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Supreme Court Monthly Digest: June 2021 [Citation LL 2021 SC 263 To LL 2021 SC 278]

Aaratrika Bhaumik
18 July 2021 5:36 AM GMT
Supreme Court Monthly Digest: June 2021 [Citation LL 2021 SC 263 To LL 2021 SC 278]

1. 'Digital Divide Will Have Serious Implications On Right To Equality & Health': Supreme Court On CoWIN Portal [Case: Re Distribution of Essential Supplies and Services During Pandemic; Citation: LL 2021 SC 263]A Bench comprising Justices DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhatt flagged the digital divide afflicting the accessibility to the CoWIN portal...

1. 'Digital Divide Will Have Serious Implications On Right To Equality & Health': Supreme Court On CoWIN Portal 

[Case: Re Distribution of Essential Supplies and Services During Pandemic; Citation: LL 2021 SC 263]

A Bench comprising Justices DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhatt flagged the digital divide afflicting the accessibility to the CoWIN portal by stating that it could have serious implications on right to equality and right to health. It observed, "A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of the society who would bear the brunt of this accessibility barrier." The order also stated that it has been brought to the notice of the Court that the CoWIN platform is not accessible to persons with visual disabilities, and that the accessibility barriers should be addressed. The Court also opined that the CoWIN platform and other IT applications like Aarogya Setu should be made available in regional languages to increase accessibility. 

Also Read: How Rs 35000 Crores Budget Allocation Spent For Vaccines? Why Can't It Be Used To Vaccinate 18-44 Years Group? SC Asks Centre

Also Read: Centre's Policy Of Paid Vaccination For 18-44 Years Prima Facie Arbitrary & Irrational : Supreme Court 

Also Read: Constitution Doesn't Envisage Courts To Be Silent Spectators When Executive Policies Infringe Citizens' Rights : SC In COVID Vaccine Case 

2. 'Name Is An Intrinsic Element Of Identity': Supreme Court Issues Guidelines For Recording Corrections & Changes In CBSE Certificates

[Case: Jigya Yadav v. C.B.S.E; Citation: LL 2021 SC 264]

A Bench comprising Justices AM Khanwilkar, BR Gavai and Krishna Murari issued guidelines for the Central Board of Secondary Education to process the applications for correction or change in the certificates issued by it. The Court also directed CBSE to take immediate steps to amend its Byelaws so as to incorporate these guidelines for recording correction or change in the certificates already issued or to be issued by it.

The Court also held that name is an intrinsic element of one's identity. Further, the Court observed that the Byelaws of the Board have the force of law and must be regarded as such for all legal purposes. The Court also added that even if it is held that the Examination Byelaws are not "law" under Article 13 of the Constitution, it would not affect the power of the Court to scrutinize them in reference to Part ¬III of the Constitution as CBSE is a "State" within the meaning of Article 12 and all its actions are consequently subject to Part III of the Constitution.

3. Contempt Action Can Be Taken Only In Respect Of Established Willful Disobedience Of Court Order, Reiterates Supreme Court

[Case: Abhishek Kumar Singh v. G. Pattanaik; Citation: LL 2021 SC 265]

A Bench comprising Justices AM Khanwilkar and BR Gavai reiterated the principle that a contempt action can be taken only in respect of established willful disobedience of the Court order. ""In exercising contempt jurisdiction, the primary concern must be whether the acts of commission or omission can be said to be contumacious conduct of the party who is alleged to have committed default in complying with the directions given in the judgment and order of the Court", it observed.

In the instant case, the Uttar Pradesh Jal Nigam had terminated the service of the petitioners and consequently such an order was set aside by the Allahabad High Court which ordered for the reinstatement of the petitioners. This was later upheld by the Supreme Court consequent to which contempt petitions were filed alleging violation of directions issued by the Court. The Court noted that the concerned High Court and the Supreme Court orders do not contain explicit direction to reinstate the petitioners as the expression used in the order was "to permit the petitioners to work on the posts". Thus this was not a case of willful disobedience, the Court noted.

4. 'Every Journalist Entitled To Protection Of Kedar Nath Judgment': Supreme Court Quashes Sedition Case Against Journalist Vinod Dua

[Case: Vinod Dua v. Union of India; Citation: LL 2021 SC 266]

A bench of Justices UU Lalit and Vineet Saran while quashing the FIR against senior journalist Vinod Dua for sedition observed, "Every Journalist will be entitled to protection in terms of Kedar Nath Singh , as every prosecution under Sections 124A and 505 of the IPC must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh." In the case of Kedar Nath Singh v. State of Bihar(1962), the Supreme Court had read down Section 124A IPC and held that the application of the provision should be limited to "acts involving intention or tendency to create disorder, or disturbance of law and order; or incitement to violence".

The Court however refused the second prayer made by Vinod Dua seeking the formation of a committee to verify allegations against journalists before lodging FIR and that no FIR should be registered against a journalist with experience over 10 years unless cleared by the committee. The Court said that this prayer would be an encroachment into the legislative domain.

5. Trial Courts Have To Clearly Specify Whether Sentences Would Run Concurrently Or Consecutively: Supreme Court

[Case: Sunil Kumar @ Sudhir Kumar v. State Of Uttar Pradesh; Citation: LL 2021 SC 267]

A bench comprising of Justices Dinesh Maheshwari and Aniruddha Bose observed that the Trial Courts, while awarding multiple punishments of imprisonment, have to specify in clear terms as to whether the sentences would run concurrently or consecutively. Any omission to carry out this obligation causes unnecessary and avoidable prejudice to the parties, the Court opined. It further reiterated that the omission to state whether the sentences awarded to the accused would run concurrently or would run consecutively essentially operates against the accused because, unless stated so by the Court. The omission to state the order of consecutive running cannot ipso facto lead to concurrent running of sentences, the bench said.

6. Stop Illegal Adoption Of Children Orphaned By COVID; Public Advertisements For Adoptions Unlawful: Supreme Court

[Case: In Re Contagion of COVID Virus In Children Protection Homes; Citation: LL 2021 SC 268]

A bench comprising Justices L. Nageswara Rao and Aniruddha Bose in the suo moto case initiated by the Court to deal with the problems of children affected by COVID observed "No adoption of affected children should be permitted contrary to the provisions of the JJ Act, 2015.Invitation to persons for adoption of orphans is contrary to law as no adoption of a child can be permitted without the involvement of CARA. Stringent action shall be taken by the State Governments/Union Territories against agencies/individuals who are responsible for indulging in this illegal activity." The Court also directed the State governments and Union Territories to prevent any NGO from collecting funds in the names of the affected children by disclosing their identity and inviting interested persons to adopt them.

Wide publicity should be given to the provisions of the JJ Act, 2015 and the prevailing schemes of the Union of India and the State Governments/Union Territories which would benefit the affected children, the Court added.

7. Secured Creditor Can't Challenge Resolution Plan Insisting That Higher Amount Should Be Paid Based On Security Interest: Supreme Court

[Case: India Resurgence ARC Pvt Ltd v. Amit Metaliks Ltd; Citation: LL 2021 SC 269]

A division bench comprising Justices Vineet Saran and Dinesh Maheshwari held that a dissenting secured creditor cannot challenge a resolution plan approved under the Insolvency and Bankruptcy Code(IBC) with an argument that higher amount should have been paid to it on the basis of the security interest held by it over the corporate debtor. It observed that it is against the scheme of IBC to hold that a secured creditor is entitled to the amount in reference to its security interest.

Further the Court observed, "It has not been the intent of the legislature that a security interest available to a dissenting financial creditor over the assets of the corporate debtor gives him some right over and above other financial creditors so as to enforce the entire of the security interest and thereby bring about an inequitable scenario, by receiving excess amount, beyond the receivable liquidation value proposed for the same class of creditors."

8. CAG Report Can't Be Basis For Recovery Of Cess Without Statutory Adjudication: Supreme Court

[Case: Uttar Pradesh Power Transmission Corporation Ltd and another v. CG Power and Industrial Solutions Ltd; Citation: LL 2021 SC 270]

A division bench comprising Justices UU Lalit and Indira Banerjee held that there cannot be a recovery of cess solely on the basis of the report of the Comptroller and Auditor General (CAG) without any statutory adjudication process. It upheld a judgment of Allahabad High Court which had quashed the orders issued by the Uttar Pradesh Power Transmission Corporation Ltd (UPPTCL) directing a contractor to remit Labour Cess amounting to Rs.2,60,68,814. The UPPTCL had issued the orders purportedly under Sections 3 sub-section (1) and (2) of the Building and Other Construction Workers' Welfare Cess Act, 1996. The Apex Court noted that the levy was solely based on the CAG objection. Accordingly, the Court observed, "in the absence of any adjudication, it was impermissible for UPPTCL to issue the impugned communication to realize cess solely on the basis of the report of the CAG."

9. Goods Imported Violating FTDR/DGFT Notifications Are 'Prohibited Goods' Liable For Confiscation Under Customs Act: Supreme Court

[Case: Union of India v. Raj Grow Impex LLP; Citation: LL 2021 SC 271]

A bench comprising Justices AM Khanwilkar and Dinesh Maheshwari held that peas and pulses, which were imported in violation of the notifications of the Central Government and the Director General of Foreign Trade issued under the Foreign Trade (Development and Regulation) Act, are liable to absolute confiscation under Section 125 of the Customs Act as "prohibited goods". The Court granted a relaxation by allowing re-export of the goods on payment of the necessary redemption fine and subject to the importer discharging other statutory obligations. It observed, "...the personal interests of the importers who made improper imports are pitted against the interests of national economy and more particularly, the interests of farmers. This factor alone is sufficient to find the direction in which discretion ought to be exercised in these matters. When personal business interests of importers clash with public interest, the former has to, obviously, give way to the latter."

10. Kidnapping For Ransom - Necessary To Prove Threat To Cause Death Or Harm For Conviction Under Section 364A IPC: Supreme Court

[Case: Shaik Ahmed v. State of Telangana; Citation: LL 2021 SC 272]

A bench comprising Justices Ashok Bhuhsan and R Subhash Reddy held that merely proving the kidnap of a person is not sufficient for conviction for the offence of 'kidnapping for ransom' under Section 364A of the Indian Penal Code. It must also be proved that there was threat to cause death or harm to the kidnapped person or the kidnapper, by his conduct, which gave rise to a reasonable apprehension that such person may be put to death. The Court was considering a criminal appeal wherein the appellant, an auto-rickshaw driver, was convicted for kidnapping a school boy who had taken ride in the auto and for demanding a ransom of Rs. 2 lakhs from his father.

The Court held that the essential ingredients to be proved by the prosecution for proving the offence under Section 364A IPC are as follows :i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and (ii) threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person maybe put to death or hurt or; (iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental organization or any other person to do or abstain from doing any act or to pay a ransom. Accordingly, the Court observed, "Thus, after establishing first condition, one more condition has to be fulfilled since after first condition, word used is "and". Thus, in addition to first condition either condition (ii) or (iii) has to be proved, failing which conviction under Section364A cannot be sustained."

11. Persons With Disabilities Have Right To Reservation In Promotions: Supreme Court

[Case: State of Kerala v. Leesamma Joseph; Citation: LL 2021 SC 273]

A Division bench comprising Justices Sanjay Kishan Kaul and R Subhash Reddy held that persons with physical disabilities have right to reservation in promotions also. It held so while dismissing an appeal filed by the State of Kerala against a judgment of the Kerala High Court (State of Kerala v.  Leesamma Joseph). Further, the Apex Court directed the Kerala Government to implement reservation in promotion for disabled within 3 months. 

While approving the High Court judgment, the Supreme Court held the following- the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995 recognizes right to reservation in promotion; identification of posts for reservation as per Section 32 of the 1995 Act is a prerequisite for appointment; but appointment cannot be frustrated by refusing to identify posts; the absence of provision for reservation in the recruitment rules will not defeat the right of a disabled person as such right flows from the legislation and lastly that reservation in promotion can be extended to a disabled person even if the person was not originally appointed in PwD quota.

12. States Must Implement 'One Nation, One Ration Card' Scheme By July 31; Run Community Kitchens For Migrants

[Case: Re: Problems and Miseries of Migrant Labourers ; Citation: LL 2021 SC 274]

A Division bench comprising Justices Ashok Bhushan and MR Shah directed that all states must implement the "one nation, one ration card" scheme - which enables migrant workers to avail ration benefits from any part of the country - by July 31. It also passed a slew of other directions for the benefit and welfare of migrant workers. The Central government was directed to develop a portal in consultation with the National Informatics Centre (NIC) for registration of the unorganized labourers/migrant workers. Accordingly, all States and Union territories were ordered to complete the process of establishment of the portal and registration under National Data Base for Unorganised Workers (NDUW Project) by not later than July 31. Further, the Central Government, Department of Food and Public Distribution (Ministry of Consumer Affairs, Food and Public Distribution) was also directed to allocate and distribute food grains as per the demand of additional food-grains from the States for migrant labourers. 

The Central Government was also ordered to undertake  exercise under Section 9 of the National Food Security Act, 2013 to re-determine the total number of persons to be covered under the Rural and Urban areas of the State. In order to ensure that migrant labourers have access to food, the Bench also ordered the Central and State governments to oversee the functioning of community kitchens. 

13. "Legitimate Legislative Exercise' : Supreme Court Dismisses Plea Challenging Tamil Nadu Land Acquisition Laws Act 2019

[Case: G. Mohan Rao v. State of Tamil Nadu; Citation: LL 2021 SC 275]

A Bench comprising Justices AM Khanwilkar and Dinesh Maheshwari held that the Tamil Nadu State legislature had legislative competence to enact Tamil Nadu Land Acquisition Laws (Revival of Operation, Amendment and Validation) Act, 2019 and it is not inconsistent with Article 254 of the Constitution of India. It observed, "We hold the 2019 Act to be a legitimate legislative exercise and find it to be consistent with and within the four corners of Article 254 of the Constitution of India and also of the High Court judgment."

The Madras High Court in the 2019 decision of Caritas India v. Union of India had held that three land acquisition laws enacted by Tamil Nadu legislature - Tamil Nadu Highways Act 2001, Tamil Nadu Acquisition of Land for Industrial Purposes Act 1997, and Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act 1978 to be repugnant to the Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act 2013 (RFCTLARR Act) passed by the Parliament. Consequently, the State government on July 19, 2019 tabled the impugned bill which was made applicable retrospectively from September 26, 2013. Upholding such an enactment, the bench observed, "Suffice it to observe that when voidness is a result of repugnancy between the State law and law made by the Parliament, that is, voidness under Article 254 of the Constitution, revival of such State law by enacting a subsequent amendment substantively changing the basis of the voidness and applying it retrospectively from a prior date is recognised time and again by this Court."

14. Limitation Act Provisions Will Apply To Arbitration Proceedings Initiated Under Section 18(3) MSMED Act: Supreme Court

[Case: M/s. Silpi Industries v. Kerala State Road Transport Corporation; Citation: LL 2021 SC 276]

A bench comprising Justices Ashok Bhushan and R. Subhash Reddy held that the provisions of Limitation Act will apply to to arbitration proceedings initiated under Section 18(3) of Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act). It also observed that counter-claim is maintainable before the statutory authorities under MSMED Act. Thus the Court observed, "In view of the express provision applying the provisions of the Limitation Act, 1963 to arbitrations as per Section 43 of the Arbitration and Conciliation Act, 1996, we are of the view that the High Court has rightly relied on the judgment in the case of Andhra Pradesh Power Coordination Committee and held that Limitation Act, 1963 is applicable to the arbitration proceedings under Section 18(3) of the 2006 Act. Thus, we are of the view that no further elaboration is necessary on this issue and we hold that the provisions of Limitation Act, 1963 will apply to the arbitrations covered by Section 18(3) of the 2006 Act."

15. COVID Victims Entitled to Ex-Gratia Compensation; Supreme Court Directs NDMA To Frame Guidelines Within 6 Weeks

[Case: Reepak Kansal v. Union of India; Citation: LL 2021 SC 277]

A Bench comprising Justices Ashok Bhushan and MR Shah held that Section 12 of the Disaster Management Act casts a statutory obligation on the part of the National Disaster Management Authority (NDMA) to recommend minimum relief for the victims of a national disaster. Such minimum relief will also include 'ex-gratia assistance' as per Section 12(iii) of the Act. Further, it observed, "No country or state has unlimited resources. Dispensation of the same is based on a number of circumstances and facts. Therefore, we don't think it is proper to direct the Union to pay a particular amount. This is to be fixed by the government. Ultimately, the priorities are also to be fixed by the government

Accordingly, the Apex Court directed the NDMA to come up with guidelines for giving ex-gratia compensation to  the family members of persons who died due to COVID 19. The Court also directed that simplified guidelines be framed for issuance of death certificates/ official documents stating the exact cause of death - that is death due to COVID 19.

16. CA Exams -No RTPCR Needed For Opt-Out; Student Can Opt-Out For COVID Related Difficulties Of Oneself Or Family Members: Supreme Court

[Case: Anubha Shrivastava Saha v. Union of India; Citation: LL 2021 SC 278]

A Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and Aniruddha Bose directed the Institute of Chartered Accountants of India (ICAI) to give "opt-out" option to a candidate in the CA exams, scheduled to start from July 5, on account of COVID-related difficulties for herself or her family members, on the basis of a medical certificate issued by a registered medical practitioner. The Court also did away with the ICAI's requirement of producing RT-PCR certificate for seeking "opt-out" option. The Court observed, "A candidate who has suffered Covid personally or any of his family members, so certified by a registered medical practitioner, as a result of which he is unable to appear for exam, or disabled from preparing for the exam, is entitled to exercise the option of opting out. It will not be considered as an attempt. Such candidate will be permitted to appear for the next examination for both old and new syllabus." The Court directed the ICAI to conduct the exam and arrange the logistics in strict adherence to the Standard Operating Procedure notified by the competent authority, including the Disaster Management Authority.

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