RECENT JUDGMENTS OF SC edited and compiled by Kamlesh kumar

singh, NLSIU, Banglore. Sources-(Live law).

Much awaited Aadhaar Judgment is finally out.

The judgment authored by Justice AK Sikri, which has concurrence of Chief

Justice Dipak Misra and Justice AM Khanwilkar, has read down some of the
provisions of the Aadhaar (Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Act 2016, struck down a few but significant
ones (mainly Section 33(2), 47 and 57), and upheld the rest. Chronology of
Aadhaar case Also Read - Delhi HC Seeks Ayush Ministry's Response On Plea
Against Aadhaar-Based Attendance, Location-Based Recruitment * Jan 2009:
Planning Commission notification on UIDAI. * 2010-2011: National
Identification Authority of India Bill, 2010 introduced. * Nov 2012:
Retired Justice K S Puttaswamy and others file PILs in SC challenging
validity of Aadhaar. * Nov 2013: SC orders all states and Union
Territories be impleaded as respondents. * Mar 3, 2016: Aadhaar Bill,
2016 introduced in Lok Sabha; later passed as Money Bill. Also Read -
UIDAI To Charge Fee For Aadhaar Based Authentication Services
[Read Notification] * May 2017: Former Union minister and Congress
leader Jairam Ramesh moves SC Challenging the Centre's decision to treat
Aadhaar bill as a money bill. * Aug 24, 2017: SC nine-judge bench rules that
right to privacy is a fundamental right. * Dec 15: SC extends deadline for
mandatory linking of Aadhaar with various services and welfare schemes till
March 31, 2018. * Jan 17, 2018: SC five-judge bench begins hearing
Aadhaar case. * Jan 25: SC asks Chhattisgarh HC to modify in 10 days its
order directing all trial courts in the state to mandatorily accept copies of
Aadhaar card for releasing an accused on bail. * Feb 19: Delhi BJP leader
Ashwini Kumar Upadhyay seeks direction to EC to take appropriate steps to
implement an Aadhaar based election voting system'. * Feb 21: SC says the
alleged defect that citizens' biometric details under the Aadhaar scheme were
being collected without any law, could be cured by subsequently bringing a
statute. * Mar 7: SC says Aadhaar number not mandatory for enrolment of
students in all India exams. * Mar 13: SC extends March 31 deadline of
Aadhaar linking till it gives its order. * Mar 22: UIDAI CEO says breaking the
Aadhaar encryption may take "more than the age of the universe for the
fastest computer on earth". * Mar 28: Social activist Reshma Prasad seeks
direction to the Centre to create a separate third gender category option on
PAN cards for transgenders. * Apr 3: Centre tells SC Aadhaar law is just, fair
& reasonable. * Apr 17: SC raises concerns that there is a threat of Aadhaar
data misuse. * Apr 25: SC questions Centre on mandatory seeding of
Aadhaar with mobile. * May 10: SC reserves verdict. * Sep 26: SC upholds
constitutional validity of Aadhaar but strikes down certain
provisions including its linking with bank accounts, mobile phones and school
admissions. The following summary from the judgment gives clear idea about
which all provisions got erased from the statute and which all will remain in a
changed form. Section 2(d) which pertains to authentication records, such
records would not include metadata as mentioned in Regulation 26(c) of the
Aadhaar (Authentication) Regulations, 2016. Therefore, this provision in the
present form is struck down. Liberty, however, is given to reframe the
regulation, keeping in view the parameters stated by the Court. Insofar as
Section 2(b) is concerned, which defines ‘resident’, the apprehension
expressed by the petitioners was that it should not lead to giving Aadhaar
card to illegal immigrants. We direct the respondent to take suitable
measures to ensure that illegal immigrants are not able to take such
benefits. Retention of data beyond the period of six months is impermissible.
Therefore, Regulation 27 of Aadhaar (Authentication) Regulations,
2016 which provides archiving a data for a period of five years is
struck down. Section 29 in fact imposes a restriction on sharing
information and is, therefore, valid as it protects the interests of
Aadhaar number holders. However, apprehension of the petitioners is that
this provision entitles Government to share the information ‘for the purposes
of as may be specified by regulations’. The Aadhaar (Sharing of Information)
Regulations, 2016, as of now, do not contain any such provision. If a
provision is made in the regulations which impinges upon the privacy rights
of the Aadhaar card holders that can always be challenged. Section 33(1) of
the Act prohibits disclosure of information, including identity information or
authentication records, except when it is by an order of a court not inferior to
that of a District Judge. We have held that this provision is to be read down
with the clarification that an individual, whose information is sought to be
released, shall be afforded an opportunity of If such an order is passed, in
that eventuality, he shall also have right to challenge such an order passed
by approaching the higher court. During the hearing before the concerned
court, the said individual can always object to the disclosure of information
on accepted grounds in law, including Article 20(3) of the Constitution or the
privacy rights etc. Insofar as Section 33(2) is concerned, it is held that
disclosure of information in the interest of national security cannot be faulted
with. However, for determination of such an eventuality, an officer higher
than the rank of a Joint Secretary should be given such a power. Further, in
order to avoid any possible misuse, a Judicial Officer (preferably a sitting
High Court Judge) should also be associated with. We may point out that
such provisions of application of judicial mind for arriving at the conclusion
that disclosure of information is in the interest of national security, are
prevalent in some jurisdictions. In view thereof, Section 33(2) of the Act in
the present form is struck down with liberty to enact a suitable provision on
the lines suggested above. Insofar as Section 47 of the Act which provides
for the cognizance of offence only on a complaint made by the Authority or
any officer or person authorised by it is concerned, it needs a suitable
amendment to include the provision for filing of such a complaint by an
individual/victim as well whose right is violated. Insofar as Section 57 in
the present form is concerned, it is susceptible to misuse inasmuch
as: (a) It can be used for establishing the identity of an individual
‘for any purpose’. We read down this provision to mean that such a
purpose has to be backed by law. Further, whenever any such “law” is made,
it would be subject to judicial scrutiny. (b) Such purpose is not limited
pursuant to any law alone but can be done pursuant to ‘any contract to this
effect’ as well. This is clearly impermissible as a contractual provision is not
backed by a law and, therefore, first requirement of proportionality test is
not met. (c) Apart from authorising the State, even ‘any body corporate or
person’ is authorised to avail authentication services which can be on the
basis of purported agreement between an individual and such body corporate
or person. Even if we presume that legislature did not intend so, the impact
of the aforesaid features would be to enable commercial exploitation of an
individual biometric and demographic information by the private entities.
Thus, this part of the provision which enables body corporate and individuals
also to seek authentication, that too on the basis of a contract between the
individual and such body corporate or person, would impinge upon the right
to privacy of such individuals. This part of the section, thus, is declared
unconstitutional. Other provisions of Aadhaar Act are held to be valid,
including Section 59 of the Act which, according to us, saves the pre-
enactment period of Aadhaar project, i.e. from 2009-2016. Aadhaar Do Not
Tend To Create A Surveillance State. The majority judgment authored by
Justice Sikri also holds that the architecture of Aadhaar, as well as the
provisions of the Aadhaar Act, do not tend to create a surveillance state. It
was observed that this aspect is ensured by the manner in which the
Aadhaar project operates. The judges also found that it is very difficult to
create profile of a person simply on the basis of biometric and demographic
information stored in CIDR and -Insofar as authentication is concerned, there
are sufficient safeguard mechanisms. In this regard, the majority judgment
holds as follows. Authentication records are not to be kept beyond a period of
six months, as stipulated in Regulation 27(1) of the Authentication
Regulations. This provision which permits records to be archived for a period
of five years is held to be bad in law. Metabase relating to transaction, as
provided in Regulation 26 of the aforesaid Regulations in the present form, is
held to be impermissible, which needs suitable amendment. Section 33(1)
of the Aadhaar Act is read down by clarifying that an individual,
whose information is sought to be released, shall be afforded an
opportunity of hearing Insofar as Section 33(2) of the Act in the
present form is concerned, the same is struck down. That portion of
Section 57 of the Aadhaar Act which enables body corporate and
individual to seek authentication is held to be unconstitutional. Bring
out a robust data protection regime in the form of an enactment on
the basis of Justice B.N. Srikrishna (Retd.) Committee Report with
necessary modifications. ‘Reasonable Expectation Of Privacy’ The Court held
that all matters pertaining to an individual do not qualify as being an
inherent part of right to privacy. Only those matters over which there would
be a reasonable expectation of privacy are protected by Article 21. It also
held that the Aadhaar scheme, which is backed by the statute, i.e. the
Aadhaar Act also serves legitimate State aim. However, the court clarified-
‘Benefits’ and ‘services’ as mentioned in Section 7 should be those which
have the colour of some kind of subsidies etc., namely, welfare schemes of
the Government whereby Government is doling out such benefits which are
targeted at a particular deprived class It would cover only those ‘benefits’
etc. the expenditure thereof has to be drawn from the Consolidated Fund of
India On that basis, CBSE, NEET, JEE, UGC etc. cannot make the
requirement of Aadhaar mandatory as they are outside the purview
of Section 7 and are not backed by any law. Aadhaar and Children With
regard to enrolment of children, the court held as follows: For the enrolment
of children under the Aadhaar Act, it would be essential to have the consent
of their parents/guardian. On attaining the age of majority, such children
who are enrolled under Aadhaar with the consent of their parents, shall be
given the option to exit from the Aadhaar project if they so choose in case
they do not intend to avail the benefits of the scheme. Insofar as the school
admission of children is concerned, the requirement of Aadhaar would not be
compulsory as it is neither a service nor subsidy. Further, having regard to
the fact that a child between the age of 6 to 14 years has the fundamental
right to education under Article 21A of the Constitution, school admission
cannot be treated as ‘benefit’ as well. Benefits to children between 6 to 14
years under SarvShikshaAbhiyan, likewise, shall not require mandatory
Aadhaar enrolment. For availing the benefits of other welfare schemes which
are covered by Section 7 of the Aadhaar Act, though enrolment number can
be insisted, it would be subject to the consent of the parents, as mentioned
in (a) above. We also clarify that no child shall be denied benefit of any of
these schemes if, for some reasons, she is not able to produce the Aadhaar
number and the benefit shall be given by verifying the identity on the basis
of any other documents. Upholds Passing of Aadhaar Act as Money Bill
 The bench which also observed that Aadhaar Act meets the concept
of Limited Government, Good Governance and Constitutional Trust,
upheld the passing of the Act as a ‘Money Bill’. It said that Section 7 is
the core provision of the Aadhaar Act and this provision satisfies the
conditions of Article 110 of the Constitution. PAN Linking Upheld, Bank-
Mobile Linking Unconstitutional The court further held that Section 139AA of
the Income Tax Act, 1961 is not violative of right to privacy as it satisfies the
triple test (I) existence of a law; (ii) a ‘legitimate State interest’; and (iii)
such law should pass the ‘test of proportionality’, However, the bench held
that the move of mandatory linking of Aadhaar with bank account does not
satisfy the test of proportionality. It has been also held that Mandatory
linking of mobile number with Aadhaar is held to be illegal and
unconstitutional as it is not backed by any law. Justice ASHOK BHUSHAN
almost agrees with Justice Sikri judgment Following is the summary from
Justice Ashok Bhushan’s judgment The requirement under Aadhaar Act to
give one's demographic and biometric information does not violate
fundamental right of privacy. The provisions of Aadhaar Act requiring
demographic and biometric information from a resident for Aadhaar Number
pass threefold test as laid down in Puttaswamy (supra) case, hence cannot
be said to be unconstitutional. Collection of data, its storage and use does
not violate fundamental Right of Privacy. Aadhaar Act does not create an
architecture for pervasive surveillance. Aadhaar Act and Regulations provides
protection and safety of the data received from individuals. Section 7 of the
Aadhaar is constitutional. The provision does not deserve to be struck down
on account of denial in some cases of right to claim on account of failure of
authentication. The State while enlivening right to food, right to shelter etc.
envisaged under Article 21 cannot encroach upon the right of privacy of
beneficiaries nor former can be given precedence over the latter. Provisions
of Section 29 is constitutional and does not deserves to be struck down.
Section 33 cannot be said to be unconstitutional as it provides for the use of
Aadhaar data base for police investigation nor it can be said to violate
protection granted under Article 20(3). Section 47 of the Aadhaar Act cannot
be held to be unconstitutional on the ground that it does not allow an
individual who finds that there is a violation of Aadhaar Act to initiate any
criminal process Section 57, to the extent, which permits use of Aadhaar by
the State or any body corporate or person, in pursuant to any contract to this
effect is unconstitutional and void. Thus, the last phrase in main provision of
Section 57, i.e. “or any contract to this effect” is struck down. Section 59 has
validated all actions taken by the Central Government under the notifications
dated 28.01.2009 and 12.09.2009 and all actions shall be deemed to have
been taken under the Aadhaar Act. Parental consent for providing biometric
information under Regulation 3 & demographic information under Regulation
4 has to be read for enrolment of children between 5 to 18 years to uphold
the constitutionality of Regulations 3 & 4 of Aadhaar (Enrolment and Update)
Regulations, 2016. Rule 9 as amended by PMLA (Second Amendment) Rules,
2017 is not unconstitutional and does not violate Articles 14, 19(1)(g), 21 &
300A of the Constitution and Sections 3, 7 & 51 of the Aadhaar Act. Further
Rule 9 as amended is not ultra vires to PMLA Act, 2002. Circular dated
23.03.2017 being unconstitutional is set aside. Aadhaar Act has been rightly
passed as Money Bill. The decision of Speaker certifying the Aadhaar Bill,
2016 as Money Bill is not immuned from Judicial Review. Section 139AA
does not breach fundamental Right of Privacy as per Privacy
Judgment in Puttaswamy case. The Aadhaar Act does not violate the
interim orders passed in Writ Petition (C) No. 494 of 2012 and other
Writ Petitions.

https://www.livelaw.in/aadhaar-read-the-summary-of-majority-41-
judgment/

Right To Die With Dignity A Fundamental Right,

SC Allows Passive Euthanasia And Living Will, Issues Guidelines Supreme

Court of India has held that right to die with dignity is a fundamental right.
The Bench also held that passive euthanasia and a living will also legally
valid. The Court has issued detailed guidelines in this regard. "The right to
life and liberty as envisaged under Article 21 of the Constitution is
meaningless unless it encompasses within its sphere individual dignity. With
the passage of time, this Court has expanded the spectrum of Article
21 to include within it the right to live with dignity as component of
right to life and liberty". Also Read - The New Chief Justice And The
Awaiting Challenges The Bench also held that the right to live with dignity
also includes the smoothening of the process of dying in case of a terminally
ill patient or a person in Persistent vegetative state with no hope of recovery.
"A failure to legally recognize advance medical directives may amount to
non-facilitation of the right to smoothen the dying process and the right to
live with dignity. Further, a study of the position in other jurisdictions shows
that Advance Directives have gained lawful recognition in several
jurisdictions by way of legislation and in certain countries through judicial
pronouncements. Also Read - Leaders Of Outfits Calling For Mob Violence
Liable For Damages : SC Issues Guidelines To Prevent Vandalism By
Protesting Mobs [Read Judgment] Though the sanctity of life has to be kept
on the high pedestal yet in cases of terminally ill persons or PVS patients
where there is no hope for revival, priority shall be given to the Advance
Directive and the right of self-determination. In the absence of Advance
Directive, the procedure provided for the said category hereinbefore shall be
applicable. When passive euthanasia as a situational palliative measure
becomes applicable, the best interest of the patient shall override the State
interest", said the CJI Here Is What The 5 Judges Said While Recognizing
Passive Euthanasia And Living Wills/ Advance Directives [Read Judgment]
The Constitution Bench of Chief Justice Dipak Misra and Justices AK
Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan was
delivering its verdict on a PIL filed by NGO Common Cause in 2005
seeking robust system of certification for passive euthanasia and
legal recognition for ‘living will’ in India. Advocate Prashant Bhushan
argued for the petitioner 'Common Cause',Senior Advocate Arvind Datar for
Vidhi Centre for Legal Policy and Senior Advocate Sanjay Hegde
for Indian Society of Critical Care Medicine. P.S. Narasimha Additional
Solicitor General of India argued for Union of India. After extensive hearing
during which both the petitioner and the government was heard, the bench
had reserved its judgment on October 11. It was a bench headed by the
Chief Justice P Sathasivam which referred this case to Constitution Bench on
a plea by an NGO Common Cause that a person, who is afflicted with a
terminal disease, should be given relief from agony by withdrawing artificial
medical support provided to him which is medically referred to as passive
euthanasia. A five Judge Bench of Supreme Court in Gian Kaur v. State of
Punjab held both euthanasia and assisted suicide not lawful in India
and overruled the two Judge Bench decision in P. Rathinam v. Union
of India. The Court held that the right to life under Article 21 of the
Constitution does not include the right to die. But later in
Arunaramchandra Shanbaug v. Union of India the Supreme Court
held that passive euthanasia can be allowed under exceptional
circumstances under the strict monitoring of the Court. The difference
between ‘active’ and passive’ euthanasia is that in active euthanasia
something is done to end the patient’s life while in passive euthanasia,
something is not done that would have preserved the patient’s life. WHAT IS
LIVING WILL Living will is a written document that allows a patient to give
explicit instructions in advance about the medical treatment to be
administered when he or she is terminally ill or no longer able to express
informed consent. All You Need To Know About The Execution Of Advance
Directive (Living Will) For Passive Euthanasia As Per The Law Laid Down By
SC Today It includes authorizing their families to switch off life support in
case a medical board declared that they were beyond medical help. During
the hearing, the government expressed its opposition to the concept of living
will. It argued that a living will be misused and may not be viable as a part of
public policy. The government, however, said that it had agreed in principle
to permit 'passive euthanasia'. It means allowing the withdrawal of life
support from patients in a permanently vegetative state and permitting them
to die. The government even said it had drafted a 'management of patients
with terminal illness, withdrawal of medical life support bill'. SC was prima
facie of the opinion that there should be guidelines for drafting ‘living wills’
also and authenticating them. Not agreeing with the government completely,
the bench had said that it would lay down norms governing how such living
wills can be drawn up, executed and given effect to. "Now that you have
decided to allow passive euthanasia, we have to evolve safeguards," the CJI
had said. The CJI refused to leave the issue of whether to allow a person to
pass on with dignity and in peace, in accordance with his wishes, to the
government. "The individual’s will, his right will be thwarted in such a case,"
he had said. The bench said that advance directive by a person in the form of
‘living will’ can even be approved by a magistrate. Bhushan argued that the
right to die peacefully was part of the right to life guaranteed under Article
21 of the Constitution.

https://www.livelaw.in/breaking-right-die-dignity-fundamental-
right-sc-allows-passive-euthanasia-living-will-issues-guidelines/

SC Sets Aside Kerala HC Judgment Annulling Marriage Between

Hadiya And Shafin Jahan [Read Order] BY: APOORVA MANDHANI8
March 2018.

The Supreme Court has set aside the Kerala High Court judgment annulling
the marriage between Hadiya and Shafin Jahan- a marriage which was
debated throughout the country during the past few months. The Apex Court
quashed the High Court judgment in view of Hadiya's statement during her
personal appearance before the Court in November, 2017, and opined that
the High Court could not have annulled the marriage under Article 226 of the
Constitution of India. It, however, directed the National Investigation Agency
(NIA) to continue with its investigation. Also Read - The Good And Bad :
Read 35 Important Supreme Court Judgments Of 2018 Order "Considering
the arguments advanced on both sides, in the facts of the present case, we
hold that the High Court should not have annulled the marriage between
Shafin Jahan and Hadiya alias AkhilaAsokan, in a Habeas Corpus petition
under Article 226 of the Constitution of India. We say so because in the
present appeal, by special leave, we had directed the personal presence of
Hadiya alias AkhilaAsokan; she appeared before this Court on 27th
November, 2017, and admitted her marriage with appellant No.1. Also Read
- Important Judgments Of Justice Dipak Misra In view of the aforesaid, the
appeal stands allowed. The judgment and order passed by the High Court is
set aside. Hadiya alias AkhilaAsokan is at liberty to pursue her future
endeavours according to law. We clarify that the investigations by the NIA in
respect of any matter of criminality may continue in accordance with law"
The case concerns Hadiya’s conversion to Islam and her subsequent
marriage to a Muslim man Shafin Jahan. In a judgment rendered on 25 May
last year, a Division Bench of Kerala High Court had called her marriage a
“sham”, and had annulled it, directing her return to the protective custody of
her Hindu parents. The Bench comprising Justice Surendra Mohan and Justice
Abraham Mathew had made some controversial observations like: “a girl
aged 24 years is weak and vulnerable, capable of being exploited in many
ways” and “her marriage being the most important decision in her life, can
also be taken only with the active involvement of her parents”. Hadiya’s
husband had then filed a Special Leave Petition before the Supreme Court,
challenging this decision. He had contended that the marriage was annulled
without any legal basis, and had submitted, “…the impugned order is an
insult to the independence of women of India as it completely takes
away their right to think for themselves and brands them as persons
who are weak and unable to think and make decisions for
themselves. That the same is against their fundamental rights and should
be struck down”. A Bench comprising Chief Justice J.S. Khehar and Justice
D.Y. Chandrachud had thereafter directed the National Investigation Agency
(NIA) and the Kerala Government to submit all documents related to the
case. It had also directed Hadiya’s father Asokan to submit proof of his claim
that Hadiya was converted after being radicalized. Soon after, the Apex Court
had directed an NIA probe into the case, under the supervision of former
Supreme Court Judge, Justice R.V. Raveendran. Justice Raveendran had,
however, declined the Court's request, after which, Hadiya’s husband had
approached the Apex Court, seeking recall of the order directing NIA probe
into the matter. He had filed an application contending that “certain facts
have emerged which call for a reconsideration” of the order. He had further
submitted that the Agency had begun investigating the matter despite
Justice Raveendran's refusal to head the probe. This, he had said, violated
the Court's order. There have been several allegations and counter-
allegations since. In November, when the Court finally heard Hadiya, it
directed her to be sent “at the earliest” to SivarajHomeo Medical College,
Salem to complete her house surgency. The Kerala Government was asked
to make all arrangements and the Dean of the college was directed to ensure
her protection. Hadiya had then, last month, sought the Court's permission
to live with Shafin Jahan as husband and wife. In her affidavit, Hadiya had
categorically stated that she had embraced Islam and married Shafin Jahan
on her own free will. “I embraced the faith/religion of Islam on my choice as
per my conscience and on my own free will after studying about Islam and
thereafter I married a person, namely Shafin Jahan, the Petitioner herein,
from the same faith as per my choice and on my own free will. However,
despite the fact that I submitted repeatedly on affidavit, through my counsel
and also in person, as the case may be, before the Hon’ble High Court of
Kerala that I made the above choices (of my religion and my life-partner) on
my own free will, the Bench of the High Court did not heed to my
submissions,” she had submitted. Hadiya's father, Asokan K.M. had then
presented a new conspiracy theory, alleging that attempts had been made to
take Hadiya to Yemen. Mr. Asokan had pointed out that Hadiya has not
denied any of these allegations of transporting her out of the country and
had also cited other examples where people have been taken out of India.
Thereafter, he had specifically emphasized on Hadiya being "vulnerable" and
had demanded dismissal of the SLP.

https://www.livelaw.in/breaking-sc-sets-aside-kerala-hc-judgment-
annulling-marriage-hadiya-shafin-jahan/

Observations In Ismail Faruqui Need To Be Viewed In Context Of

Land Acquisition Proceedings; Not Relevant In Ayodhya Title Dispute:
SC

The Supreme Court on Thursday, by a 2:1 majority, refused to

refer the Ayodhya-Ram Janmabhoomi land dispute case to a larger
bench. While the majority judgment was authored by Justice Ashok
Bhushan, for himself and Chief Justice of India Dipak Misra, Justice
S. Abdul Nazeer delivered the dissenting opinion. The majority
judgment clarified that the observations made in the Dr. M. Ismail Faruqui
and Ors. Vs. Union of India and Ors. judgment, that mosque was not an
integral part of Islam, have to be understood in the context of land
acquisition proceedings. Also Read - Ayodhya Mediation : Include 2 Retired
SC Judges In Panel; Shift Venue To Delhi, NirmohiAkhara Seeks Modifications
It ruled, “To conclude, we again make it clear that questionable observations
made in Ismail Faruqui's case as noted above were made in context of land
acquisition. Those observations were neither relevant for deciding the suits
nor relevant for deciding these appeals.” Also Read - Breaking : SC Refers
Ayodhya-Babri Land Dispute For Mediation; Panel Of Mediators Appointed
[Read Order] The appeals have now been directed to be listed in the week
commencing from October 29 for hearing. The judgment in Ismail
Faruqui case The Constitution Bench in Ismail Faruqui case was deciding on
several challenges to the validity of the Acquisition of Certain Area at
Ayodhya Act, 1993, by which the Centre acquired 67.703 acres of land in
Ayodhya, including the plot where the structure commonly known as Ram
Janam BhumiBabri Masjid was situated . One of the grounds on which the
attack was mounted on the legislation was that the legislation was anti-
secular and against the Muslim community. Representatives of the
community had argued that a mosque has immunity from State's power of
acquisition, and had asserted that a mosque cannot be acquired because of
its special status in the Mohammedan Law. The Constitution Bench had,
however, ruled that the acquisition of properties under the Act affects the
rights of both the communities and not merely those of the Muslim
community. With regard to the State’s ability to acquire a mosque, the court
had observed, “We may observe that the proposition advanced does
appear to us to be too broad for acceptance inasmuch as it would
restrict the sovereign power of acquisition even where such
acquisition is essential for an undoubted national purpose, if the
mosque happens to be located in the property acquired as an
ordinary place of worship without any particular significance
attached to it for the practice of Islam as a religion. It would also
lead to the strange result that in secular India there would be
discrimination against the religions, other than Islam.” It had also
been contended that the acquisition of a mosque violates the rights
guaranteed under Articles 25 and 26 of the Constitution of India. After
examining the law in British India, prior to 1950, and the law after
enforcement of the Constitution, the Constitution Bench had come to the
conclusion that places of religious worship like mosques, churches, temples
etc. can be acquired under the State's sovereign power of acquisition. It had
ruled that acquisitionper se does not violate Articles 25 and 26. The
Constitution Bench had further held that the right to practice, profess and
propagate religion guaranteed under Article 25 of the Constitution does not
necessarily include the right to acquire or own or possess property. Similarly,
it had asserted that this right does not extend to the right of worship at any
and every place of worship. With such observations, the Constitution Bench
had held that offer of prayer or worship is a religious practice, its offering at
every location would not be an essential or integral part of such religious
practice unless the place has a particular significance for that religion so as
to form an essential or integral part thereof. The main bone of contention
was this observation by the Constitution Bench: “A mosque is not an
essential part of the practice of the religion of Islam and namaz(prayer) by
Muslims can be offered anywhere, even in open.” Observations were made
in the context of land acquisition: Majority judgment The majority
judgment, however, now pointed out that the sentence “A mosque is
not essential part of the practice of the religion of Islam and
namaz(prayer) by Muslims can be offered anywhere, even in open” is
followed immediately by the next sentence: “Accordingly, its
acquisition is not prohibited by the provisions in the Constitution of
India”. This, it said, “makes it amply clear that the above sentence was
confined to the question of immunity from acquisition of a mosque which was
canvassed before the Court. First sentence cannot be read divorced from the
second sentence which immediately followed the first sentence.”Further
justifying the observation, the court emphasised on the view that the
observation was made in reference to the argument of the petitioners
regarding immunity of mosque from acquisition. “The Court held that if the
place where offering of namaz is a place of particular significance, acquisition
of which may lead to the extinction of the right to practice of the religion,
only in that condition the acquisition is not permissible and subject to this
condition, the power of acquisition is available for a mosque like any other
place of worship of any religion. Thus, observation made in paragraph 82
that mosque is not an essential part of the practice of the religion of Islam
and namaz even in open can be made was made in reference to the
argument of the petitioners regarding immunity of mosque from
acquisition,” it explained. Besides, the Bench dismissed the contention that
the Constitution Bench had held the place of birth of Lord Rama to be
of “particular significance”, observing, “It is another matter that the place of
birth of Lord Rama is referred as sacred place for Hindu community, which
has been pleaded throughout. In any view of the matter acquisition under
Act, 1993 having been upheld, the use of expression “particular significance”
has lost all its significance for decision of the suits and the appeals.”
Furthermore, the Court rejected the contention advanced by the respondents
that the principle of res judicata is attracted in the case at hand. It refused to
accept the averment that the judgment of Ismail Faruqui should be treated
as part of judgment in the suits before it, making reference to the High
Court’s observations in the case. It noted that the impugned judgment had
categorically held that issues, which have been raised in the suits, are not
the issues which can be said to have been noticed and adjudicated upon by
the Supreme Court in Ismail Faruqui’s case. It nevertheless concluded that
the questionable observations made in Ismail Faruqui's case were made in
context of land acquisition. These observations, it said, were neither relevant
for deciding the suits nor relevant for deciding these appeals. “Whatever
observations have been made in the judgment of Ismail Faruqui are not to
govern the decision in suits and the suits were to be decided on the basis of
the evidence on record. The questionable observations made in Ismail
Faruqui's case have to be treated as only observations and not for the
purpose of deciding suits and these appeals, they are not to be treated as
governing factor or relevant. The said observations are to be understood
solely as observation made in context of land acquisition and nothing
more,” it opined.

https://www.livelaw.in/sc-declines-to-refer-ayodhya-case-to-
larger-bench/

No Need To Collect Quantifiable Data Of Backwardness To Give

Reservation In Promotions For SC/STs- Nagraj Decision Clarified By
SC

A Five Judge Constitution Bench of the Supreme Court has held

that the 2006 Judgment in Nagraj Case, relating to reservations for
SC/ST in promotions, need not be referred for consideration of larger
Bench. However, the judgment by Justice Narimanclarified that there
is no requirement to collect quantifiable data of backwardness of
SC/STs to provide reservation in promotions. The dictum in Nagraj
was held contrary to Indira Sawhney decision to the extent it
prescribed collection of quantifiable data of backwardness as a
prerequisite for providing reservation in promotions. Also Read -
Tribunals CB [Day-1, Session-1] There Is A Strong View Point That
Post-Retirement Appointments Is A Scar On Independence Of
Judiciary, Says CJI In the 2006 judgment, the Apex Court had held
that it is not mandatory for the State to make reservations for SC/ST
in matter of promotions. However, if the State did wish to exercise its
discretion, it is supposed to gather quantifiable data showing backwardness
of the class and inadequacy of representation of that class in public
employment, in addition to compliance with the requirement of maintaining
administrative efficiency as per Article 335. Also Read - Does The Office Of
CJI Come Under The Purview Of RTI Act? SC Finally Lists Its Own Appeal
Before Constitution Bench The correctness of interpretation given by Nagaraj
decision that State should gather quantifiable data showing backwardness of
the class and their inadequacy in representation to provide reservation for
them in promotion was doubted, and was referred to Constitution Bench for
reconsideration during November 2017. Accordingly, a Constitution Bench
consisting of Chief Justice Dipak Misra, Justice Kurian Joseph, Justice R F
Nariman, Justice S K Kaul and Justice Indu Malhotra was constituted to
decide this issue. The five-judge bench headed by Chief Justice Dipak Misra
heard a battery of lawyers, including Attorney General K. K. Venugopal, ASG
Tushar Mehta, Senior Counsel Indira Jaising, P. S. Patwalia, Dinesh Dwivedi
and Sanjay Hedge in favour of the reference and, inter alia, Senior Advocates
Shanti Bhushan, Rajeev Dhavan, Rakesh Dwivedi and ShekharNaphade in
support of the 2006 ruling. The AG has sought for M. Nagaraj to be
reconsidered by a larger bench in view of the seven and nine judge bench
decisions in N. M. Thomas (1976) And Indira Sawhney (1992) respectively
where it has been held that there is a presumption of backwardness in
respect of the SC/ST and that the ‘creamy layer’ concept does not apply to
them. Attorney General objected to the requirement of proving
backwardness especially for the SC and ST. It was his submission that the
criterion of backwardness of SC and ST categories was already satisfied by
notification under Articles 341 and 342. During the hearing, the Bench had
inquired if the progressive members of the SC/ST could be regarded as
backward so as to deserve the reservation not only at the stage of
recruitment but even in promotions. After hearing, the Constitution Bench
reserved judgment on August 30.

https://www.livelaw.in/breaking-reservation-in-promotions-nagraj-
case-need-not-be-referred-to-larger-bench-for-reconsideration-sc/

SC Dismisses Petitions Seeking Probe In To Rafale Deal [Read

Judgment]

The Supreme Court on Friday dismissed a string of petitions seeking

an independent probe into the 2015 Rafale deal, according it a clean
chit in all respects- decision-making, pricing and procurement
procedure. The bench of Chief Justice RanjanGogoi and Justices S. K.
Kaul and K. M. Joseph was pronouncing its judgment on a batch of
PILs by Advocates M. L. Sharma and VineetDhanda, Advocate
Prashant Bhushan and former Union Ministers ArunShourie and
Yashwant Sinha and AAP MP Sanjay Singh. Also Read - 'I Am An
Individual In My Own Right! We Identify As Individual Lawyers Not As
Somebody's Wife Or Husband': Jaising To AG [Courtroom Exchange]
https://twitter.com/LiveLawIndia/status/1073464740309954560 Stating that
individual perception cannot influence the court into intervening, the bench
clarified that the limits of judicial review in respect of defence procurements
have to be determined upon a consideration of the individual facts and
circumstances. Also Read - Lokpal: SC Asks AG To Inform The Date For
Meeting Of Selection Committee Within 10 Days [ Read Order ] The bench
was of the view that the court cannot decide on the wisdom to purchase 36
fighter jets in fly-away condition as against the earlier deal for 126,
observing that the country cannot afford to be lacking in any manner so far
as defence is concerned. Expressing satisfaction with the process of
procurement, the bench noted that the earlier deal in respect of the 126 jets
had not been coming through. Reflecting that it is not for the court to
examine the feasibility of the pricing, the bench also held that even the
choice of the Indian Offset Partner was to be of the vendor, in which the
Union of India had no role to play, and there seems to have been no
commercial bias in the selection of the IOP. On November 14, the Court had
reserved orders on the petitions alleging corruption and procedural
irregularities in the deal for procurement of 36 jets from the French
company. The petitions were filed by M L Sharma, VineetDhanda and AAP MP
Sanjay Singh. Also listed along with those petitions was the PIL filed by
former Union Ministers Yashwant Sinha and ArunShourie, along with lawyer
Prashant Bhushan, for registration of FIR and Court-monitored investigation
by CBI into corruption allegations in Rafale deal. The PIL alleges that in the
Rafale deal there is prima facie evidence of commission of
cognizable offences under the Prevention of Corruption Act by public servants
occupying the highest of public offices in the country. The petitioners
contended that PM announced the deal in April 2015, without following the
Defence Procurement Procedure. It was argued that the negotiations for the
deal started after the PM announced the deal and approval of the Cabinet
Committee was obtained almost a year after the announcement. The prices
of aircraft were highly inflated in the new deal, and offset guidelines were
manipulated to accommodate Reliance Defence, which had no experience in
the sector. During the hearing, the Attorney General admitted in the
Court that the there was no sovereign guarantee from the French
government for the deal. However, the AG added that France has
issued a 'letter of comfort' for the deal with Dassault Aviation for the
procurement of 36 Rafale aircraft. Since it was an inter-
governmental agreement, there was no requirement to follow tender
process, the AG informed. The Attorney General submitted that the matter
was highly sensitive, concerning security of nation, and urged that the Court
should refrain from interfering. During the hearing, the Court had elaborately
quizzed the officials from the Indian Air Force about the requirements of the
force. The Court also inquired the Defence Secretary regarding the steps
followed before finalizing the procurement process.

https://www.livelaw.in/breaking-sc-dismisses-petitions-seeking-
probe-in-to-rafale-deal/

Horrendous Acts Of Mobocracy Can't Be Allowed Become New Norm:

SC Condemns Lynching Incidents, I

In a landmark judgment Supreme Court of India on Tuesday

condemned the lynching incidents across the country. The Bench
headed by Chief Justice Dipak Misra said the horrendous acts of
mobocracy cannot be allowed to become a new norm in the Country.
"The horrendous acts of mobocracy cannot be permitted to inundate
the law of the land. Earnest action and concrete steps have to be
taken to protect the citizens from the recurrent pattern of violence
which cannot be allowed to become “the new normal”. The State
cannot turn a deaf ear to the growing rumblings of its People, since
its concern, to quote Woodrow Wilson, “must ring with the voices of
the people.” The exigencies of the situation require us to sound a
clarion call for earnest action to strengthen our inclusive and all-
embracing social order which would, in turn, reaffirm the
constitutional faith. We expect nothing more and nothing less". Also Read
- The New Chief Justice And The Awaiting Challenges The Supreme Court
observed that it is the duty of the State to ensure that the machinery of law
and order functions efficiently and effectively in maintaining peace so as to
preserve our quintessentially secular ethos and pluralistic social fabric in a
democratic set-up governed by rule of law. "In times of chaos and anarchy,
the State has to act positively and responsibly to safeguard and secure the
constitutional promises to its citizens" Also Read - Leaders Of Outfits Calling
For Mob Violence Liable For Damages : SC Issues Guidelines To Prevent
Vandalism By Protesting Mobs [Read Judgment] Chief Justice Dipak Misra in
his judgment observed that the majesty of law cannot be sullied simply
because an individual or a group generate the attitude that they have been
empowered by the principles set out in law to take its enforcement into their
own hands and gradually become law unto themselves and punish the
violator on their own assumption and in the manner in which they deem fit.
"They forget that the administration of law is conferred on the law enforcing
agencies and no one is allowed to take law into his own hands on the fancy
of his “shallow spirit of judgment”. Just as one is entitled to fight for his
rights in law, the other is entitled to be treated as innocent till he is found
guilty after a fair trial. No act of a citizen is to be adjudged by any kind of
community under the guise of protectors of law. It is the seminal
requirement of law that an accused is booked under law and is dealt with in
accordance with the procedure without any obstruction so that substantive
justice is done" The Bench categorically held that no individual in his own
capacity or as a part of a group, which within no time assumes the character
of a mob, can take law into his/their hands and deal with a person treating
him as guilty. "That is not only contrary to the paradigm of established legal
principles in our legal system but also inconceivable in a civilized society that
respects the fundamental tenets of the rule of law. And, needless to say,
such ideas and conceptions not only create a dent in the majesty of law but
are also absolutely obnoxious". The apex Court held that there can be no
shadow of doubt that the authorities which are conferred with the
responsibility to maintain law and order in the States have the principal
obligation to see that vigilantism, be it cow vigilantism or any other
vigilantism of any perception, does not take place. "When any core group
with some kind of idea take the law into their own hands, it ushers in
anarchy, chaos, disorder and, eventually, there is an emergence of a violent
society. Vigilantism cannot, by any stretch of imagination, be given room to
take shape, for it is absolutely a perverse notion. We may note here that
certain applications for intervention and written notes have been filed in this
regard supporting the same on the basis that there is cattle smuggling and
cruel treatment to animals. In this context, suffice it to say that it is the law
enforcing agencies which have to survey, prevent and prosecute". "No one
has the authority to enter into the said field and harbour the feeling that he
is the law and the punisher himself. A country where the rule of law prevails
does not allow any such thought. It, in fact, commands for ostracisation of
such thoughts with immediacy." The Bench directed the Centre and states to
take preventive, punitive and remedial measures to stop lynching incidents in
future. It has issued detailed guidelines regrading the same. "The measures
that are directed to be taken have to be carried out within four weeks by the
Central and the State Governments. Reports of compliance be filed within the
said period before the Registry of this Court". states the Order. The Court
urged the Parliament to enact a separate law to punish offenders
participating in lynching of persons. "we think it appropriate to
recommend to the legislature, that is, the Parliament, to create a
separate offence for lynching and provide adequate punishment for
the same. We have said so as a special law in this field would instill a
sense of fear for law amongst the people who involve themselves in
such kinds of activities. There can be no trace of doubt that fear of
law and veneration for the command of law constitute the foundation
of a civilized society".
https://twitter.com/LiveLawIndia/status/1019087166146662400 On July 3, A
bench of Chief Justice Dipak Misra and Justices A. M. Khanwilkar and D. Y.
Chandrachud had reserved its judgment on a string of writ petitions filed by,
inter alia, Congress leader TehseenPoonawalla and the great-grandson of
Mahatma Gandhi, Tushar Gandhi, in the light of the rising instances of cow
vigilantism. Senior Counsel Indira Jaising, Colin Gonsalves and Sanjay Hegde
had appeared for the petitioners, Senior Advocates V. Giri and
SidharthLuthra for the applicants, while the Centre was represented by ASG
P. Narasimha and A. S. Nadkarni. Broadening the scope of the issue, the
Chief Justice had observed, “The concept of vigilantism is not about any
particular incident or motive…it is about mob violence…members of any
concerned group cannot take the law into their hands…even if there is no
law, they are nobody…” “We can deal with this under Article 142…we have
developed the concept in Shakti Vahini (honour killings)…compensation and
monitoring of investigation are aspects that have to be looked into…also,
what would be the point of a judgment without any preventive measure”, the
CJ had opined. “We intend to pass the judgment on the petitions, keeping
the contempt alive…these kind of instances cannot occur…it is the obligation
of the states to prevent the same…hence, an elaborate judgment is needed”,
CJI Misra had asserted on July 3. The bench also participated in a discussion
with Ms. Jaising as to who could be a victim of vigilantism. “The protected
categories in Article 15 should be covered…”, suggested Ms. Jaising. “Anyone
could be a victim…Why only those covered under Article 15?”, observed the
bench. “The term ‘victim’ is defined in the Cr. P. C…but we are coming for
vulnerable categories…Targeted violence is different from General
violence…this is not murder that happens in someone’s living
room…”, she responded. “Do not bring Article 15”, reiterated the
bench. On September 6, 2017, the apex court had asked all the States to
take stern measures to stop violence in the name of cow protection, including
appointing of senior police officers as nodal officer in every district and
highway patrolling to act promptly to check cow vigilantes from behaving like
they are “law unto themselves”. Subsequently, on January 29, the court
had issued notices to state governments of Rajasthan, Haryana and Uttar
Pradesh on a petition seeking contempt proceedings for failing to comply
with the aforesaid directions.

https://www.livelaw.in/breaking-horrendous-acts-of-mobocracy-
cant-be-allowed-become-new-norm-sc-condemns-lynching-
incidents-issues-directions/

Govt.Of Delhi Vs Lt.Governor : Summary of Supreme Court

Judgment

"If a well deliberated legitimate decision of the Council of

Ministers is not given effect to due to an attitude to differ on the part
of the Lieutenant Governor, then the concept of collective
responsibility would stand negated"- CJI In a significant judgment,
the Constitution Bench of the Supreme Court held that the
Lieutenant-General of the Delhi had to act as per the aid and advise
of the Council of Ministers of Delhi Government except in matters of
land, police and public order. It held that the LG cannot interfere in
each and every decision of the Delhi Government. Although decisions of
the Government have to be communicated to the LG, there is no need to
obtain the concurrence of LG in all matters. The Court also held that Delhi
was not a 'State', and occupied a special status under the Constitution. Also
Read - Tribunals CB [Day-1, Session-1] There Is A Strong View Point That
Post-Retirement Appointments Is A Scar On Independence Of Judiciary, Says
CJI There were three separate and concurring judgments. CJI Dipak Misra
wrote judgment for himself and Justice A K Sikri and Justice A M Khanwilkar.
Justice D Y Chandrachud and Justice Ashok Bhushan wrote separate but
concurring judgments. Here is the summary of the judgments. Chief Justice
of India Justice Dipak Misra (for himself and Justice A K Sikri and Justice A M
Khanwilkar) Constitution has to be interpreted in such a manner to enhance
its democratic spirit. The paradigm of representative participation by
engagement of citizenry should not be annihilated by interpretation. In a
democratic republic, collective is the supreme and the elected
representatives reflects the will of the collective. Spirit of constitutional
morality negates the concentration of power in the hands of a few.
The decisions by Constitutional functionaries must have normative
reasonability and acceptability. Principles of Constitutional
governances have the twin principles of fiduciary nature of public
power and system of checks and balances Parliamentary form of
government is based on principle of collective responsibility of the
cabinet. If a well deliberated legitimate decision of the Council of Ministers is
not given effect to due to an attitude to differ on the part of the Lieutenant
Governor, then the concept of collective responsibility would stand negated
Our Constitution contemplates a meaningful orchestration of federalism
and democracy to put in place an egalitarian social order, The Union and the
State Governments must embrace a collaborative federal architecture by
displaying harmonious coexistence and interdependence so as to avoid any
possible constitutional discord. The Constitution has mandated a federal
balance wherein independence of a certain required degree is assured to the
State Governments. As opposed to centralism, a balanced federal
structure mandates that the Union does not usurp all powers and the
States enjoy freedom without any unsolicited interference from the Central
Government with respect to matters which exclusively fall within their
domain. The status of NCT of Delhi is sui generis, a class apart, and the
status of the Lieutenant Governor of Delhi is not that of a Governor of a
State, rather he remains an Administrator, in a limited sense, working with
the designation of Lieutenant Governor. With the insertion of Article 239AA
by virtue of the Sixtyninth Amendment, the Parliament envisaged a
representative form of Government for the NCT of Delhi. The said
provision intends to provide for the Capital a directly elected Legislative
Assembly which shall have legislative powers over matters falling within
the State List and the Concurrent List, barring those excepted,
and a mandate upon the Lieutenant Governor to act on the aid and advice
of the Council of Ministers except when he decides to refer the matter to the
President for final decision. The interpretative dissection of Article
239AA(3) (a) reveals that the Parliament has the power to make
laws for the National Capital Territory of Delhi with respect to any
matters enumerated in the State List and the Concurrent List. At the
same time, the Legislative Assembly of Delhi also has the power to
make laws over all those subjects which figure in the Concurrent
List and all, but three excluded subjects, in the State List A
conjoint reading of clauses (3)(a) and (4) of Article 239AA divulges
that the executive power of the Government of NCTD is coextensive
with the legislative power of the Delhi Legislative Assembly and,
accordingly, the executive power of the Council of Ministers of Delhi
spans over all subjects in the Concurrent List and all, but three
excluded subjects, in the State List. However, if the Parliament
makes law in respect of certain subjects falling in the State List or the
Concurrent List, the executive action of the State must conform to the law
made by the Parliament. The Union of India has exclusive executive power
with respect to the NCT of Delhi relating to the three matters in the State List
in respect of which the power of the Delhi Legislative Assembly has been
excluded. In respect of other matters, the executive power is to be exercised
by the Government of NCT of Delhi. The meaning of ‘aid and advise’
employed in Article 239AA(4) has to be construed to mean that the
Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the
Council of Ministers and this position holds true so long as the
Lieutenant Governor does not exercise his power under the proviso to clause
(4) of Article 239AA. The Lieutenant Governor has not been entrusted with
any independent decisionmaking power. He has to either act on the
'aid and advice’ of Council of Ministers or he is bound to implement
the decision taken by the President on a reference being made by him The
words “any matter” employed in the proviso to clause (4) of Article
239AA cannot be inferred to mean “every matter”. The power of the
Lieutenant Governor under the said proviso represents the exception
and not the general rule which has to be exercised in exceptional
circumstances by the Lieutenant Governor keeping in mind the standards of
constitutional trust and morality, the principle of collaborative
federalism and constitutional balance, the concept of constitutional
governance and objectivity and the nurtured and cultivated idea of
respect for a representative government. The Lieutenant Governor
should not act in a mechanical manner without due application of mind so as
to refer every decision of the Council of Ministers to the President. The
difference of opinion between the Lieutenant Governor and the Council of
Ministers should have a sound rationale and there should not be exposition
of the phenomenon of an obstructionist but reflection of the philosophy of
affirmative constructionism and profound sagacity and judiciousness. The
Lieutenant Governor, being the Administrative head, shall be kept
informed with respect to all the decisions taken by the Council of Ministers
Also Read - Does The Office Of CJI Come Under The Purview Of RTI Act? SC
Finally Lists Its Own Appeal Before Constitution Bench Justice D Y
Chandrachud The constitutional scheme indicates several features in relation
to the NCT which have resulted in the conferment of a constitutional status
which falls short of the trappings of full statehood The NCT represents the
aspirations of the residents of its territory. But it embodies, in its character
as a capital city the political symbolism underlying national governance An
elected government reflects in a democracy, the aspirations of the people
who vote to elect their representatives. The elected representatives carry the
responsibility of giving expression to the political will of the electorate. In a
democratic form of government, real power must subsist in the elected arms
of the State. The relationship between the Council of Ministers and the titular
head of State is governed by the over-arching consideration that real power
and substantive accountability is vested in the elected representatives of the
people The principle of aid and advice is in a constitutional sense intended to
strengthen the constitutional value of representative government and of
governance which is accountable and responsive to the electorate. The
provisions of Article 239AA represent a clear mandate of the Constitution to
provide institutional governance founded on participatory, representative and
responsive government. The executive power of the government of NCT is
co-extensive with the legislative power. The principle of aid and advice under
clause 4 of Article 239AA extends to areas where the Lieutenant Governor
exercises functions in relation to matters where the legislative assembly has
the power to make laws. In consequence, those matters on which the
legislative assembly does not have the power to enact legislation are not
governed by the principle of aid and advice. Similarly, the Lieutenant
Governor is not subject to aid and advice on matters where he is required to
exercise his own discretion by or under any law it may not be possible to
make an exhaustive catalogue of those differences which may be referred to
the President by the Lieutenant Governor, it must be emphasised that a
difference within the meaning of the proviso cannot be a contrived
difference. If the expression ‘any matter’ were to be read as ‘every matter’, it
would lead to the President assuming administration of every aspect of the
affairs of the Union territory, thereby resulting in the negation of the
constitutional structure adopted for the governance of Delhi Before the
Lieutenant Governor decides to make a reference to the President under the
proviso to Article 239AA(4), the course of action mandated in the Transaction
of Business Rules must be followed. The Lieutenant Governor must, by a
process of dialogue and discussion, seek to resolve any difference of opinion
with a Minister and if it is not possible to have it so resolved to attempt it
through the Council of Ministers. A reference to the President is contemplated
by the Rules only when the above modalities fail to yield a solution, when the
matter may be escalated to the President. Justice Ashok Bhushan The
interpretation of the Constitution has to be purposive taking into
consideration the need of time and Constitutional principles The Parliament
has power to make laws for NCTD in respect of any of the matters
enumerated in State List and Concurrent List. The Legislative Assembly of
NCTD has also legislative power with respect to matters enumerated in the
State List (except excepted entries) and in the Concurrent List. The “aid and
advice” given by Council of Ministers as referred to in subclause (4) of
Article 239AA is binding on the LG unless he decides to exercise his
power given in proviso to subclause (2) of Article 239AA. The Legislative
Assembly of NCTD being representing the views of elected representatives,
their opinion and decisions have to be respected in all cases except where LG
decides to make a reference to the President The power given in proviso to
subclause (4) to LG is not to be exercised in a routine manner rather it is to
be exercised by the LG on valid reasons after due consideration when it
becomes necessary to safeguard the interest of the Union Territory. LG has
to be kept informed of all proposals, agendas and decisions taken. The
purpose of communication of all decisions is to keep him posted with the
administration of Delhi. From persons holding high office, it is expected that
they shall conduct themselves in faithful discharge of their duties so as
to ensure smooth running of administration so that rights of all can be
protected.

https://www.livelaw.in/govt-of-delhi-vs-lt-governor-summary-of-
supreme-court-judgment/

SC Issues Directions To Prevent Misuse Of SC/ST Act,

Govt.Servants Can't Be Arrested Without Prior Sanction

Supreme Court of India on Tuesday issued directions to prevent

the misuse of provisions of Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act 1989 (SC/ST Act). A Two Judge
Bench of Justices AK Goel and UU Lalit was examining the question
whether there can be procedural safeguards so that provisions of
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
(SC/ST) Act 1989 are not abused for extraneous considerations. Also
Read - Gujarat Police Arrest PUBG Players After The Game Gets Banned In
Some Cities "We direct that in absence of any other independent offence
calling for arrest, in respect of offences under the Atrocities Act, no arrest
may be effected, if an accused person is a public servant, without written
permission of the appointing authority and if such a person is not a public
servant, without written permission of the Senior Superintendent of Police of
the District. Such permissions must be granted for recorded reasons which
must be served on the person to be arrested and to the concerned court. As
and when a person arrested is produced before the Magistrate, the
Magistrate must apply his mind to the reasons recorded and further
detention should be allowed only if the reasons recorded are found to be
valid. To avoid false implication, before FIR is registered, preliminary enquiry
may be made whether the case falls in the parameters of the Atrocities Act
and is not frivolous or motivated" Also Read - Cannot Allow Anticipatory Bail
Just Because Arrest Would Tarnish Applicants' Reputation: Gujarat HC The
Bench has issued the following directions; 1.There is no absolute bar against
grant of anticipatory bail in cases under the Atrocities Act if no prima facie
case is made out or where on judicial scrutiny the complaint is found to be
prima facie mala fide 2.In view of acknowledged abuse of law of arrest in
cases under the Atrocities Act, arrest of a public servant can only be after
approval of the appointing authority and of a non-public servant after
approval by the S.S.P. which may be granted in appropriate cases if
considered necessary for reasons recorded. Such reasons must be scrutinized
by the Magistrate for permitting further detention. 3.To avoid false
implication of an innocent, a preliminary enquiry may be conducted by the
DSP concerned to find out whether the allegations make out a case under the
Atrocities Act and that the allegations are not frivolous or motivated. 4.Any
violation of direction (2) and (3) will be actionable by way of disciplinary
action as well as contempt The Bench has directed that a Government official
cannot be prosecuted on mere allegation of committing an offence under the
Act without the sanction of appointing authority The bench has issued the
directions in a appeal filed by Dr SubhashKashinath Mahajan against the
Bombay High Court judgment refusing to quash the FIR lodged against him
for offences alleged under the Act. The bench of Justice AK Goel and Justice
UU Lalit said the question raised in the appeal is this: “Whether any
unilateral allegation of mala fide can be ground to prosecute officers who
dealt with the matter in official capacity and if such allegation is falsely made
what is protection available against such abuse.” The court further observed:
“If the allegation is to be acted upon, the proceedings can result in arrest or
prosecution of the person and have serious consequences on his right to
liberty even on a false complaint which may not be intended by law meant
for protection of a bona fide victim.” The court also examined whether the
above said procedure will be just and fair procedure under Article 21 of the
Constitution of India or there can be procedural safeguards so that provisions
of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act 1989 are not abused for extraneous considerations.

https://www.livelaw.in/breaking-sc-issues-directions-to-prevent-
misuse-of-sc-st-act-govt-servant-cant-be-prosecuted-without-prior-
sanction/

Can't Restrict MPs And MLAs From Practicing Law : SC

 Supreme Court on Tuesday dismissed a petition seeking a
declaration that a person cannot be permitted to perform the dual
role of a lawyer and a legislator (MP/MLA). The three Judge Bench
comprising Chief Justice of India Dipak Misra, Justice AM Khanwilkar
and Justice DY Chandrachud was pronouncing the Judgment on a
petition filed by BJP leader and Advocate Ashwini Kumar Upadhyay,
Mr. Upadhyay had, in December last year, addressed a letter to
Chairman of Bar Council of India, Mr. Manan Kumar Mishra, seeking
debarment of MPs and MLAs from practicing law. Also Read -
Advocate Moves Kerala HC For Exemption From Wearing Black Coat
In Lower Courts In Summer [Read Petition] The letter had relied on
the decision rendered by the Supreme Court in the case of Dr.Haniraj
L. Chulani v. Bar Council of Maharashtra & Goa, 1996 AIR 1708,
wherein it was held that a person qualified to be an Advocate would
not be admitted as one if he is in full-time or part-time service or
employment, or is engaged in any trade, business or profession. It
had further cited Section VII, Chapter-II of Part-VI of the Bar Council of India
Rules, which list down restrictions on other employments. Also Read -
Suspension Of Advocates By Bar Council For Non Payment Of Welfare Fund
Subscription Challenged In SC The BCI sub-committee, formed in response
to the letter, had however ruled that legislators can be allowed to practice. In
its order, the sub-committee comprising B.C. Thakur, R.G. Shah, D.P. Dhal
and S. Prabhakaran had observed, “For that matter, all kinds of legally
regulated professions like medicine and law, howsoever demanding they may
be, are compatible with public services/duties. Ideally all these professions,
with some aberrations here and there, exist to serve the people. We should
not forget the fact that lawyers like Mahatma Gandhi, Bal GangadharTilak,
Dr.Ambedkar, Jawahar Lal Nehru, Dr.RajinderPrashad, LalaLajpat Rai,
Rajgopalachari, C.S. Dass have played important and crucial role in our
freedom struggle while they were practicing advocates. There is no valid
reason as to why services of an advocate, who happens to become an
MP/MLA, should not be available to general litigant public who are aggrieved
by any act/deed of the government.” Mr. Upadhyay had then petitioned the
Apex Court, challenging the permission to an individual to perform the dual
role of a lawyer and a legislator on grounds of conflict of interest and
violation of BCI rules. “The injury caused to the public because a salaried
person and particularly a public servant cannot practice as an Advocate but
Legislators are practicing which is a violation of Article 14 of the Constitution.
Legislators take fee from litigant and salary from the public exchequer, which
is professional misconduct,” he had contended. Having heard several
stakeholders, the three-judge bench had reserved its judgment on the
matter on July 9.
https://www.livelaw.in/breaking-cant-restrict-mps-and-mlas-from-
practicing-law-sc/

CJI Is The Master Of Roster: SC Reiterates, Dismisses Shanti

Bhushan's Petition.

[Although Constitution is silent on the role of CJI as the master

of roster, it is based on healthy practise to maintain discipline and
decorum of the Court.. CJI has authority to allocate cases and need
not consult other judges - Justice Sikri Dismissing the petition filed
by Senior Advocate SanthiBhushan seeking regulation of powers of
the CJI in constituting benches and allocating cases, the Supreme
Court asserted that CJI was the 'Master of the Roster'. Also Read - Is
Succession Planning A Relevant Factor For Overlooking Seniority? Bhushan's
petition contended that the concentration of absolute powers in the CJI with
regard to the determination of roster was unconstitutional. Therefore, the
petition sought a declaration that roster should be decided not by CJI alone,
but by a collegium of five senior judges. However, the bench of Justice A.K
Sikri and Justice Ashok Bhushan did not accept the contentions. Relying on
the recent judgment in Also Read - Role Of CJI In Collegium AsokPande's
case where the CJI-led bench had declared that the 'CJI was an institution in
himself', the present bench stated that CJI need not consult the collegium on
the allocation of cases. It held that reference to CJI cannot be deemed to
mean the collegium. Justice Sikri and Justice Ashok Bhushan wrote separate
but concurring judgments. "Although Constitution is silent on the role of CJI
as the master of roster, it is based on healthy practise to maintain discipline
and decorum of the Court.. CJI has authority to allocate cases and need not
consult other judges ", Justice Sikri noted in the judgment. Justice Sikri also
stated that acceptance of the plea of the petitioner would lead to practical
difficulties, affecting day to day functioning of the Court. SanthiBhushan had
contended that conferring absolute authority on the CJI to allocate cases was
unconstitutional, as unbridled and unguided concentration of power in a
single authority was against democratic principles. The petition raised the
allegation that there were several recent instances where this absolute power
was abused with legal malice and cited the examples of listing of CJAR
petition seeking investigation in medical college bribery case, petition
questioning the appointment of CBI Special Director, petition of Jay Amit
Shah against 'The Wire' etc. It can be said that the CJAR petition acted as
the catalyst for this debate around 'Master of Roster'. The petition raised
bribery allegations against a case considered by the bench headed by the
CJI. So the matter was mentioned before the bench headed by the then next
senior judge, Justice Chelameswar. The bench of Justice Chelameswar
ordered the listing of matter before a bench of five senior judges, excluding
the CJI, as allegations concerned the CJI. This order was set aside on the
very next day, by a constitution bench headed by CJI. The issue regarding
arbitrariness inthe allocation of "sensitive cases" was one of the causes for
the press conference held by Justice Chelameswar, Justice RanjanGogoi,
Justice Madan B Lokur and Justice Kurian Joseph on January 12.
AsokPande'scase AsokPande, a lawyer from Allahabad, with a history of
getting chastised by Allahabad High Court for filing malicious and frivolous
petitions, had filed a PIL seeking similar prayers.On April 9, the petition came
for admission before the by CJI-led bench and was reserved for orders after
hearing the “brief arguments” of Pande, who had appeared as party-in-
person. On April 11, judgment was delivered dismissing the petition stating
that CJI had absolute prerogative in constituting benches and allotting cases.
Meanwhile, ShanthiBhushan had complained to the Registry that his petition,
which was filed before the petition of AsokPande, was not getting listed. It
was on April 12, i.e the next day of dismissal of Pande’s petition, that
Prashant Bhushan, counsel for Shanti Bhushan, made a mention before the
bench led by Justice Chelameswar, seeking urgent listing of the matter.
However, Justice Chelameswar refused to pass orders stating “I don’t want
another reversal of my order within 24 hours”, palpably alluding to
the unprecedented proceedings of November 10. And the matter was
mentioned before the CJI-led bench, where Prashant Bhushan lamented
that despite continuous follow up with the Supreme Court registry for almost
a week, the petition has not been numbered. Thereupon, the matter was
listed before a division bench comprising Justice A.K Sikri and Justice Ashok
Bhushan, before whom Dushyant Dave and Kapil Sibal made extensive
arguments, and the bench reserved the matter for orders on April 27. Given
the importance of the issue, the bench sought for the views of Attorney
General in the matter. Shanti Bhushan's Plea The prayer in the petition was
for a writ, order or direction holding and declaring that the listing of matters
must strictly adhere to the Supreme Court Rules, 2013 and the Handbook on
Practice and Procedure and Office Procedure, subject to the clarification that
The words ‘Chief Justice of India’ must be deemed to mean a collegium of 5
seniormost judges of the Court. Master Of Roster-Devise A System Without
Arbitrariness And Cherry Picking Of Cases By CJI:Dushyant Dave Appeals To
SC [With Full Courtroom Exchange] Senior Counsel Dushyant Dave and Kapil
Sibal had appeared for the petitioner, accompanied by Advocate Prashant
Bhushan, while the court had sought the assistance of AG K. K. Venugopal.
In so far as Article 145 lays down that the “Supreme Court may from time to
time, with the approval of the President, make rules for regulating generally
the practice and procedure of the Court...”, Mr. Dave had suggested, “the
‘Supreme Court’ is not the CJI alone but the full court...”. In the same
context, he indicated Article 124 on the establishment and constitution of the
Supreme Court. “Please see the contradistinction in Article 130 (empowering
the CJI to decide the seat of the apex court) where the Constitution wanted
to confer power exclusively on the CJI, it was expressly done...”, he
advanced. Continuing in the same thread, he also mentioned Article 146
providing that the Appointments of officers and servants of the Supreme
Court shall be made by the Chief Justice of India or such other Judge or
officer of the Court as he may direct. CJI’s Power As The Master Of The
Roster Is Subject To The Caveat That This Power Is Exercised Fairly: Dave,
Sibal Argues Shanti Bhushan’s Plea “Under Article 145, rules have been
framed (Supreme Court Rules of 2013) which do not confer express or
implied power on the CJI for determining the roster or the listing of cases...”,
he submitted. Indicating Order 3 Rule 7 of the Supreme Court Rules of 2013,
in so far as the Rule stipulates ‘Subject to general or special orders of Chief
Justice, the Registrar shall publish such other lists as may be directed; list
matters as may be directed and in such order as may be’, Mr. Dave
advanced, “there is a limited scope for the CJI to interfere...”. When Justice
Sikri remarked that the provision confers power on the CJI, the Senior
Counsel advanced, “‘Subject to’ should be read as a Proviso...it cannot
overrule the substantive provision...it does not empower the CJI to fix the
roster and list before specific benches all the matters...”. Mr. Dave also
indicated Rule 8(ii) of Order 3 in the same context. Further, in the light of
Rules 1 and 5 of Order 6, Justice Bhushan observed, “Power has been given
to the CJI to nominate benches...that would be wide enough (to include
determination of roster and assignment of matters)...if there is no such
power, then the Supreme Court would be unworkable...”. “I bow down...but
Your Lordships have to decide if the Constitution has conferred this power on
the CJI or the full Court...”, responded Mr. Dave. Referring to the
Government of India (Allocation of Business) Rules, he advanced, “there a
large number of matters which go to Cabinet and in respect of which the
Prime Minister has no power...this is a necessary system of checks and
balances...” “Your Lordships may sit at the end of each term and decide the
roster and make amendments to the Rules...every judge may communicate
what subjects they are interested in...just because this may seem
cumbersome, it cannot be wished away”, continued Mr. Dave. In response to
a query by Justice Bhushan, the Senior Counsel clarified, “if it is not feasible
for the full court to take part in accordance with Article 145, then in the
alternative, the Collegium may decide”. Relying on the landmark judgment in
S. P. Gupta (1981), he advanced, “the ‘CJI’ has been understood to mean to
collegium”. He quoted Justice P. N. Bhagwati’s observation therefrom- “...We
are all human beings with our own likes and dislikes, our own predilections
and prejudices and our mind is not so comprehensive as to be able to take in
all aspects of a question at one time and moreover sometimes, the
information on which we base our judgments may be incorrect or inadequate
and our judgment may also sometimes be imperceptibly influenced by
extraneous or irrelevant considerations...There must be, checks and
controls in the exercise of every power, particularly when it is a
power to make important and crucial appointments and it must be
exercisable by plurality of hands rather than be vested in a single
individual...” “Constitution of benches and listing of matters is a
sensitive issue today...this is a responsible petition by a responsible
petitioner and not directed against any one individual...if one day, some CJI
decides he shall hear all matters himself (“and gives only chamber matters
to brother judges”, added Justice Sikri on a lighter note), would that be
legal?”, submitted Mr. Dave. “If roster is decided in January, then atleast till
May, matters should be listed in accordance thereto by the computer with no
human interference...”, he continued. Thereupon, Mr. Dave brought out the
discrepancies between the 2013 Rules and the Supreme Court Handbook on
Practice and Procedure. He advanced the first submission in the light of
Chapter XI on ‘Filing and Processing of Cases’, in so far as a guideline lays
down, “The In-charge, Filing Counter, shall apprise the Registrar (J-I) about
the filing of important and sensitive cases and, if he is of the same view, he
shall place such cases before the Chief Justice for information and order, if
any”. “The Rules do not provide this”, commented Mr. Dave. In so far
Chapter XIII on ‘Listing of Cases’ states that “fresh cases are allocated as per
subject category through automatic computer allocation, unless coram is
given by the Chief Justice or the Filing Counter”, Mr. Dave submitted that it
destroys the idea of random allocation by the computer. “Please devise a
system to rule out any arbitrariness and cherry picking...the judiciary, and
the Supreme Court in particular, is the sole institution that the public vests
its faith in...this trust cannot be allowed to be questioned by the exercise of
arbitrary discretion...I beseech Your Lordships to take judicial notice of
this...”, he prayed. Further, where it is provided in Chapter XIII that
“Publication of the cause list shall be the only mode of intimation of listing of
a case, unless otherwise ordered by the Chief Justice”, Mr. Dave remarked,
“the Rules provide transparency and the Handbook does away with it”. When
Justice Bhushan observed that the Handbook is in the character of mere
guidelines, Mr. Dave replied that the Supreme Court Registry has singularly
followed the Handbook in the particular instances cited in the present
petition. Advocate Prashant Bhushan also added on several occasions he has
been refused to even be given the Diary number by the Registry without the
direction of the CJ on account of the “sensitive” nature of the petition. “The
Registry is applying ‘res ipsa loquitur’”, the bench remarked on a humorous
note. In respect of the guideline in Chapter XIII that “Fresh admission
hearing cases shall be included in the daily cause list in chronological order,
i.e., in the order of institution”, Mr. Dave commented that there is no
discretion in the listing of fresh cases. Where the Chapter states that “No
change in the cause list, once published, shall be effected”, he advanced that
the contrary “ happenseveryday”. Further, Chapter XIII stipulates that Any
party or advocate on-record desirous of out of turn listing or early hearing of
an admission hearing case or application on the ground of urgency may
make oral mention before the Bench at 10.30 a.m. Mr. Dave submitted that
the mentioning need not necessarily be before the CJI. Further, where it is
provided in the Chapter that “In case mentioning is not permitted on a
particular day before the Bench presided over by the Chief Justice, it may
take place before the seniormost Bench of that day or as ordered by the
Chief Justice”, Mr. Dave advanced, “Assuming that these guidelines apply,
the order of Court 2 (in connection with the petition by CJAR in the Prasad
Educational Trust matter) was proper”. Finally, Chapter XIII prescribes that
“A case directed to be listed before some other Bench or before a Bench of
which one of the Judges is not a member shall be listed as per subject
category through computer allocation. Such admission hearing cases shall be
listed in the next final cause list.” “This was singularly breached in the writ
petition by NGO Common Cause challenging the appointment of Rakesh
Asthana as CBI Special Director...these are sensitive matters affecting the
body polity of a democracy...these are not some service matter”, remarked
Mr. Dave. “You want the System to be streamlined. Let us not go into
particular cases”, states Justice Sikri. “We are not seeking review of these
cases but their manner of listing has left a lot to desire...is the power of the
master of the roster so sacrosanct that it cannot be examined?...our
submission is that these guidelines should not be followed and that the listing
and the determination of the roster should be in accordance with the
Constitution, the Rules and the system of computer allocation...if at all the
guidelines are there, they are being breached singularly by the Registry...”,
responded Mr. Dave. “The law laid down by the judiciary is being deemed to
apply on the Executive and the Legislature but not on the Judiciary itself”, he
continued in the light of Articles 141 and 144. Thereupon, he quoted from
the 1980 Minerva Mills judgment- “It is a fundamental principle of our
constitutional scheme that every organ of the State, every authority under
the Constitution derives its power from the Constitution and has to act within
the limits of such power. But then the question arises as to which authority
must decide what are the limits on the power conferred upon each organ or
instrumentality of the State and whether such limits are transgressed or
exceeded. Now there are three main departments of the State amongst
which the powers of Government are divided; the Executive, the Legislature
and the Judiciary... “This is on the division of powers...but when a dispute
arises, it comes to the Judiciary”, remarked Justice Sikri. “But if an issue is
regarding the court on the Administrative side, should it be decided or not by
the judiciary? Could this be referred to a larger bench? This is not a case
that may be thrown out at the threshold...the future existence of this Court
depends on it...the Executive wishes for there to be gaping holes in the
system of the Supreme Court and the High Cours...”, replied Mr. Dave.
Thereupon, he quoted the following passage from the Second Judges Case
(1993)- “...In matters relating to appointments in the Supreme Court, the
opinion given by the Chief Justice of India in the consultative process has to
be formed taking into account the views of the two seniormost judges of the
Supreme Court. The Chief Justice of India is also expected to ascertain the
views of the seniormost Judge of the Supreme Court whose opinion is likely
to be significant in adjudging the suitability of the candidate, by reason of the
fact that he has come from the same High Court, or otherwise. Article
124(2) is an indication that ascertainment of the views of some other Judges
of the Supreme Court is requisite. The object underlying Article 124(2) is
achieved in this manner as the Chief Justice of India consults them for the
formation of his opinion. This provision in Article 124(2) is the basis for the
existing convention which requires the Chief Justice of India to consult some
Judges of the Supreme Court before making his recommendation. This
ensures that the opinion of the Chief Justice of India is not merely his
individual opinion, but an opinion formed collectively by a body of men at the
apex level in the judiciary...” “This observation by Justice Verma is really the
answer...it has been put so pithily”, commented Mr. Dave. Mr. Dave and Mr.
Bhushan together mentioned the consultative procedure adopted in most
international courts. “The rules of practice shall be different for different
places and bodies”, noted Justice Bhushan. “Also, like in the USA, there is
only court and no sitting in benches”, added Justice Sikri. “The power of the
CJI as the master of the roster is not consistent with the Constitutional
interpretation of the ‘Supreme Court’...and where the Supreme Court Rules
have given discretionary power to the CJI, the same principle of the Second
Judges Case of involving the seniormost judges must apply”, submitted Mr.
Bhushan. “As per the current roster, all matters are fairly distributed, but the
PILs are only before the CJI...is this not unfair because Your Lordships have
all heard PILs in High Courts?”, advanced Mr. Dave. “Even in certain High
Courts, the CJ lists PILs before his own bench”, noted Justice Sikri. “When
Justice Y. V. Chandrachud was the Chief Justice, Justice Bhagwati heard all
PILs”, responded Mr. Dave. In his turn, Attorney General K. K. Venugopal
backed the exclusive wielding by the CJ of the power of the master of the
roster- “this power is not just about the allocation of cases. How did these
benches come into existence? Someone must have applied there mind in
determining, depending on the pendency of cases and their urgency, how
many benches to compose of two judges and how many of three judges,
given the total strength...there is the question of who would preside over
these benches on the basis of seniority...to encourage the development of
law, it also necessary to decide benches specialised in inter alia the areas of
arbitration, environmental law, taxation and corporate law...there also has to
be a provision for allocation of matters that do not fall under existing
categories...” “This exercise is different from the appointment of judges by
the collegium and not one that can be carried out by multiple persons...there
may be disputes as to why a particular judge is being assigned any specific
matters...in the appointment of judges, there is no personal involvement in
view of the elevation being from the bar or the High Court. Here, there will
be personal involvement as to which bench to preside over and whether one
should be Number 2 or 3...it would be an unending exercise...and if there
has to be only person to carry it out, it has to be the CJ...”, he continued. In
context of Mr. Dave’s reliance on Article 145, the AG cited Article 146(2)
providing that “Subject to the provisions of any law made by Parliament, the
conditions of service of officers and servants of the Supreme Court shall be
such as may be prescribed by rules made by the Chief Justice of India or by
some other Judge or officer of the Court authorised by the Chief Justice of
India to make rules for the purpose”. He cited the 2010 judgment of the
apex court in State of UP v. NeerajChaubey, wherein it was observed, “...The
Chief Justice enjoys a special status and he alone can assign work to a Judge
sitting alone and to the Judges sitting in Division Bench or Full Bench. He has
jurisdiction to decide which case will be heard by which Bench. If the Judges
were free to choose their jurisdiction or any choice was given to them to do
whatever case they may like to hear and decide, the machinery of the court
would collapse and the judicial work of the court would cease by generation
of internal strife on account of hankering for a particular jurisdiction or a
particular case...” He also quoted the conclusions in the 1997 judgment of
the Supreme Court in State of Rajasthan v. Prakash Chand- “That the
administrative control of the High Court vests in the Chief Justice
alone. On the judicial side, however, he is only the first amongst the
equals; That the Chief Justice is the master of the roster. He alone has
the prerogative to constitute benches of the court and allocated cases to the
benches so constituted...” Further, he mentioned the judgment of the
Supreme Court in Jasbir Singh v. State of Punjab (2006). “The
judgments cited by the AG are not in the context of Article
141...Order 6 (Rule 1; Supreme Court Rules) only says that every
cause, appeal or matter shall be heard by a Bench consisting of not
less than two Judges nominated by the ChiefJustice...there is no
discretionary power to the CJ to decide the roster...the power of the
master of roster is to be tested on the touchstone of Article 145 read
with the Rules...”, objected Mr. Dave. When Mr. Bhushan sought to refute
the unworkability of the collegium in determining the roster and listing of
cases, as contended by the AG, Justice Sikri noted, “even in the High Courts,
many judges go to the Chief Justice to express anguish on the assignment of
matters or ask to be allocated specific cases...” “There shall be no difficulty in
all the judges deciding the roster at the beginning of a term”, pressed Mr.
Bhushan. “We are interested in its constitutionality...difficulties can be
resolved”, remarked Justice Bhushan.

https://www.livelaw.in/cji-is-the-master-of-roster-sc-dismisses-
shanti-bhushans-petition/

the voice of dissent. "Issue appropriate direction, directing an

independent investigation into arrest of these human rights activists
in June and August 2018 in connection with the Bhima-Koregaon
violence,"

the petition said. Human right activists have also sought an

explanation from the Maharashtra government over the issue of arrests.
"Issue appropriate direction calling for an explanation from the state of
Maharashtra for this sweeping round of arrests," the petition said. "The use
of draconian Unlawful Activities (Prevention) Act against these activists who
have no history of indulging or instigating any violence is clearly malafide
and an attempt to browbeat and intimidate the dissenting voices," the
petition said. Petitioners' counsel Dr. Abhishek Manu Singhvi contended that
arrest and search were carried out in blatant violation of procedure. The
witnesses who attested the arrest and search memos were brought by
Maharashtra police from Pune, and were not local residents. Also, during the
pendency of the case before the SC, the Maharashtra police had gone to
press alleging that the activists were involved in a plot to assassinate the PM,
even though such an allegation was conspicous by absecence in the FIR and
the remand applications. He therefore contended that the attempt was to
create a general impression that the activists were terrorists, even though
there was no material on record to support such charges. The Maharashtra
Government defended the arrests stating that they had collected enough
evidence to establish links of arrested activists with the Maoist organization.
The maintainability of the PIL at the behest of third parties was also
questioned by the Government. Background. The issue has genesis in the
multiple arrests and raids carried out by Pune police yesterday in several
cities. The activists were arrested for their alleged Maoist link triggering
Bhima-Koregaon violence in Pune on January 1, 2018. GautamNavlakha is a
civil liberties activist, who had association with People's Union for Democratic
Rights. He is an editorial consultant of Economic and Political Weekly. His
residence in Delhi was raided by Maharshtra police on August 28. The police
arrested him and secured a transit remand from a Saket court to take him to
Pune. The remand order was stayed by the Delhi High Court. The bench of
Justice Muralidhar and Justice Vinod Goel heard the matter in detail. After
finishing hearing, the Delhi HC had started dictating order in the petition.
Meanwhile, the SC passed the order in the petition filed by RomilaThapar and
others. On knowing about the SC order, the Delhi HC bench halted the
proceedings and adjourned the matter. Lawyer-activist SudhaBharadwaj,
who is known for her trade-unionism and civil rights activism in Chattisgarh
for almost three decades, was arrested from her house at Badarpur in
Haryana yesterday. Immediately after her arrest, a habeas corpus petition
was filed in the Punjab and Haryana High Court. The HC ordered that she
should be kept at her house till the Magistrate decided on the transit remand.
The HC also directed that the Maigstrate should examine compliance of
provision of Section 41 and 50 of the Code of Criminal Procedure by the
police before issuing transit remand. However, by the time the High Court
order came, the Chief Judicial Magistrate Faridabad had granted transit
remand of Bharadwaj to Maharashtra police. Following the HC directive, the
CJM recalled the first order, and held that she should not be taken out of
Haryana. Arun Ferreira is a Mumbai based activist, who was arrested in 2007
on suspected Maoist links. He was acquitted of all charges in 2014. He has
written a prison memoir titled "Colours of Prison", describing the torturous
and inhuman treatment meted out to prison inmates. After his release from
prison, Ferreira took law degree and enrolled as a lawyer, taking up cases of
persons languishing in prisons without legal representation. Mumbai-based
Vernon Gonsalves was a social activist in Chandrapur district of Maharashtra.
He had earlier faced UAPA charges on suspected maoist links and was made
accused in 20 cases. He was released in 2013 after serving sentence on
conviction under UAPA. Varavara Rao is a 78-year-old Telugu poet. He is
known for his poems calling for revolution by the workers' class. He founded
a group of revolutionary writers named "Virasam". He had undergone
imprisonment several times for his radical ideas.

https://www.livelaw.in/breaking-not-a-case-of-arrest-for-dissent-
sc-turns-down-plea-for-sit-in-bhima-koregaon-case/

BRIEF NARRATION OF THE REST OF RECENT JUDGMENTS OF SC

Foreign Law Firms Can’t Set Up Office In India: Foreign Lawyers Can
Advice Clients On ‘Fly in And Fly Out’ Basis [Bar Council of India V. A. K.
Balaji&Ors.] Supreme Court of India held that foreign law firms cannot set up
offices in India or practice in Indian Courts. But they can give advice to
Indian clients on ‘fly in and fly out’ mode in temporary basis. The Bench also
directed the Centre and BCI to frame rules. The Supreme Court bench of
Justice Adarsh Kumar Goel and Justice UU Lalit was delivering the Judgment
in the foreign law firms case.

https://www.livelaw.in/the-good-and-bad-read-35-important-
supreme-court-judgments-of-2018/

AMBIGUITY TAX EXEMPTION

Benefit of Ambiguity In Tax Exemption Notification Should Go

In Favour Of Revenue Department [Commissioner of Customs
(Import), Mumbai vs. M/s. Dilip Kumar and Company] In an
important judgment in the realm of taxation laws the Constitution
bench of the Supreme Court ruled that exemption notifications
should be interpreted strictly and that the burden of proving
applicability would be on the assessee to show that his case comes
within the parameters of the exemption clause or exemption
notification.

DEFAULT BAIL

Accused Is Entitled To Default Bail Even If Charge Sheet Returned Due

To Technical Reason, No Court Can Extend Remand Period U/S 167(2)
Beyond 90 Days [Achpal @ Ramswaroop&Anr. V. State of Rajasthan] A two
Judge Bench of the Supreme Court on Monday held that an accused is
entitled to default bail under Section 167(2) of Code of Criminal Procedure
even if the charge sheet filed by police was returned by the Magistrate for
technical reasons. The Court also held that the provisions of the Code do not
empower anyone to extend the period within which the investigation must be
completed nor does it admit of any such eventuality.

PROFESSIONAL COURT MANAGERS

SC Directs Appointment Of Professionally Qualified Court

Managers In All Principal District And Sessions Courts For Better
Court Administration [All India Judges Association &Ors. V. Union of
India &Ors.] Lamenting how judicial infrastructure has been given
relatively low importance with infrastructure in courts in interior
parts of the country being on ventilator, the Supreme Court
underlined some vital features which have to provide in all court
complexes across India including court managers with MBA degree
for ensuring efficient court administration in every judicial district.

SLP AGAINST DEATH SENTENCE SLP

 Against Death Sentence Shall Not Be Dismissed Without Giving
Reasons [BabasahebMarutiKamble V. State of Maharashtra] The Supreme
Court held that Special Leave Petitions filed in those cases where death
sentence is awarded by the courts below, should not be dismissed without
giving reasons, at least qua death sentence.The three judge bench
comprising Justice AK Sikri, Justice Ashok Bhushan and Justice Indira
Banerjee has recently recalled two such orders in two different cases in which
it had dismissed SLPs filed by the accused against imposition of death
penalty.

LOW VISION MBBS

Persons With Low Vision Can’t Be Denied Reservation In

Admission To MBBS Course [PurswaniAshutosh V. Unionof India
&Ors.] In a decision with wide ramifications, the Supreme Court
bench upheld the claim of a medical aspirant with “low vision” to be
admitted in MBBS course in the category of persons with benchmark
disability while holding that provisions of the Rights of Persons with
Disabilities Act, 2016 which consider low visibility as a benchmark
disability are binding on the Medical Council of India.

WITNESS EXAMINATION IN CRIMINAL TRIAL

Directions Issued On Examination Of Witnesses In Criminal Trial [State

of Kerala V. Rasheed] The Supreme Court, on Tuesday, listed out ‘practical
guidelines’ to be followed by trial courts in the conduct of a criminal trial, ‘as
far as possible’. While setting aside a Kerala High court order, the bench
comprising of Justice Abhay Manohar Sapre and Justice Indu Malhotra
observed that while deciding an Application to defer cross examination under
Section 231(2) of the Cr.P.C. a balance must be struck between the rights of
the accused, and the prerogative of the prosecution to lead evidence.

CAUVERY

The State of Karnataka Directed to release 177.25 TMC of

water, instead of the 192 TMC, to the state of Tamil Nadu [State of
Karnataka vs. State of Tamil Nadu] A three-judge bench headed by
Chief Justice, in its judgement on the Cauvery Water Dispute
between the states of Karnataka, Tamil Nadu and Kerala and the UT
of Puducherry, partially allowing the appeal preferred by the state of
Karnataka in 2007 against the order of the Cauvery Water Disputes
Tribunal. The bench directed the state of Karnataka to release 177.25
TMC of water, instead of the 192 TMC, to the state of Tamil Nadu.
https://www.livelaw.in/the-good-and-bad-read-35-important-
supreme-court-judgments-of-2018/

Recent judgments of SC edited and compiled by Kamlesh kumar singh, NLSIU, Banglore (
Sources- Live law)