶40). This statement was proven to be false in light of the video recordings showing the acts of the Presiding Officer during the counting of votes. Thus, the Court directed the Supreme Court Registry to issue notice to the Presiding Officer, Anil Masih, as to why Section 340 of the CrPC should not be invoked against him (¶41).

Prepared by Thejaswi Melarkode

Centre for Research and Planning, Supreme Court of India

Link to Judgment (PDF)

ASSOCIATION FOR DEMOCRATICS REFORMS V. UNION OF INDIA2024 INSC 113 (15 February 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Sanjiv Khanna, Justice Bhushan R. Gavai, Justice Jamshed B. Pardiwala, Justice Manoj Misra

(i) Whether the non-disclosure of funding to political parties under the Electoral Bond Scheme violates voters’ right to information? (ii) Whether unlimited corporate funding to political parties interferes with free and fair elections and equality?

The Finance Act, 2017 (“Finance Act”) amended the provisions of the Representation of the People Act, 1951 (“RP Act”), the Income Tax Act, 1961 (“IT Act”), and the Companies Act, 2013 (“Companies Act”).

Section 29C of RP Act was amended to allow political parties to not disclose campaign contributions received through electoral bonds. Section 182(3) of Companies Act was amended to allow companies to not disclose details of political contributions made by them. Section 182(1) of Companies Act, which provided a cap on political funding by companies, was removed to allow unlimited corporate funding. The provision also previously restricted the companies’ contributions to their profits, but the amendment allowed even loss making companies to donate. Section 13A of IT Act was amended to allow political parties to not maintain a record of contributions received by electoral bonds.

In January 2018, the government introduced the Electoral Bond Scheme, 2018. Under this Scheme, the State Bank of India (“SBI”) was authorised to sell Electoral Bonds in denominations of ?1,000, ?10,000, ?1,00,000, ?10,00,000, and ? 1,00,00,000. The Bonds allowed the identity of the purchaser to remain anonymous to everyone, except the SBI, who recorded the buyer’s Know Your Customer (“KYC”) details. The buyer of the Bond would then give the bond to a political party they wished to donate to. The Bonds would then be encashed by the political party.

The Petitioners challenged the constitutional validity of the Electoral Bond Scheme and the amendments made by the Finance Act arguing that they prevented voters from knowing who was donating to political parties and legitimised electoral corruption between donors and parties. The Union of India argued that Electoral Bonds were introduced for the purpose of curbing black money in electoral financing. The donors to a political party often apprehended retribution from other political parties (that they did not donate to). Such apprehension incentivized donors to contribute unaccounted money to political parties outside of formal banking channels. The Union argued that the Electoral Bond Scheme maintains the confidentiality of donors and thereby incentivizes them to contribute clean money to political parties through recognised banking channels.

The Supreme Court held that the Electoral Bond Scheme, 2018 and the amendments made by the Finance Act to Section 29C of the RP Act, Section 182(3) of the Companies Act and Section 13A(b) of IT Act are unconstitutional. The Court also held the deletion of the proviso to Section 182(1) of the Companies Act permitting unlimited corporate contributions to political parties even for loss making companies is arbitrary and violative of Article 14. The judgment of the Court was authored by Chief Justice (Dr.) Dhananjaya Y. Chandrachud. Justice Sanjiv Khanna wrote a concurring but separate opinion.

The Supreme Court also directed that SBI shall submit to the ECI by 6 March 2024: (i) details of the Electoral Bonds purchased from 12 April 2019 till date, to the Election Commission of India (“ECI”). The details shall include the date of purchase of each Bond, the name of the purchaser and the denomination of the Bond purchased; and (ii) details of political parties which have encashed Electoral Bonds since 12 April 2019 to date to the ECI including details of each Electoral Bond encashed by political parties, the date of encashment and the denomination of the Electoral Bond.

The Court directed the ECI to publish the information shared by SBI on its official website within one week from the receipt of the information (by 13 March 2024).

Close association of politics & money

The Supreme Court noted that finance is crucial for electoral politics (¶46). Expenditure on political campaigns affects voting behaviour because of the impact of television advertisements, campaign events, and personal canvassing (¶48). The Court noted money also creates an entry barrier to politics by limiting the nature of candidates who can contest elections (¶50).

Voter’s right to information

The Supreme Court held that the action of voting is a form of expression protected by Article 19(1)(a)(Freedom of Speech and Expression) (¶71). The Court noted that the voters have a right to information that would allow them to cast their votes rationally and intelligently (¶77), and this includes the right to information about candidates (¶79). The Court held that this right to information extends to political parties as well, as they are a relevant political unit in the democratic electoral process (¶94) and voters associate candidates with the ideologies of their respective parties (¶89).

The Supreme Court observed that an economically affluent person has a higher ability to make financial contributions to political parties, and there is a legitimate possibility that financial contributions to a political party could be exchanged for political favours such as introducing a policy change (¶100). The information about political funding would enable a voter to assess if there is a correlation between policy making and financial contributions (¶100).

Test of proportionality

The Supreme Court relied on the proportionality test to determine if the restriction on the fundamental right of right to information of voters is justified. The Court held that a measure restricting a fundamental right must have a “legitimate goal”, it must be a “suitable means” of reaching that goal, it must be the least restrictive measure, and must not have “a disproportionate impact” on the rights holder (¶105).

The Supreme Court noted that a stated goal of the Electoral Bonds Scheme was to protect the donor’s privacy (¶131). The Court held that the citizens have informational privacy over their political beliefs. Information about a person’s political beliefs deduced through their political donations, can be used by both public and private actors to suppress dissent, discriminate, or harass individuals based on their political views (¶131).

The Supreme Court observed that Section 29C of the RP Act mandates disclosure of information of contributions beyond ?20,000 in one financial year (¶165). The rationale of Section 29C(1) is that smaller donations (upto ?20,000) made by individuals do not have the ability to influence policy decisions and thus, the right to privacy of donors outweighs the public's right to information. But in the case of larger donations that may influence policy, the right to information of the public outweighs the right to privacy of the donor (¶167).

Applying the proportionality test, the Supreme Court found that the Electoral Bonds Scheme did not balance fundamental right to information of voters with informational privacy of donors. The Scheme completely tilted the balance in favour of the purpose of informational privacy and underserved the informational interests of voters (¶168).

The Supreme Court also held that political parties in power may have additional access to information regarding donations, and thus the privacy of donors can be breached. Thus, the entire objective of the Scheme is contradictory and inconsistent (¶128, ¶73 J. Khanna).

Justice Khanna in his separate opinion held that the claim of privacy by a company would be restricted to the extent of protecting the privacy of individuals responsible for conducting the business of the company (¶73 J. Khanna). Since the affairs of a company have to be open to the shareholders and the public who interact with the body corporate, it is very difficult to claim a violation of privacy by such a body corporate (¶73 J. Khanna).

The Supreme Court applied the proportionality test and noted that there are other alternatives to curb black money which are less restrictive to the voter’s right to information such as the Electoral Trusts provided under Section 2(22AA) of the IT Act (¶121). In an Electoral Trust details of both the political parties and the contributor are maintained and provided to the income tax authorities, but which contributor has donated what and how much amount to which political party is not disclosed, thus balancing the privacy of donors and right to information of voters (¶¶121-122). Further, the RP Act mandates disclosure by Political Parties only of contributions of more than ?20,000 in a financial year. So, for contributions less than ?20,000 thousand, there is already anonymity under the law (¶124).

The Supreme Court concluded that on an overall assessment, for contributions below ?20,000, contributions through other means of electronic transfer is a less restrictive means. For contributions above ?20,000, contributions through Electoral Trust is a less restrictive means. Hence, the Electoral Bonds Scheme is not the least restrictive means to achieve the purpose of curbing black money in the electoral process (¶129).

Constitutionality of unlimited corporate funding

The Supreme Court noted that Proviso of Section 182(1) of the Companies Act (before it was amended by the Finance Act, 2017) limited the contributions by companies for political purposes to seven and a half percent of its average net profits in the preceding three years (¶178). The Finance Act, 2017 removed the proviso and allowed unlimited contributions by companies to political parties and also, by removing the net-profit requirement, allowed even loss making shell companies to donate to political parties(¶178).

The Supreme Court noted that the main reason for corporate funding of political parties is to influence the political process which may in turn improve the company’s business performance (¶210). Unlimited contribution by companies to political parties is against free and fair elections because it allows companies to use their resources to influence policy making (¶210). The Supreme Court held that the amendment to Section 182 is manifestly arbitrary as it places a profit-making company and a loss-making company at an equal footing and also a corporate and an individual on an equal footing without realising that the degree of harm arising from donations is higher in case of companies and specially loss-making companies (¶214).

Justice Sanjiv Khanna in his separate opinion held that the invalidity of amendments to Section 182 of the Companies Act, which allowed unlimited donations, was more properly analysed using the proportionality standard than the manifest arbitrariness standard as the proportionality test ensures reasonableness (¶73 J. Khanna).

Prepared by Priyanka Singh

Centre for Research and Planning, Supreme Court of India

BILKIS YAKUB RASOOL V. UNION OF INDIA2024 INSC 24 (8 January 2024)

Justice B.V. Nagarathna and Justice Ujjal Bhuyan

Question(s): (i) Whether a Writ Petition filed by the victim against the remission of convicts is maintainable under Article 32 of the Constitution? (ii) Whether public interest litigation (“PIL”) petitions can be filed against orders of remission of prisoners by the government? (iii) Whether the State of Gujarat was competent to pass the disputed orders of remission? and (iv) Whether the disputed orders of remission passed by the State of Gujarat releasing the convicted-accused (“convicted-Respondents”) were in accordance with the law?

The Petitioner was gang-raped by the convicted-Respondents during communal riots in Gujarat. The initial police complaint was filed in Gujarat. But the Gujarat police investigation concluded that the perpetrators of the crimes could not be traced and closed the case. The Petitioner challenged the closure of the case before the Supreme Court. The Supreme Court reopened the case and transferred the investigation to the Central Bureau of Investigation (“CBI”). The CBI investigated the case and charged twenty persons with the crime of committing rape, murder and rioting with deadly weapons.

The Supreme Court transferred the case for trial from Gujarat to a court in Mumbai, Maharashtra. Eleven of the accused persons were eventually convicted in 2008 by the Mumbai Trial Court for various offences including murder and gang-rape under the Indian Penal Code, 1860, and sentenced to life imprisonment. The Bombay High Court and then the Supreme Court of India upheld their convictions.

After serving fourteen years of their sentence of life imprisonment, the convicted-Respondents filed applications before the Gujarat High Court for remission (premature release) under Sections 432 and 433A of the Criminal Procedure Code, 1973 (“CrPC”). The High Court found that the appropriate government to exercise the power of remission would be the State of Maharashtra, not Gujarat, since the convicts were convicted and sentenced in Maharashtra.

While his remission application was pending before the authorities in the State of Maharashtra, one of the convicts filed a Writ Petition before the Supreme Court seeking the Court to direct the State of Gujarat to consider his remission application under its 1992 remission policy which was applicable when the crime was committed. The Supreme Court, in this case of Radheshyam Bhagwandas Shah vs. State of Gujarat (“Radheshyam Shah case”) passed an order on 13 May 2022 directing that under Section 432 of the CrPC, the appropriate government to consider the remission application would be the State in which the offence was committed and not the one where the trial was conducted. It ordered the State of Gujarat to consider the application for remission.

The State of Gujarat accepted the remission application of all eleven convicted-Respondents. Following the approval of the Home Ministry of the Government of India, the Government of Gujarat passed the orders for remission of all eleven convicts on 10 August 2022. These remission orders were challenged by multiple petitions before the Supreme Court of India, including by the Petitioner-victim.

The Supreme Court held that the Writ Petition filed by the Petitioner before the Supreme Court under Article 32 was maintainable. Because the Petitioner-victim’s Writ Petition was held to be maintainable, the Court did not answer the question on whether PIL petitions can be filed by other citizens to challenge remission orders. The Court found that the Government of Gujarat was not competent to pass the remission applications in favour of the convicted-Respondents. Therefore, the Supreme Court quashed the orders granting remission to the eleven convicts as illegal. The Supreme Court observed that the order in the Radheshyam Shah case directing the Government of Gujarat to consider the remission application was legally invalid because it was obtained by fraud. The judgment of the Court was unanimous and was authored by Justice Nagarathna.

The eleven released convicts were directed to report back to concerned jail authorities within two weeks.

Maintainability of the Writ Petition filed in the Supreme Court

Jurisdiction of the State of Gujarat

Remission is the reduction in the period of sentence for an offence without changing its character. Here, the guilt of the offender and the sentence imposed by the court are not disputed, the only question is whether the convict should remain in prison for the entirety of their sentence (¶30.1). Section 432(1) of the CrPC says that if a person is sentenced to punishment for an offence, then the ‘appropriate government’ may remit the whole (or part) of the person’s sentence.

Section 432(7) of the CrPC defines ‘appropriate government’ i.e., which State government had jurisdiction to pass the remission orders (¶33). The Supreme Court observed that Section 432(7) says that the ‘appropriate government’ will be the Government of the State in which the offender is sentenced (¶33.4). The State in whose territory or jurisdiction the offence took place or where the convict is imprisoned is not relevant (¶33.6). Since the convicts were sentenced by the Trial Court in Mumbai, it was the Government of Maharashtra which had the jurisdiction to consider the remission applications (¶33.8). Thus, the Court held that the Government of Gujarat had no authority to pass the remission orders under Section 432 and the orders were illegal (¶33.9).

The Supreme Court found that the previous order of the Supreme Court in the Radheshyam Shah case, which directed the State of Gujarat to decide the remission applications of the convicts, was not the correct law and was contrary to previous judgments of the Supreme Court (¶36.4). Moreover, the Court found that the convict who approached the Supreme Court in this case committed fraud on the Court by suppressing material information including the fact that the State of Gujarat’s 1992 remission policy had been cancelled and that his remission application was already being processed by the State of Maharashtra following the order of the Gujarat High Court (¶¶36.1, 41). On this basis, the Court held that the previous order of the Supreme Court in the Radheshyam Shah case was not legally valid (¶46).

Legality of remission orders

The Supreme Court also found that the Government of Gujarat abused its discretion by usurping the remission powers vested in the Government of Maharashtra under Section 432(7) of the CrPC (¶50). The Court criticised the Government of Gujarat for its failure to file a review petition seeking correction of the previous order of the Supreme Court in the Radheshyam Shah case which had wrongly interpreted the law on remission (¶50.2). On this ground, the remission orders were also declared illegal and struck down (¶50.5).

Conditions for Remission Applications

Final orders and observations on the rule of law

The Supreme Court recognised that the convicted-Respondents had been granted freedom by illegal remission orders that violated the law (¶59). However, the convicts had prayed that the Court exercise its inherent powers under Article 142 of the Constitution to ‘protect their liberty’ (¶59). The Court observed that a person is only entitled to freedom and liberty in accordance with the law (¶60). The rule of law could not be violated to protect the liberty of convicts who had abused the process of law in obtaining remission (¶69). The Court, thus, ordered the eleven convicts to report back to jail within two weeks (¶70).

Prepared by Thejaswi Melarkode

Centre for Research and Planning, Supreme Court of India

VISHAL TIWARI V. UNION OF INDIA2024 INSC 3 (3 January 2024)

Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Jamshed B. Pardiwala, Justice Manoj Misra

(i) What is the scope of judicial review over the regulatory functions of the Securities and Exchange Board of India (“SEBI”)? (ii) Whether the Supreme Court should transfer the investigation into the Adani Group from SEBI to a Special Investigation Team (“SIT”).

On 24 January 2023, the American investment research firm Hindenburg Research published a report accusing the Adani Group of companies of violating SEBI regulations, manipulating stock prices, and failing to disclose critical financial information. This report led to a significant decline in the share price of Adani Group of companies and consequently an erosion of investor wealth.

Several petitions were filed before the Supreme Court concerning the need to protect investors from market shocks and investigate the Adani Group. The Court in its order dated 2 March 2023, directed SEBI to investigate the allegations of potential regulatory violations by the Adani Group. An expert committee was also established to assess the situation and recommend measures to enhance investor protection.

The Petitioners sought to cancel certain amendments made to SEBI (Foreign Portfolio Investments) Regulations, 2014 and the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (“SEBI Regulations”) and requested the formation of a SIT to oversee the investigation. On 6 May 2023 the expert committee submitted its report and SEBI filed a status report on 25 August 2023. As on date of the judgment, SEBI had completed twenty two out of the twenty four investigations.

The Supreme Court observed that the Court cannot act as an appellate authority to assess the correctness of policies formulated by statutory regulators like SEBI (¶¶15, 17). Judicial review is limited to assessing whether a policy violates fundamental rights, constitutional provisions, statutory laws, or is manifestly arbitrary. The Court further held that in technical areas, particularly economic and financial matters, courts should defer to the expertise of regulators who have considered expert opinions in formulating their policies (¶17).

The Supreme Court upheld SEBI’s regulations, stating that the agency had properly explained the evolution and rationale behind its regulatory framework and that the procedures followed were not illegal or arbitrary (¶28).

The Supreme Court found no evidence of regulatory failure by SEBI in its investigation into the Adani Group (¶36). The Court observed that its authority under Article 32 and Article 142 of the Constitution to transfer investigations should be used sparingly and only in extraordinary circumstances. The Court cannot intervene unless the investigating authority shows clear, willful, and deliberate inaction in conducting the investigation (¶32).

Prepared by Benila B M

Centre for Research and Planning, Supreme Court of India

Link to Judgment (PDF)

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