Supreme Court Weekly Roundup [Jan 18 – Jan 24]

1. Supreme Court Dismisses Review Petitions Challenging Aadhaar Verdict, Justice Chandrachud Dissents [Beghar Foundation v. Justice K.S. Puttaswamy (Retd.)]

The Supreme Court, by 4:1 majority, has dismissed a batch of review petitions challenging the judgment of the Constitution Bench in Aadhaar case [Puttaswamy (Aadhaar-5J.) v Union of India]. While Justices AM Khanwilkar, Ashok Bhushan, S. Abdul Nazeer and BR Gavai observed that no case for review of judgment, Justice DY Chandrachud expressed his dissent.

The review petitions were not heard in open court, but 'by circulation'. According to majority, a change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. On the other hand, Justice Chandrachud opined that the review petitions should be kept pending until the larger bench decides the questions referred to it in Rojer Mathew.

Also Read: Constitutional Error To Hold At This Stage That No Ground Exists To Review Aadhaar Verdict: Justice Chandrachud Dissents

2. Supreme Court Issues Notice On Plea For Reconstitution Of Committee To Resolve Deadlock Between Farmers and Govt

A Bench led by CJI SA Bobde issued notice on an application seeking re-constitution of the Committee appointed by the Top Court for the purpose of holding talks between the Central Government and the farmers for a resolution of the protests due to the three contentious farm laws. The Court noted that there is a vacancy in the committee following the resignation of BS Mann.

The Bench however expressed dissatisfaction at the manner in which unnecessary aspersions were cast on the Committee members and said that the Supreme Court does not appreciate branding people like this. It observed that the Committee members are experts in the field of agriculture and merely because they have expressed opinions in different context doesn't amount to their disqualification.

Also Read: Just Because A Person Has Expressed Views On A Matter, It Does Not Disqualify Him From Being A Member Of A Committee: CJI Bobde

Also Read: 'They Are Brilliant Minds; Why Malign Them For Their Views?' : CJI On Criticism Against Farm Laws Committee

Also Read: "Farmer Unions Will Not Appear Before Committee, They Are Totally Convinced That Farm Laws Need To Be Repealed": Dave, Bhushan Tell Supreme Court

3. 'You Are At Liberty To Invoke All Powers Under Law' : Supreme Court Tells Centre On Plea To Stop Tractor Rally

A Bench led by CJI SA Bobde told the Delhi Police that it is the 'first authority' to decide whether protesting farmers can be granted entry into the national capital or not. "The question of entry into Delhi is a law and order situation that is to be determined by the police…whether who should be allowed and who should not be allowed and the number of people who can enter are all matters of law and order to be dealt with the by the police. We are not the first authority. You are at liberty to invoke all powers under the law," the CJI told the Attorney General.

The observation was made by while hearing an application filed by the Delhi Police seeking for an injunction against the tractor rally proposed to be carried out by farmers in Delhi on the Republic Day to show their protest against the contentious farm laws.

Also Read: "We Will Not Pass Orders, You Withdraw It":Supreme Court Allows Centre To Withdraw Plea To Restrain Farmers' Tractor Rally On Republic Day

4. 'We Also Want To Get Back To Action': Supreme Court Expresses Intention To Reassess Possibility Of Physical Hearings

A Bench headed by the Chief Justice of India expressed an inclination to reassess the possibility of resuming physical hearings. He observed that the Court is eager to "go back to action", however, the same would be done only after taking into account the opinion of health authorities.
The Court was presiding over two pleas challenging the decision of the Delhi High Court to resume large-scale physical hearing before itself and subordinate courts in Delhi with effect from January 18, without giving a choice to lawyers to appear via the virtual mode.

Also Read: 'We Trust That The Chief Justice Of Delhi HC Will Do The Needful' : SC Disposes Of As Withdrawn Lawyers' Pleas Against Physical Hearings In Delhi

Also Read: Delhi High Court Modifies Office Order, Allows Lawyers To Appear Either By Physical Or Virtual Mode

5. 'Pre-Litigation Mediation May Not Be Feasible': Supreme Court Asks NALSA To Consider Post-Cognizance Mediation Of Cheque Bounce Cases U/ S 138 NI Act [In Re Expeditious Trial of Cases Under Section 138 of the NI Act]

A Bench led by CJI SA Bobde observed that NALSA's recommendations on pre-litigation mediation for settlement of cheque bounce cases under Section 138 of the Negotiable Instruments Act, 1881 may not be feasible. Taking into account the issues relating to limitation in pre-litigation process, it directed the Authority to consider "post-cognizance mediation" in such cases.

The direction was made in the suo moto case on expeditious trial of cheque dishonour cases under Section 138 of NI Act, to reduce high level of pendency relating to those cases. Amicus curiae Sr Adv Siddharth Luthra submitted before the Bench that pre-litigation mediation under the draft scheme prepared by NALSA can take place only after cognizance, as the NI Act provides strict statutory time limits for issuing notice, reply etc.

Judgments This Week:

1. Supreme Court Upholds Sections 3, 4 & 10 Of IBC Amendment Act 2020 [Manish Kumar v. Union of India]

A bench comprising Justices RF Nariman, Navin Sinha and KM Joseph upheld the constitutional validity of Sections 3, 4 and 10 of the Insolvency and Bankruptcy Code (Amendment) Act 2020, in effect upholding the threshold limit on homebuyers.

The Court rejected the petitioners' contentions that such conditions on homebuyers amounted to hostile discrimination violating the equality principle under Article 14 of the Constitution. The Court held that a homebuyer, though treated as an unsecured creditor as per the judgment in Pioneer case, stands on a different footing from other creditors.

Also Read: Minimum Threshold For Homebuyers' Insolvency Process Against Builder Shields Frivolous & Avoidable Applications : Supreme Court

Also Read: 'Malice' Is Not A Ground To Challenge A Law Made By Legislature : Supreme Court

Citation: LL 2021 SC 25

2. Prescription Of Higher Educational Qualification As A Qualification For Promotion Is Not Unconstitutional: Supreme Court [Ashok Kumar v. State Of Jammu & Kashmir]

A bench comprising of CJI SA Bobde, Justices AS Bopanna and V. Ramasubramanian held that prescription of a Higher educational qualification as a qualification for promotion to a post cannot be held as violative of Articles 14 and 16 of the Constitution. It observed thus while setting aside a Judgment of the Jammu and Kashmir High Court which quashed an administrative Order of the Chief Justice prescribing certain qualifications for promotion to the post of Head Assistant.

One of the reasons for quashing given by the High Court was that all persons working as Senior Assistants constituted a homogenous group and hence there cannot be any differentiation among them on the basis of educational qualifications. The Apex Court referred to a 1968 Constitution Bench Judgment viz. State of Mysore & Anr. v. P. Narasinga Rao AIR 1968 SC 349, in which it was observed that Article 16(1) does not bar a reasonable classification of employees or reasonable test for their selection.

Citation: LL 2021 SC 23

3. Benefit Of Probation (PO Act) Is Not Excluded By Mandatory Minimum Sentences Prescribed For IPC Offences: Supreme Court [Lakhvir Singh v. State Of Punjab]

A bench comprising Justices Sanjay Kishan Kaul and Hrishikesh Roy observed that the benefit of probation under Probation of Offenders Act, 1958 is not excluded by the provisions of the mandatory minimum sentence prescribed for offences under IPC.

In the facts of the case, the Court observed that Section 4 of the Act could come to the aid of the accused as the offence committed, of which they have been found guilty, is not punishable with death or imprisonment for life. The court also added that since they were under 21 years of age on the date of the offence and not on the date of conviction, Section 6 would not come to their aid.

Citation: LL 2021 SC 27

4. Segmentation Of A (National Highway) Project As A Strategy To Avoid Environmental Clearance Impermissible : Supreme Court [NHAI v. Pandarinathan Govindarajul]

A bench comprising of Justice L. Nageswara Rao, Hemant Gupta and Ajay Rastogi held that there is no requirement for obtaining environmental clearances for NH 45-A Villuppuram -Nagapattinam Highway, as land acquisition is not more than 40 meters on existing alignments and 60 meters on realignments or by passes. Thus, allowing the appeal filed by National Highway Authority of India, the Bench set aside the Madras High Court judgment which had held that it is necessary.

The court also observed that adoption of segmentation of a project cannot be adopted as a strategy to avoid environmental clearance impact assessment. The bench therefore directed the Ministry of Environment, Forest and Climate Change, Government of India to constitute an Expert Committee to examine whether segmentation is permissible for National Highway projects beyond a distance of 100 kms and, if permissible, under what circumstances.

Citation: LL 2021 SC 26

5. Only Wilful And Deliberate Disobedience To Court's Order Amounts To Contempt: Supreme Court [Rama Narang v. Ramesh Narang]

A bench comprising Justices AM Khanwilkar and BR Gavai observed that before punishing a person for non-compliance of the decision of the Court, the Court must not only be satisfied about the disobedience of any judgment, decree, direction, writ or other process but should also be satisfied that such disobedience was wilful and intentional.

The bench observed that a person does not commit contempt of court if during the pendency of certain proceedings, he takes recourse to other judicial proceedings open to him, even though the latter proceedings put the other party at a loss. The court added that the contempt proceedings are quasi-criminal in nature and the standard of proof required is in the same manner as in the other criminal cases.

Citation: LL 2021 SC 28

6. Rape Victim Also Suffers Discrimination From Society: Supreme Court Issues Directives To Jharkhand Administration In A Rape Victim's Plea [X v. State of Jharkhand]

A rape victim suffers not only a mental trauma but also discrimination from the society, the Supreme Court said while disposing a writ petition filed by a Rape Victim belonging to a Scheduled Tribe in Jharkhand.

Taking note of the fact that the identity of the rape victim in this case was disclosed by the media, resulting in a troublesome life for her, the bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah issued several directives to the State Government.

Access full report to read directions

Citation: LL 2021 SC 29

7. Criminal Court Exercising Bail Jurisdiction Is Not Expected To Act As Recovery Agent To Realize Dues Of Complainant: Supreme Court [Dilip Singh v. State of Madhya Pradesh]

A bench comprising Justices Indira Banerjee and Sanjiv Khanna observed that a criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant. It observed thus while setting aside a condition imposed by Madhya Pradesh High Court on an accused while granting him anticipatory bail.

he court said that factors to be taken into consideration, while considering an application for bail are the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations.

Citation: LL 2021 SC 31

8. Section 12(5) Of Arbitration & Conciliation Act Which Deals With Ineligibility Of Appointment As Arbitrator Is A Mandatory & Non- Derogable Provision: Supreme Court [Haryana Space Application Centre v. Pan India Consultants Pvt. Ltd.]

A bench comprising Justices L. Nageswara Rao, Indu Malhotra and Ajay Rastogi observed that the Section 12(5) of the Arbitration and Conciliation Act read with the Seventh Schedule, which deals with ineligibility of a person to be appointed as an Arbitrator, is a mandatory and non-derogable provision of the Act.

Section 12(5) of the Arbitration Act, 1996 (as amended by the 2015 Amendment Act) provides that notwithstanding any prior agreement to the contrary, any person whose relationship with the parties, or counsel, falls within any of the categories specified in the Seventh Schedule, shall be ineligible to be appointed as an arbitrator. Item 5 of the Seventh Schedule of the Act reads as follows : "Arbitrator's relationship with the parties or counsel. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration.

Citation: LL 2021 SC 33

9. Dismissal Of Workman By Employer Cannot Be Interfered With Merely Because Disciplinary Enquiry Was Not Conducted: Supreme Court [State Of Uttarakhand v. Sureshwati]

A bench comprising Justices L. Nageswara Rao, Navin Sinha and Indu Malhotra observed that dismissal of a workman by his/her employer cannot be interfered with merely on the ground that it did not conduct a disciplinary enquiry, if the latter could justify the action before the Labour Court.

Where an employer has failed to make an enquiry before dismissal or discharge of a workman, it is open for him to justify the action before the Labour Court by leading evidence before it, the Court said.

Citation: LL 2021 SC 34

10. High Court Exercising Bail Jurisdiction Cannot Pass Directions Which Will Have Direct Bearing Upon Trial: Supreme Court [Prashant Dagajirao Patil v. Vaibhav @ Sonu Arun Pawar]

A bench comprising Justice NV Ramana, Surya Kant and Aniruddha Bose observed that a High Court, while exercising bail jurisdiction, cannot issue directions which will have a direct bearing upon the trial. It observed thus while setting aside a direction of the High Court in a case, in which it directed the Investigating Officer to examine a CCTV footage and to submit a report.

Recently, in another case, the Supreme Court had observed that, a criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant.

Citation: LL 2021 SC 39

11. Deprivation Of Property Right Can Only Be In Accordance With The Procedure Established By Law: Supreme Court [Bajranga (Dead) By Lrs v. State Of Madhya Pradesh]

Deprivation of property right can only be in accordance with the procedure established by law, reiterated a bench comprising Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy while considering a case involving proceedings under Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960.

"In Section 11(4) it has been stated that in case the competent authority finds that any question has arisen regarding the title of a particular holder, which has not been determined by the competent court, the competent authority shall proceed to enquire summarily into merits of such question and pass such orders as it thinks fit. Thus, the power is vested with the competent authority to determine such conflict of the land holding. This is, however, subject to a proviso. The proviso clearly stipulates that if such a question is already pending for decision before the competent court, the competent authority shall await the decision of the court," the order stated.

Citation: LL 2021 SC 41

Important Updates:

1. TN Governor Will Decide Perarivalan's Pardon Within A Week, Supreme Court Told [AG Perarivalan v. State of Tamil Nadu & Anr.]

A bench comprising Justices L Nageswara Rao, S Abdul Nazeer and Indu Malhotra recorded the submission of the Central Government that the application filed by AG Perarivalan, convict in Rajiv Gandhi assassination case, will be considered within a week.

The writ petition was filed by Perarivalan, who was in death row for over two decades, aggrieved with the inaction of the Governor to decide on the recommendation made by the Tamil Nadu government in September 2018 to grant him pardon. The bench had earlier expressed unhappiness over the fact that the recommendation made by the Tamil Nadu state government for the remission of the sentence had been pending before the Governor for over two years.

Also Read: Rajiv Gandhi Assassination Case: Tamil Nadu Governor Will Decide On Perarivalan's Pardon With 3-4 Days, Centre Tells SC

2. Supreme Court Grants Bail To Kannada Actress Ragini Dwivedi In Sandalwood Drug Case

A Bench headed by Justice Rohinton F. Nariman granted bail to Kannada actor Ragini Dwivedi, who had been arrested by the police for allegedly consuming and supplying drugs at parties and events organized by her and others, and set aside a Karnataka High Court order wherein her bail plea was dismissed.

The Bench noted that Section 37 of the NDPS Act had been wrongly invoked by the Sessions Court and the High Court. It observed, "though Petitioner has been found violating certain sections of NDPS Act, prima facie if any offence has been made out, it can be said to be made out under Section 27(b) for consumption of certain drugs".

3. Supreme Court Issues Notice On Plea Challenging All India Bar Examination (AIBE) Rules

A bench headed by Justice AM Khanwilkar issued notice on a petition challenging the All India Bar Examination Rules 2010 framed by the Bar Council of India which mandate that an advocate has to qualify the All India Bar Examination (AIBE) to practice law after enrolment.

The plea questions the authority of the BCI to prescribe such a post-enrollment requirement for practice. It points out that the issue whether the Bar Council of India has the power to prescribe qualification of a pre-enrollment or post-enrollment exam as a condition to practice has been referred to the Constitution Bench by a three-judge bench on March 18, 2016 (SLP(c) 22337/2008). The reference is still pending.

4. 'Mirzapur Series Tarnished Historical & Cultural Image Of City' : Supreme Court Issues Notice To Centre, Amazon Prime Video On Plea For Ban [Sujeet Kumar Singh v. Union of India & Ors.]

In a plea seeking for ban on the Indian web series, "Mirzapur", a Bench headed by Chief Justice of India SA Bobde issued notice to Amazon Prime Video, Central Government, and Excel Entertainment, producer of the show.

The plea, filed by Sujeet Kumar Singh, a resident of Mirzapur, submits that the intent of the petition is to protect the historical and cultural value of the district of Mirzapur located in Uttar Pradesh, and that the web series, by showing vulgar and shameless scenes, attempts to mar the name of the city.

5. Plea For National Uniform Public Holiday Policy: Supreme Court Seeks Responses Of Centre, States

The Supreme Court sought the responses of the Governments of the Centre and the States on a PIL filed by "All India Shiromani Singh Sabha" seeking a uniform and non-arbitrary implementation of policy for declaring public holidays as against the "whims and fancies of various political groups".

The petitioner was primarily aggrieved by the fact that the birth anniversary of the 10th Sikh Guru, Guru Gobind Singhji's has yet not been declared a public holiday, although he is an important historic figure. The PIL stated that there was no legislation dealing with declaration of public holidays. However, in countries like New Zealand, the UK and the USA, the holidays were governed by the legislation.

6. "Whether Prosecution Sanction Required Even If Accused Was Not Holding The Office At The Time Of Taking Cognizance": Supreme Court Issues Notice In HD Kumaraswamy's Plea [HD Kumaraswamy v. State of Karnataka & Ors.]

A bench comprising Justices Ashok Bhushan and MR Shah issued notice on a SLP filed by HD Kumaraswamy limited to the question as to whether without sanction the Special Judge could have taken cognizance of a complaint under Prevention of Corruption Act. Challenging the Karnataka High Court judgment which dismissed his petition filed under Section 482 of CrPC, the JD (S) Leader had approached the Apex Court.

In this case, one MS Mahadeva Swamy filed a private complaint before the Special Judge seeking prosecution of HD Kumaraswamy and 18 others for corruption and land scam. Kumaraswamy's counsel contended that in view of the amendment made in Section 19(1)(b) of the Prevention of Corruption Act in 2018, a sanction was required even though the petitioner was not holding the office at the time when the cognizance was taken.

7. Who Is Liable To Pay Gratuity To Teachers Of Government Aided Schools? Supreme Court To Examine [Shri Gujrati Samaj v. State of Madhya Pradesh]

Who is liable to pay gratuity in case of Government aided schools under the Payment of Gratuity Act? The Supreme Court will examine this issue raised in a SLP filed against a Madhya Pradesh High Court judgment.

There appears to be contrary views of the Madhya Pradesh High Court and the Chhattisgarh High Court on the issue as to whose liability would it be to pay gratuity in case of Government aided schools under the Payment of Gratuity Act, 1972, the bench comprising Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy noted while issuing notice.

8. Supreme Court Calls For Report From NGT Appointed Committee On Yamuna River Pollution [Delhi Jal Board v. State of Haryana & Ors.]

A Bench comprising of CJI SA Bobde, Justice AS Bopanna and Justice V. Ramasubramanian called for a report from the committee constituted by the National Green Tribunal on the pollution of Yamuna river. It was hearing the suo moto case pertaining to the issue of "remediation of polluted rivers" and proceeded to direct for the report of an NGT-appointed Committee on river monitoring to be presented to the Bench. The Committee has also been impleaded in the suo moto case.

The issue of pollution of water resources and the deterioration in quality of fresh water led the Bench to take a suo moto action as being an issue of greater importance affecting general public and living beings including marine life.

9. Draft Rules Of Criminal Practice : Supreme Court Asks Registrar Generals Of High Courts To Appear If Response Not Given Within Two Weeks [In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials]

A bench comprising Chief Justice of India SA Bobde, Justices L Nageswara Rao and Vineet Saran directed that the High Courts should submit their responses through Registrar Generals within two weeks to the draft criminal rules prepared by Senior Advocates Sidharth Luthra and R Basant. The apex court further ordered that Registrar Generals of the High Courts which fail to submit the reports within the said time period will have to appear before the Supreme Court on the next hearing date.

The direction was passed by a in the suo moto case registered in view of the deficiencies in criminal trials, attributable to rules of criminal practice prevalent in many states. Therefore, the SC had asked the abovenamed Senior Advocates to submit a report on modifications on criminal rules of practice. They submitted 'Draft Rules of Criminal Practice' in March 2020, after holding consultations with various High Courts.

Also Read: SC Constitutes Committee To Submit Suggestions To Facilitate Timely Filing Of Appeals/Petitions By Convicts

10. Motor Accident Compensation : SC To Consider If Retrospective Pay Revision Of Govt Employee After Death Should Be Taken Into Account [Shyno M. Aykara v. New India Assurance Company Ltd.]

Whether pay revision applied retrospectively after the date of demise of a Government/public authorities employee is a factor taken into account while computing the monthly emoluments of the deceased for the purpose of determining compensation to him/her? The Supreme Court has issued notice in a special leave petition which raises this issue.

The SLP challenges the Kerala High Court judgment which held that a subsequent pay revision cannot be considered for fixing income of a victim. To hold thus, the High Court had relied on Oriental Insurance Co. Ltd. v. Jashuden and others [(2008) 4 SCC 162] in which it was observed that only because salary was revised at a later point of time, the same by itself would not have been a factor which could have been taken into consideration for determining the amount of compensation.

In appeal, it was contended before the Apex Court bench comprising Justice Sanjay Kishan Kaul and Hrishikesh Roy that the process of revision takes time in Government and public authorities. The petitioner also relied on Rajesh & Ors. v. Rajbir Singh & Ors. – (2013) 9 SCC 54 at 64, para 19 to contend that the subsequent pay revision was taken into account in the said case.

11. Supreme Court Issues Directions For Inter-State Virtual Recording Of Evidences Of Child Witnesses In Human Trafficking Cases [In Re : Contagion of COVID19 Virus In Children Protection Homes]

A bench comprising Justices L Nageswara Rao, Abdul Nazeer and Indu Malhotra issued directions for virtual recording of testimonies of child victims/witnesses of human trafficking who are required to depose in courts which are far away from the place of their residence in a different State.

The Directions are as follows: (i) record child victims' testimonies via video conferencing; (ii) States to give information about child witnesses of human trafficking cases; etc.

Access full report to read directions

12. "Whether 'Advocate On Record' Includes Sole Proprietary Firm?" Supreme Court Leaves The Question To SC Rule Making Authority [In Re: Advocate On Record Includes A Proprietary Firm Etc.]

In context of the 2013 Supreme Court Rules, a bench of Justices S. K. Kaul, Dinesh Maheshwari and Hrishikesh Roy left it to the Rule making authorities to examine whether they would like to expand the registration of Advocates on Record to permit persons to carry on the profession in the style and name of a sole proprietorship firm.

The Court was considering a suo motu writ petition on whether "Advocate on Record includes a proprietary firm". "Whether an AOR can have his entry in the AOR register in the form of his style of carrying on his profession: Instead of just "Name" as "Name", Sole Proprietor, Law Chambers of "Name"?", was the question framed. "The (Supreme Court) Rules being sacrosanct, we would not like to interfere with the same in the present proceeding", said the bench.