1.

IN RE INTERPLAY BETWEEN ARBITRATION AGREEMENTS

UNDER THE ARBITRATION AND CONCILIATION ACT 1996
AND THE INDIAN STAMP ACT 1899. V.
2023 INSC 1066 (13 December 2023)
Justices:
Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Sanjay K. Kaul,
Justice Sanjiv Khanna, Justice Bhushan R. Gavai, Justice Surya Kant,
Justice Jamshed B. Pardiwala, Justice Manoj Misra

Question(s):
Whether an arbitration clause in an unstamped or inadequately stamped
contract is enforceable?
Factual Background:
In 2011, a Division Bench (two judges) of the Supreme Court in SMS Tea
Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd [2011 INSC 508] (“SMS Tea
Estates”) held that an arbitration agreement in an unstamped contract is
invalid. In February 2020, a three-judge bench of the Supreme Court in
Dharmaratnakara Rai Bahadur Arcot Narainswamy Mudaliar Chattram v.
Bhaskar Raju and Brothers [2020 INSC 194] (“Bhaskar Raju”) followed this
ruling in SMS Tea Estates with approval.
In 2021, a three-judge bench of the Supreme Court in N N Global Mercantile
(P) Ltd. v. Indo Unique Flame Ltd. [2021 INSC 12] (“N N Global 1”) took a
view contrary to SMS Tea Estates and held that non-stamping of the contract
would not invalidate the arbitration agreement contained in it and the
arbitration agreement can be acted upon. Given these conflicting decisions of
the Court, a Constitution Bench (five judges) was set up to decide the issue.
In December 2022, a curative petition (final remedy to reconsider a decision
by the Supreme Court) was filed in the Supreme Court for reconsideration of
the Bhaskar Raju decision. Before the curation petition was finally decided,
in April 2023, a Constitution bench of the Supreme Court by a 3:2 majority in
N N Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. [2023 INSC 423]
(“N N Global 2”) held that N N Global 1 was incorrect and upheld the view
taken in SMS Tea Estates. The Court held that an unstamped contract is void
(does not have any legal effect) and hence, an arbitration clause in an
unstamped contract is not enforceable.
Later, while hearing the curative petition in Bhaskar Raju and considering the
larger ramifications and consequences of the decision in N N Global 2 , the
Supreme Court referred the case to a Seven-Judge Bench. The present case
(In Re: Interplay between Arbitration Agreements under The Arbitration and
Conciliation Act 1996 and The Indian Stamp Act 1899) is this reference to
the Seven-Judge Bench to decide the correctness of the Constitution Bench
decision in NN Global 2.
Decision of the Supreme Court:
The Supreme Court held that that arbitration agreement or arbitration clause
contained in an unstamped or inadequately stamped contract is valid and can
be acted upon. The Court also held that a contract which is not stamped or is
inadequately stamped is not void but is only inadmissible in evidence. The
Court declared that the decisions in N N Global 2 and SMS Tea Estates were
incorrect. The judgment of the Court was authored by Chief Justice
Chandrachud. Justice Sanjiv Khanna wrote a separate concurring opinion.
Reasons for the Decision:
The difference between inadmissibility and voidness
The Supreme Court noted that a void agreement is unenforceable in a Court
of law i.e. it cannot be given effect to, while an inadmissible document can
merely not be introduced as evidence in a Court of law (¶44). The Court
observed that while Section 35 of the Indian Stamp Act 1899 (“Stamp Act”)
makes an unstamped or inadequately stamped document inadmissible in
evidence, non-stamping under the Stamp Act does not render the document
void (¶48, ¶11 J. Khanna). The Court noted that the non-payment of stamp
duty is a curable defect as the Stamp Act itself provides under Section 42(2)
that once the required stamp-duty is paid, the instrument will become
admissible in evidence (¶48). In contrast, the Court noted that there is no
procedure by which a void agreement can be cured (¶48).
Minimising Judicial Interference
The Supreme Court noted that one of the main objectives of the Arbitration
and Conciliation Act 1996 (“Arbitration Act”) is to minimise the supervisory
role of courts in the arbitral process (¶74). Section 5 of Arbitration Act states
that for matters covered by the Arbitration Act, no court can interfere unless
the law explicitly allows for it. Section 5 shows the legislative intent of
limiting judicial intervention during the arbitral process (¶75). Section 8 of
the Arbitration Act mandates courts to refer the parties to arbitration if there
is prima facie a valid arbitration agreement (¶136). When referring parties to
arbitration, the court cannot conduct a mini-trial by allowing parties to
produce evidence regarding validity of an arbitration agreement (¶155).
Section 11 of the Arbitration Act deals with the appointment of arbitrators,
Section 11 allows intervention by courts only when parties fail to appoint an
arbitrator (¶139). Section 11(6A) inserted by Arbitration Amendment Act of
2015 states that while appointing an arbitrator, the Court shall confine itself
to the examination of existence of an arbitration agreement (¶144). The Court
found that the intention of the legislature in adding Section 11(6A) was to
limit the scope of the referral court’s jurisdiction to only one aspect – the
existence of an arbitration agreement (¶145).
The doctrine of competence-competence
The Supreme Court noted that the doctrine of kompetenz-kompetenz (also
known as competence competence) states that arbitrators are empowered to
decide on their own jurisdiction (¶115). The doctrine of competence-
competence allows the arbitrators to decide on all issues arising out of the
underlying contract, including the existence and validity of the arbitration
agreement (¶116). Enshrining the competence-competence principle in Indian
arbitration law, Section 16 of the Arbitration Act empowers the arbitral
tribunal to rule on its own jurisdiction, including ruling on any objections
with respect to the existence or validity of arbitration agreement (¶120, ¶28 J.
Khanna).
The Court noted that once the arbitrators decide a matter, Section 34 of the
Arbitration Act allows applications for setting aside arbitral decisions. The
Court noted that one of the grounds on which an arbitral award can be set
aside is that the arbitration agreement is not valid under law. This indicates
that the Arbitration Act does not contemplate the court determining the
validity of an arbitration agreement before the arbitrators have had a chance
to decide the issue first (¶121).

Justice Khanna in his separate opinion held that an objection related to

insufficient stamping or non-stamping of the underlying contract can be
decided by the arbitrators (¶1 J. Khanna).
Arbitration Act’s silence on stamp duty
The Supreme Court noted that the Arbitration Act is a self-contained code
and hence, provisions of other laws cannot interfere with the working of the
Arbitration Act, unless the Act specifically allows for it (¶85). The Court
noted that Parliament was aware of the Stamp Act when it enacted the
Arbitration Act, yet, the Arbitration does not specify stamping as a pre-
condition to the existence of a valid arbitration agreement (¶177).
Intent and Purpose of Stamp Act
The Court noted that the Stamp Act is a fiscal legislation to protect the
interests of revenue for the government (¶59), it is not intended to arm
litigants with a weapon of technicality by which they can delay the resolution
of a case (¶60, ¶19 J. Khanna).
The Court held that the arbitrators will be bound by the Stamp Act and will
have authority to enforce the provisions of the Stamp Act (¶184). The Court
declared that this interpretation of the law ensures that the provisions of the
Arbitration Act are given effect to while not detracting from the purpose of
the Stamp Act (¶194).

2. COX AND KINGS LTD. V. SAP INDIA PVT. LTD.

2023 INSC 1051 (6 December 2023)
Justices: Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Hrishikesh
Roy, Justice Pamidighantam S. Narasimha, Justice Jamshed B. Pardiwala and
Justice Manoj Misra
Question(s): (i) Can parties who have not signed a contract be made parties to
an arbitration concerning that contract? If yes, then under what circumstances
can they be made parties?
(ii) Whether the Group of Companies Doctrine (“GoC Doctrine”) is valid
and applicable in Indian arbitration law.
Factual Background:
In December 2020, the Petitioner (Cox and Kings Limited) entered into a
Software Licensing Agreement with SAP India Private Limited (“SAP
India”). Under the Agreement, the Petitioner was made a licensee of software
which was developed and owned by SAP India.
In 2015, while the Petitioner was in the process of developing its own e-
commerce platform, SAP India recommended its software, Hybris Solution to
the Petitioner. Three new agreements were entered into by the two
companies, one of which was the ‘General Terms and Conditions Agreement’
containing an Arbitration Clause.
Encountering difficulties in implementing the software, the Petitioner sought
assistance from SAP SE, the parent company of SAP India based in Germany.
However, the project faced setbacks and was eventually terminated by the
Petitioner in November 2016. The Petitioner demanded a refund of ?45 crore.
In response, SAP India claimed wrongful termination and demanded ?17
crore. The Petitioner sent notices to initiate arbitration to both SAP India and
SAP SE. However, SAP SE was not a signatory to any of the agreements.
SAP India did not appoint an arbitrator. Subsequently, the Petitioner
approached the Supreme Court seeking the appointment of an arbitrator
under Section 11 of the Arbitration and Conciliation Act, 1996 (“Arbitration
Act”). The Petitioner contended that SAP SE, by assuming full responsibility
for the project, implicitly consented to be bound by the agreement. Moreover,
SAP India was entirely owned by SAP SE. This legal concept of
incorporating a non-signatory into an arbitration agreement is recognized as
the Group of Companies Doctrine. Given the importance of the legal issue,
the Three-Judge bench of the Supreme Court referred the case to a
Constitution Bench (five judges).

Decision of the Supreme Court:

The Supreme Court affirmed the validity of the Group of Companies
Doctrine in Indian arbitration law, ruling that companies within a corporate
group, even if not explicit signatories to an arbitration agreement, could be
bound by the agreement. Regarding exactly when non-signatories may be
bound, the Court ruled that such determinations should be left to the
competence of arbitral tribunals on a case-to-case basis. The judgment of the
Court was authored by Chief Justice D.Y. Chandrachud, with Justice P. S.
Narasimha authoring a concurring opinion.
Reasons for the Decision:
Non-signatories can be party to an arbitration agreement

The Supreme Court explained that while the primary approach to identify
parties in an arbitration is to look at the signatories to the arbitration
agreement, this does not preclude non-signatories from being considered as
parties to the arbitration (¶66 J. Chandrachud). Even parties that have not
signed an arbitration agreement can demonstrate their intention and consent
to enter into a legal relationship and be bound by the arbitration agreement
through other actions (¶¶66-67 J. Chandrachud). The test lies in assessing
whether these non-signatories intended to establish legal relations with the
parties of the arbitration agreement (¶66 J. Chandrachud, ¶14 J. Narasimha).
The Supreme Court held that while a written arbitration agreement is
mandatory, the form of recording is irrelevant (¶78 J. Chandrachud, ¶15(ii) J.
Narasimha). Under section 7 of the Arbitration Act, an agreement is
considered in writing when parties formally sign it, when there is
documented evidence of their consent, or when an exchange of claims and
defence acknowledges its existence (¶¶71-73 J. Chandrachud). The Court
clarified that the common goal in these circumstances is to ascertain the
parties' mutual intention to be bound by the arbitration agreement (¶73 J.
Chandrachud, ¶¶10-15 J. Narasimha). Being a signatory is not necessary.
(¶76 J. Chandrachud).
Group of Companies Doctrine applicable in India
The Supreme Court defined ‘group of companies’ as a set of privately and
publicly owned firms in different businesses (¶82 J. Chandrachud). Even
though each firm is an independent legal entity, they all follow a common
authority, and are linked by trust-based relationships (¶82 J. Chandrachud).

The GoC Doctrine allows a non-signatory company within a ‘group of

companies’ to either benefit from or be bound by an arbitration agreement
made by its affiliated companies (¶98 J. Chandrachud, ¶38 J. Narasimha).
This applies when circumstances indicate that all parties, both signatories and
non-signatories, intended to be bound by the agreement (¶98 J. Chandrachud,
¶38 J. Narasimha). The GoC Doctrine takes a practical approach,
consolidating all closely connected parties in a single forum, which is
especially useful in disputes involving multiple agreements and parties (¶97
J. Chandrachud). Furthermore, the Court clarified that the existence of ‘group
of companies’ is a question of fact, which courts have to assess (¶102 J.
Chandrachud).
The Supreme Court ruled that the following factors must be considered when
applying this doctrine: (i) mutual intent of the parties
(ii) the relationship of the non-signatory to the party which is a signatory to
the agreement
(iii) commonality of subject-matter
(iv) composite nature of the transaction, and
(v) performance of the contract
(¶¶110-111 J. Chandrachud, ¶40 J. Narasimha).
The Supreme Court held that to involve a non-signatory, a party must present
strong evidence demonstrating the conscious and deliberate participation of
the non-signatory (¶122 J. Chandrachud). Simply showing that the companies
work together as a single economic unit isn’t sufficient; they must actively
collaborate on a common project (¶¶113-114 J. Chandrachud). Furthermore,
the Court opined that the GoC Doctrine exists independently in the Indian
arbitration law, based on the principle of the mutual intent of parties in an
agreement (¶165(g) J. Chandrachud, ¶50, ¶54 J. Narasimha).
Standard of determination by court at referral stage
The Supreme Court explained that Section 8 of the Arbitration Act requires
the court to conduct a preliminary check to assess if the arbitration agreement
is valid, and Section 11 allows the Supreme Court and High Courts to appoint
arbitrators if the parties don't follow the agreed procedure of appointment
(¶154 J. Chandrachud).
The court will decide on the agreement's validity and the parties involved in
two situations: first, when a signatory wants to include a non-signatory to
arbitration, and second, when the non-signatory itself wants to join (¶164 J.
Chandrachud). However, for complex deals, it's better for arbitral tribunals,
not the court, to decide if a non-signatory is really part of the arbitration
agreement. This aligns with Section 16 of the Arbitration Act, which allows
the tribunal to decide its own authority (¶164 J. Chandrachud).

3. THE STATE OF PUNJAB V. PRINCIPAL SECRETARY TO THE

GOVERNOR OF PUNJAB
2023 INSC 1017 (10 November 2023)
Justices:
Chief Justice Dr. Dhananjaya Y. Chandrachud, Justice Jamshed B.
Pardiwala, Justice Manoj Mishra
Question(s):
(i) Whether the Governor can withhold action on bills which have been
passed by the State Legislature.
(ii) (ii) Whether it is permissible for the Speaker to reconvene a
Legislative Assembly session which has been adjourned sine die but
has not been prorogued.
Factual Background:
On 22 February 2023, the Council of Ministers of the Government of Punjab
forwarded a recommendation to the Governor of Punjab seeking the
summoning of the Punjab Vidhan Sabha for its Budget Session commencing
on 3 March 2023. The Governor refused to do so, on the ground that he was
seeking legal advice. This led to the first round of litigation between the State
of Punjab and the Governor of Punjab. Following the decision of the
Supreme Court on 28 February 2023, he summoned the assembly and the
Budget session was convened on 3 March 2023.
The Budget session of the Punjab Legislative Assembly was adjourned sine
die (dismissed for an unspecified period) by the Speaker on 23 March 2023.
The Assembly was reconvened and four bills were passed on 19 and 20, June
2023. The Governor expressed his doubt on the legitimacy of these bills and
stated that the calling of the session was illegal, against the accepted
procedures and practice of the legislature, and against the provisions of the
Constitution.
The inaction by the Governor of Punjab regarding the four bills led to the
present second round of the litigation. The Governor had neither assented to
these bills nor were they returned when the petition was admitted by the
Supreme Court on 6 November 2023.

Decision of the Supreme Court:

The Three-Judge-Bench of the Supreme Court allowed the petition and held
that the Governor cannot withhold action indefinitely on bills which have
been passed by the State Legislature. The Court also ruled that the Speaker
can reconvene a session of the Legislative Assembly which has not been
prorogued. The judgment of the Court was authored by Chief Justice
Chandrachud.
Reasons for the Decision:
No power to withhold assent indefinitely
The Supreme Court referred to Article 200, which states that the Governor
must either assent to the bill or return it to the legislature “as soon as
possible”. The Court held that the expression “as soon as possible” has a
significant constitutional content and describes the expedient manner in
which the Governor must act once a bill is passed (¶24). Not taking action on
bills for indefinite periods of time is inconsistent with the phrase “as soon as
possible” and the mandate of Article 200. The Constitution contains this
language bearing in mind the importance attached to the power of legislation
which squarely lies in the domain of the state legislature. (¶24).
The Supreme Court ruled that if the Governor decides to withhold assent
under Article 200, the logical course of action is to return the bill to the state
legislature for reconsideration (¶25).
Reconvening of assembly after adjournment sine die is permissible
The Supreme Court also held that Rule 16 of the Rules of Procedure of the
Punjab Legislative Assembly recognises a situation where the Speaker
reconvenes a sitting of the Legislative Assembly which has been adjourned
sine die but not prorogued (¶34). It referred to Ramdas Athawale v. Union
of India (2010 INSC 177) in which it was held that an adjournment is an
interruption in the course of one and the same session, whereas a prorogation
terminates a session.
The Court observed that established legislative practice across various
legislative assemblies in the country distinguished between an adjournment
sine die and prorogation of the session of the House. Therefore, the Speaker
was empowered to reconvene the Punjab Legislative Assembly as it had only
been adjourned and not prorogued (¶37).

4. MANISH SISODIA V. CENTRAL BUREAU OF INVESTIGATION

2023 INSC 956 (30 October 2023)
Justices: Justice Sanjiv Khanna and Justice Sarasa V. N. Bhatti
Question(s):
Whether Manish Sisodia (“Appellant”) is entitled to bail.
Factual Background:
The Appellant was the former Deputy Chief Minister and Excise Minister of
Delhi. He was arrested and taken into custody by the Central Bureau of
Investigation (“CBI”) and the Enforcement Directorate (“ED”) on 26
February 2023 and 9 March 2023 respectively, in connection with an
investigation pertaining to the Delhi Liquor Excise Policy 2021-22 (“Excise
Policy”).
The CBI filed two chargesheets which charged the Appellant for offences
under Sections 201 (disappearing evidence) and 420 (cheating) of the Indian
Penal Code, 1860 (“IPC”) and Sections 7, 7A, 8 and 12 (taking and offering a
bribe) of the Prevention of Corruption Act, 1988 (“PCA”). The ED filed a
criminal complaint accusing the Appellant of money laundering under the
Prevention of Money Laundering Act, 2002 (“PMLA”).
The crux of the allegations was that the Appellant had abused his authority as
a public servant by formulating a new Liquor Excise Policy for Delhi which
favoured certain wholesale distributors in return for bribes and kickbacks to
the Appellant and his associates. It was contended by the CBI and ED that
these bribes amounted to around Rupees One Hundred Crores and The same
was laundered and used by the Appellant in support of his political party.
The Appellant had been denied bail in both the cases (that of the CBI and of
the ED) by the Trial Court and the High Court of Delhi. The Appellant
appealed to the Supreme Court seeking bail.
Decision of the Supreme Court:
The Supreme Court refused to grant bail to the Appellant in light of the
serious allegations in the chargesheet filed by the ED regarding the offences
under the PMLA that the Court found were tentatively supported by
evidence. However, the Court unequivocally stated that the Court found all
disputed factual and legal issues were left open and will be decided in trial
before the Trial Court. The judgment of the Court was authored by Justice
Khanna.
The Supreme Court gave the Appellant the freedom to file a fresh bail
application in case there was a change in circumstances or if the trial
proceeded slowly over the next three months. The Court also allowed the
Appellant to file interim bail applications in case of any medical or personal
or family emergency.

Reasons for the Decision:

Legal Principles to be followed for Grant of Bail under the PMLA
The Supreme Court referred to the case of Vijay Madanlal Choudhary v.
Union of India [2022 INSC 757] (“Vijay Madanlal”) where the standard of
granting bail under the PMLA was clarified (¶8). According to Vijay
Madanlal, in order to grant bail, a court need not give detailed reasons or
examine the evidence in detail but must arrive at a tentative finding on
reasonable grounds that the accused is not guilty of an offence under the
PMLA (¶8). The Court followed the mandate laid down by Vijay Madanlal in
deciding the present bail application (¶9).
Grounds for Refusal to Grant Bail to the Appellant
The Supreme Court observed that the allegations in the ED’s criminal
complaint concerning illegal gains due to changes brought about by the
Excise Policy was tentatively supported by the facts and evidence (¶21).
Specifically, this pertained to the fact that certain wholesale distributors had
allegedly made exorbitant profits at the expense of the government exchequer
and the general public under the new Excise Policy (¶21).
Additional Observations
The Supreme Court highlighted its concern regarding the long period of
incarceration undergone by the Appellant (¶26). Emphasizing that the right to
a speedy trial is a fundamental right under Article 21 of the Constitution, the
Court clarified that an accused should not have to wait until he had
undergone imprisonment for the specified period of the offence he is charged
with before being granted bail under the PMLA (¶26).
The Supreme Court also relied on the assurance by the CBI that the trial
would be concluded within six to eight months and said that if the case was
not decided within this time, then the Appellant may be granted bail (¶28).
The Court further noted that if the trial was proceeding slowly after three
months, the Appellant could re-apply for bail (¶29).

5. DR. BALRAM SINGH V. UNION OF INDIA

2023 INSC 950 (20 October 2023)
Justices:
Justice Shripathi R. Bhat, Justice Aravind Kumar
Question(s): A petition seeking implementation of Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993
(“Manual Scavengers Employment Act, 1993”) and the Prohibition of
Employment as Manual Scavengers and Their Rehabilitation Act, 2013
(“Manual Scavengers Rehabilitation Act, 2013”).
Factual Background:
A petition was filed under Article 32 of the Constitution of India, seeking
directions to the Respondents (Union of India and all the States and Union
Territories) to implement provisions of the Manual Scavengers Employment
Act, 1993 and Manual Scavengers Rehabilitation Act, 2013. The Manual
Scavengers Employment Act, 1993 was enacted to prohibit the employment
of manual scavengers and the construction of dry latrines. The Manual
Scavengers Rehabilitation Act, 2013 was enacted to provide for the
rehabilitation of individuals previously engaged in manual scavenging.
The Petitioner claims that despite these legislations, manual scavenging
continues due to the Respondents' failure to implement essential provisions of
these statutes such as failure to conduct surveys for identification of manual
scavengers in all districts. The Petitioner sought a blanket ban on manual
scavenging while simultaneously ensuring adequate rehabilitation and
employment opportunities for those involved in these practices.
The Respondent contended that the Manual Scavengers Rehabilitation Act,
2013 does not mandate a nationwide survey of manual scavengers by the
Union Government. Instead, it requires localized surveys by local bodies. It
was highlighted that the government incurred an expenditure of
approximately ten crore for conducting a survey in 2013, followed by
payment of compensation to identified manual scavengers of approximately
55 crores.
Decision of the Supreme Court:
The Supreme Court directed the Union Government to ensure phased
eradication of manual sewer cleaning, by developing policies and issuing
directives to all relevant bodies, including corporations, railways,
cantonments, and agencies under its jurisdiction. Additionally, it should
provide essential guidelines to ensure that outsourced sewer cleaning tasks do
not necessitate individuals entering sewers for any reason.

State Governments were directed to align their policies with Union

guidelines, providing comprehensive rehabilitation measures for sewage
workers and their families. The Court highlighted the need for a significant
increase in compensation for sewer deaths and disabilities, alongside
mechanisms for contractor accountability. The compensation amount for
sewer deaths was raised to thirty lakhs. Additionally, the Court instructed the
establishment of educational scholarships for victims' dependents and the
coordination of legal authorities in policy implementation. The judgment of
the Court was authored by Justice Bhat.
Reasons for the Decision:
Emancipatory nature of Act
The Supreme Court observed that the Manual Scavengers Rehabilitation Act,
2013 was enacted to advance Fundamental Rights guaranteed under Articles
15, 17, 23 and 24 of the Constitution of India, to shift away from oppressive
societal structures towards dignified employment (¶9). Section 11(7) read
with section 6(2) of the Manual Scavengers Rehabilitation Act, 2013 liberates
individuals from practice of manual scavenging (¶49). The Act must therefore
be interpreted to promote fraternity and assure the dignity of the individual
(¶49).
Insufficiency of the Surveys/Inaccuracy of Data
The Supreme Court highlighted that the data collected from surveys in 2013,
2018, and later years has inconsistencies and contradictions, undermining the
credibility of the surveys (¶¶57- 58). The failure to identify manual
scavengers servicing insanitary latrines, as evidenced by data from
Cantonment Boards, highlights the shortcomings of the surveys in capturing
the true extent of manual scavenging (¶63). Furthermore, the National
Commission for Safai Karamcharis has consistently raised concerns about the
accuracy of data on manual scavengers since 2015-16, indicating a lack of
reliable figures and the need for authentic data collection (¶64).
Non-constitution of Committees and Institutions
The Supreme Court held that institutional shortcomings, such as the non-
constitution and non-functioning of key bodies mandated by the 2013 Act,
including the State Commissions, hinder effective implementation of the Act
(¶¶67-69). The Central Monitoring Committee, tasked with coordinating and
monitoring implementation efforts, has failed to meet regularly (¶74).
Vigilance Committees, crucial for overseeing rehabilitation efforts and
monitoring compliance, are either non-existent or non-functional in many
states (¶¶77-78).
The Court held that the failure to constitute Survey Committees at the state
and district levels impedes the conducting of comprehensive surveys to
identify manual scavengers and formulating effective rehabilitation plans
(¶79).

Wider outlook for Rehabilitation

The Supreme Court held that the first step towards rehabilitation is
identifying manual scavengers through a real and undisputable survey (¶¶51-
52). Economic measures alone are not sufficient for upliftment of the family;
rehabilitation demands a combination of both long-term and short-term socio-
economic measures like scholarships (¶94).

6. SUPRIYO @ SUPRIYA CHAKRABORTY V. UNION OF INDIA

2023 INSC 920 (17 October 2023)
Justices:
Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Sanjay K. Kaul,
Justice Shripathi R. Bhat, Justice Hima Kohli, Justice Pamidighantam S.
Narasimha
Question(s):
(i) Do members of the lesbian, gay, bisexual, transgender, queer, and
intersex (“LGBTQIA+”) community have a right to marriage? If
yes, then can the Supreme Court of India make a declaration to this
effect?
(ii) (ii) Does the non-inclusion of LGBTQIA+ marriages under the
Special Marriage Act, 1954, amount to unconstitutional
discrimination under Article 14 of Constitution of India? (iii) Do
members of the LGBTQIA+ community have a right to form civil
 unions, and does the State have a corresponding duty to legally
recognise such civil unions?
Factual Background:
Two same-sex couples filed writ petitions in the Supreme Court under Article
32 of Constitution of India seeking legal recognition of same-sex marriages.
The Petitioners argued that Section 4(c) of the Special Marriage Act, 1954
(“SMA”), which defines marriage as a union between a man and a woman,
was unconstitutional because it discriminates against same-sex couples,
denying them essential benefits of marriage. This includes opportunities such
as adoption and surrogacy and benefits under succession laws and insurance
policies. The Petitioners contended that by not recognising same-sex
marriage, the Government was infringing their fundamental right to equality,
freedom of expression, and human dignity.

The Union of India (Respondents) argued that marriage is a social institution

which flows from tradition, personal law, and religion and needs social
acceptability, and only heterosexual marriages have such acceptability. The
Union of India argued that the Constitution does not recognize a fundamental
right to marry. Further, the SMA is not discriminatory, as Parliament never
contemplated including non-heterosexual unions during its enactment.
Further, the Union argued that interpreting the SMA to cover non-hetrosexual
couples would lead to absurd and unworkable results and impact various
other statutes related to adoption, succession, surrogacy, and maintenance
which all contemplated as a union between a man and a woman. Only
Parliament has the authority to bring about such a change.
Decision of the Supreme Court:
The Constitution Bench (five judges) wrote four opinions. All five Judges
found that there is no fundamental right to marry under the Constitution. All
five Judges further held that the Special Marriage Act, 1954 allows marriage
only between a male and a female and cannot be interpreted to cover non-
hetrosexual marriages as this would amount to an extensive re-writing of the
law beyond the role of the Court. However, the Court did not strike down the
SMA as unconstitutional.
A majority of three judges (Chief Justice Chandrachud, Justice Bhat, and
Justice Kohli) expressly stated that transgender persons in heterosexual
relationships as well as Intersex persons who identify as either male or
female have the right to marry under existing law.
By a 3:2 majority, the Supreme Court held that non-heterosexual couples do
not have the right to enter into a civil union unless the legislature changes the
laws. This 3:2 majority further held that unmarried couples (including
queer/non-heterosexual couples) do not have the right to jointly adopt a child
under the Juvenile Justice (Care and Protection of Children) Act, 2015 (“JJ
Act”). The opinions of Justice Bhat (joined by Justice Kohli) and Justice
Narasimha formed the majority opinion of the Court on these issues.
The minority found that non-hetrosexual couples have a right to enter into a
civil union. The minority found that a failure to recognise civil unions would
violate Article 15 of the Constitution. The minority further interpreted
Section 57 of the JJ Act to allow unmarried couples to adopt and
consequently struck down Regulation 5(3) of the Central Adoption Resource
Authority (“CARA”) Adoption Regulation, which limits adoption only to
single individuals and married couples who are in a stable marital
relationship. The opinions of Justice Chandrachud and Justice Kaul
constituted the minority opinion of the Court.

The Supreme Court acknowledged that members of the LGBTQIA+

community faced a variety of legal disadvantages and directed the Union
Government to constitute a committee chaired by the Union Cabinet
Secretary to set out the rights and benefits queer couples in civil unions
would be entitled to.
Reasons for the Decision:
No fundamental right to marry
The Supreme Court found that the Constitution does not expressly recognize
a fundamental right to marry (¶185 J. Chandrachud, ¶50 [Link], ¶4 J.
Narasimha, ¶3 J. Kaul). It pointed out that the laws relating to the institution
of marriage are enacted by the Parliament (¶¶182-183 J. Chandrachud, ¶¶45-
47 J. Bhat, ¶4 J. Narasimha, ¶3 J. Kaul). However, the Court found that the
institution of marriage cannot be elevated to the realm of a fundamental right
based on the importance people accord to it or the content of marriage laws
(¶340 J. Chandrachud, ¶49 J. Bhat). As the right to marry is a personal
preference which confers social status, it is not an enforceable right which
courts can compel the government to provide (¶49 J. Bhat).
SMA cannot be interpreted to cover same-sex marriages
All five judges held that reading gender-specific terms in the SMA (e.g.,
“man” and “woman” or “bride” and “bridegroom”) gender neutrally (to mean
“spouse”) to allow same sex marriages would involve rewriting the law,
which was the role of Parliament and not the Court (¶208 J. Chandrachud,
¶103 J. Bhat, ¶4 J. Narasimha, ¶3 J. Kaul). The Court noted that various
provisions of the SMA specifically referred to ‘men’ and ‘women’ and treated
them differently (e.g., specifying different legal ages for marriage and
different rights on issues of divorce, maintenance, and inheritance) (¶¶190-
191 J. Chandrachud, ¶101 J. Bhat). Thus, applying the SMA to same-sex
couples would lead to numerous complications when applying the gender-
specific provisions of the law (¶102 J. Bhat, ¶4 J. Narasimha, ¶17 J. Kaul).
None of the judges struck down the SMA as unconstitutional. Chief Justice
Chandrachud declined to strike down the SMA as this would make it
impossible for interfaith couples to marry under Indian law and defeat the
SMA’s progressive intent (¶207 J. Chandrachud). Justice Kaul found that the
SMA’s failure to provide for same-sex marriage was discriminatory but did
not strike it down for the same reasons as the Chief Justice (¶18 J. Kaul).
Justice Bhat held that the SMA was not discriminatory solely because it
failed to provide for non-hetrosexual marriages, noting that homosexuality
itself was criminalised when the SMA was enacted in 1954 (¶82, ¶85 J.
Bhat).

No legal recognition for civil unions of LGBTQIA+ couples

All five judges held that queer persons have the right to relationships and
choice of partners under Article 21 (¶233 J. Chandrachud, ¶70 J. Bhat).
However, a majority of three judges (Justices Bhat, Kohli, and Narasimha)
did not recognise a right for non-hetrosexual couples to form legally
recognised civil unions (¶70 J. Bhat, ¶16 J. Narasimha). They noted that
recognising civil unions would involve creating a separate legal framework
for such unions, including registration, eligibility, age restrictions, and other
rights related to marriage, which is beyond the power of the Court (¶69 J.
Bhat). Justice Narasimha, concurring with Justice Bhat, added that mandating
the state to recognize civil unions could violate the doctrine of separation of
powers (¶17 [Link]).
However, Chief Justice Chandrachud and Justice Kaul (in the minority) ruled
that queer couples have the right to enter into a civil union and the State has a
corresponding duty to recognise such unions (¶340(i) J. Chandrachud, ¶11 J.
Kaul). This right falls under Articles 19 and 25, encompassing freedom of
speech, expression, association, and conscience (¶¶223, 239 J. Chandrachud).
The minority found the right to form a civil union is essential for the full
enjoyment of intimate associations (¶¶218, 223 J. Chandrachud). Justice
Chandrachud’s opinion outlined some of the benefits that would accrue to
civil unions, such as police protection from interference with their marriage
(¶¶282-286 J. Chandrachud), and as discussed below, the right to adopt.
No right for unmarried or non-hetrosexual couples to adopt
A majority of three judges (Justices Bhat, Kohli, and Narasimha) held that
Section 57(2) of JJ Act does not permit adoption by unmarried couples
(¶¶121-122 J. Bhat). Justice Bhat held that Section 57 seeks to protect the
best interest of the child, and applying the law to unmarried couples would
fail to protect an adopted child if the marriage subsequently breaks down
(¶¶123, 126 J. Bhat). Thus, the majority held that unmarried couples
(including non-hetrosexual couples) cannot adopt.
Chief Justice Chandrachud (in the minority) observed that Section 57 uses the
term “couple” (not ‘married couple’) and “spouse” and held that the JJ Act
does not stop unmarried couples (including queer couples) from adopting a
child (¶299 J. Chandrachud). Chief Justice Chandrachud further held that
Regulation 5(3) of the CARA Adoption Regulations, which restricts adoption
to single individuals and married couples who are in stable marital
relationship for two years, was inconsistent with the JJ Act as it restricted
adoption to married couples despite the JJ Act not doing so (¶300 J.
Chandrachud). Regulation 5(3) of the CARA Adoption Regulations is ultra
vires the JJ Act and is read down to exclude the word “marital”. Hence, the
reference to a ‘couple’ in Regulation 5 includes both married and unmarried
couples as well as queer couples (¶340(p) J. Chandrachud).
Transgender persons in hetrosexual relations can marry
The Supreme Court held that a transgender person in a heterosexual
relationship is entitled to marry (¶277 J. Chandrachud, ¶119 J. Bhat). The
Court reasoned that marriage laws in India permit marriages arising out of
heterosexual relationships (¶276 J. Chandrachud). The existing laws such as
the SMA, 1954 or other personal laws describe a marital relationship between
a ‘man’ and a ‘woman’, ‘husband’ and a ‘wife’, ‘bride and a
bridegroom’(¶278 J. Chandrachud). If this was interpreted to exclude
transgender persons, it would violate Article 15 of the Constitution and the
Transgender Persons Act, 2019 which prohibits discrimination against
transgender persons (¶277 J. Chandrachud). Further, the Court stated that a
person is a transgender person by virtue of their gender identity and not their
sexual orientation (¶277 J. Chandrachud).
7. PANKAJ BANSAL V. UNION OF INDIA
2023 INSC 866 (3 October 2023)
Justices:
Justice Ajjikuttira S. Bopanna, Justice Sanjay Kumar
Question(s):
Whether the arrest of the Appellants was valid and in conformity with the
requirements of Section 19 of the Prevention of Money Laundering Act, 2002
(“PMLA”).

Factual Background:
On 12 May 2023, the Directorate of Enforcement (“ED”) issued summons to
the Appellant’s company, the M3M Group, calling on them to provide
information and documents pertaining to certain transactions. On 1 June
2023, the ED raided the property of M3M Group and seized their assets and
bank accounts and arrested a Mr. Roop Bansal, who was a promoter in the
M3M.
The Appellants (Pankaj Bansal and his father Mr. Basant Bansal),
apprehending arrest by the ED, approached the Delhi High Court for
anticipatory bail. On 9 June 2023, the Delhi High Court granted them
anticipatory bail till the next hearing on 5 July 2023 since the ED had not
implicated them in its investigation. The High Court also found that the
Appellants had not even been summoned by the ED in the case.
The ED then filed another Information Report on 13 June 2023 against Mr.
Sudhir Parmar and Mr. Roop Bansal. Summons were also issued to the
Appellants on the same day. Both Mr. Pankaj Bansal and Mr. Basant Bansal
were present at the ED’s office in New Delhi on 14 June 2023. However, the
ED claimed that they had evaded a summons in connection with a second
Information Report and so, both of them were arrested under Section 19(1) of
the PMLA. The Additional Sessions Judge, Panchkula, remanded the
Appellants to the ED’s custody for five days of interrogation.
The arrest and remand were challenged by the Appellants before the High
Court of Punjab and Haryana. The High Court dismissed the writ petitions
and the Appellants appealed to the Supreme Court of India.
Decision of the Supreme Court:
The Division Bench (Two Judges) of the Supreme Court only considered
whether the arrest of the Appellants under Section 19 of the PMLA was
lawful. The Court examined the manner in which the Appellants were
arrested by the ED and held that the safeguards under Section 19 of the
PMLA were violated. The Additional Session Judge’s order remanding the
Appellants into ED custody did not record a finding that the Sessions Judge
had examined the grounds of arrest or that they were satisfied that the
requirements of Section 19 of the PMLA had been satisfied. The Supreme
Court ruled under Section 19(1) of the PMLA, the arrested person must
be provided with a written copy of the grounds of their arrest.
The Supreme Court allowed the appeal and ordered that the Appellants be
released from custody immediately and their arrest be set aside. The
judgement of the Court was authored by Justice Sanjay Kumar.
Reasons for the Decision:
1. Safeguards under Section 19 of PMLA
Section 19 of the PMLA prescribes how the arrest of a person allegedly
involved in money laundering can be effected (¶14). Relying on Vijay
Madanlal Choudhary v. Union of India (2022 INSC 757), the Supreme Court
observed that Section 19 had certain inbuilt safeguards that had to be adhered
to by the high-ranking officials authorising arrest. These included recording
reasons for the official’s belief that the person was involved in the offence of
money laundering and informing the accused of the grounds for their arrest
(¶14). This requirement flows from Article 22(1) of the Constitution of India
(¶14).
The Supreme Court also noted that Section 19 of the PMLA required the
authorised officer to forward the copy of the arrest order along with all the
material in his possession concerning the necessity to arrest the person to the
Adjudicating Authority (¶14).
The authorised officer is also required to produce the arrested person before
the Special Court or Judicial Magistrate within 24 hours in compliance with
Section 167 of the Criminal Procedure Code, 1973 (¶14). Finally, following
the case of V. Senthil Balaji v. State (2023 INSC 677), the Adjudicating
Authority under the PMLA must satisfy themselves that there has been due
compliance with the safeguards under Section 19 of the PMLA (¶15).
Otherwise, the arrest and any remand for interrogation will be unlawful and
violative of Article 22(1) of the Constitution (¶15-16).
In the present case, the Supreme Court found that the Additional Sessions
Judge had failed to ascertain whether the ED had recorded the reasons to
believe that the Appellants were guilty of an offence under the PMLA (¶18).
Moreover, the Sessions Judge had failed to record his own satisfaction
regarding whether the requirements under Section 19 of the PMLA had been
complied with by the ED (¶18).
Informing arrested person about grounds of arrest
Given that Section 19 of the PMLA did not specify exactly how the ED was
to ‘inform’ the arrested person of the grounds of their arrest, the Supreme
Court examined how individuals should be ‘informed’ (¶26). The Court held
that the statutory language used in Section 19(1) of the PMLA and the
constitutional mandate under Article 22(1) of the Constitution of India (which
requires that an arrested person be informed of the ground of their arrest as
soon as possible) require that the arrested person to be provided with a
written copy of the grounds of their arrest (¶35). The Court observed that
conveying this information to an arrested person is necessary to enable them
to seek legal counsel and present their case for bail before a court (¶33).
However, the Court also held that sensitive information which may
compromise the investigation could be redacted when providing the arrested
person with the grounds for their arrest (¶34).
In the present case, the Supreme Court found that the grounds of arrest was
not communicated in the proper manner to the Appellants and thus, their
arrest was violative of Section 19(1) of the PMLA (¶35).
Analysis by Supreme Court on the conduct of investigation by the ED

The Supreme Court found that the manner in which the ED conducted the
investigation of the case was not transparent or fair and lacked good faith
(¶20). The Court noted that the ED had filed a second Information Report on
13-14 June 2023, declined to disclose the pending Information Report to the
Delhi High Court, and summoned and arrested the Appellants as soon as they
received anticipatory bail from the Delhi High Court (¶19-22).
The ED had argued that the arrest of the Appellants was because they had
failed to cooperate with the ED in their investigation and had failed to
respond to the summons (¶25). The Supreme Court held that mere non-
cooperation of a witness cannot render him liable to be arrested under Section
19 of PMLA (¶25).
Noting that the clandestine and bad faith conduct of the ED during the
investigation demonstrated an arbitrary exercise of power, the Court ordered
that the judicial custody of the Appellants was not warranted and that their
arrest be set aside and they be released (¶35-36).

8. C.B.I. V. DR. R.R. KISHORE

2023 INSC 817 (11 September 2023)
Justices:
Justice Sanjay K. Kaul, Justice Sanjiv Khanna, Justice Abhay S. Oka,
Justice Vikram Nath, Justice Jitendra K. Maheshwari
Question(s):
Whether the Supreme Court’s 2014 invalidation of Section 6-A of the Delhi
Special Police Establishment Act, 1946 (“DSPE Act”), which stated that
corruption investigations into senior government officials can only begin with
the Union Government’s approval, would have a retrospective effect, or
would apply from the date the Supreme Court struck down the provision.
Factual Background:
Dr. R.R. Kishore was the Chief District Medical Officer in the Government
of Delhi. In 2004, he was arrested by the Central Bureau of Investigation
(“CBI”) while allegedly accepting a bribe for “setting things right” for a
radiologist conducting an illegal sex-determination test.

Dr. Kishore challenged the arrest before the Delhi High Court claiming that
the CBI did not obtain the mandatory approval under Section 6A(1) of the
Delhi Special Police Establishment Act, 1946 (“DSPE Act”) to arrest him.
Section 6A of the DSPE Act requires that the Union Government grant prior
approval before an investigation under the Prevention of Corruption Act,
1988 (“PC Act”) against a State official at a Joint Secretary level designation
or higher. A Chief District Medical Officer is a Joint Secretary level rank
officer.

In October, 2006, the Delhi High Court held that Dr. Kishore’s arrest was
illegal as approval under S. 6A(1) of DSPE Act was not taken before arrest.
In January, 2007, the CBI filed an appeal against the High Court’s decision at
the Supreme Court.
On 6 May 2014, a Constitution Bench of the Supreme Court in Dr.
Subramanian Swamy v Director, Central Bureau of Investigation (2014
INSC 358) (“Subramanian Swamy”) declared Section 6A(1) of the DSPE
Act unconstitutional because it violated the Right to Equality under
Article 14. The Court held that immunity cannot be restricted to a
certain rank of officers only above the Joint Secretary level.
After the Subramanian Swamy judgment, the CBI contended that since the
provision has been declared unconstitutional, it never had any legal effect and
Dr. R.R. Kishore cannot claim that the CBI breached the provision during its
investigation. Dr. R.R. Kishore contended that even though the Supreme
Court declared the law to be invalid, the Court did not say that the law never
had any effect (i.e., the Court’s invalidation was not retrospective). Because
Dr. R.R. Kishore’s investigation took place prior to the Court’s invalidation
of Section 6A, Dr. R.R. Kishore argued when his investigation took place,
Section 6A had legal effect and the CBI’s investigation violated Section 6A.
According to Dr. R.R. Kishore, giving retrospective effect to the judgment
would violate the constitutional protection in Article 20(1) that no person
shall be punished under a law that was not in force at the time the offence
was committed.
Decision of the Supreme Court:
The Supreme Court held that the declaration in Subramanian Swamy will
have retrospective effect, and Section 6A of DSPE Act will not have legal
effect from its date of insertion, i.e. 11 September 2003. The Court ruled
that once a law is declared unconstitutional then it would be void ab initio
(i.e., treated as not having any legal effect from the day it was enacted). As a
result, Section 6A will offer no protection to senior civil servants even if their
investigation began prior to the Supreme Court’s judgment in 2014. The
judgment of the Court was authored by Justice Vikram Nath.
Reasons for the Decision:
Applicability of Article 20 of the Constitution
The Supreme Court referred to Article 20(1) of the Constitution which states
that no person shall be convicted of any offence except for violating a law
that is in force at the time of the commission of the offence. The Article also
provides that a person cannot be subjected to a punishment greater than that
which is given under the law in force at the time of the commission of the
offence (¶25). The Court held that what is prohibited under Article 20 is
conviction of a new offence or imposing an enhanced sentence under a law
which was not in force when the act was committed (¶27). However, the
changes to investigation and trial procedure itself after the commission of the
offence are not prohibited (¶27). An investigation or trial under a procedure
different from the one at the time of commission of the offence does not
violate Article 20(1) of the Constitution (¶27).
The Supreme Court noted that the invalidation of Section 6A of the DSPE
Act does not introduce any new offence or conviction. It is a procedural
provision regarding investigations under the PC Act (¶23). The Court noted
that modifications to procedural provisions cannot be considered to create a
new offence (¶33(xi)). The Court noted that the issue involved in the present
reference relates to a matter of procedure, and not the two aspects of
conviction or enhanced sentence that are covered by sub-article (1) of Article
20 of the Constitution (¶31).
Retrospective application of judgment in the case of Subramanian
Swamy
The Supreme Court stated that according to Article 13(2) of the Constitution,
a law which violates the fundamental rights set out in the Constitution is
invalid (¶41). The Court then observed that in Subramanian Swamy, the
Constitution Bench had found that Section 6A of the DSPE Act violates
Article 14 which guarantees the right to equality. Hence, Section 6A would
be invalid according to Article 13(2) of the Constitution (¶41).
The Supreme Court found that any law held to be unconstitutional for
whatever reason, whether due to lack of legislative competence or in
violation of fundamental rights, would be void ab initio (i.e., treated as not
having any legal effect from the day it was enacted) (¶42(vii)). The Court
also noted that an unconstitutional law is not a valid law and cannot confer
any rights or offer any protections, it is inoperative as though it had never
been passed (¶42(vii)). Thus, the declaration made by the Constitution Bench
in the case of Subramanian Swamy will have retrospective operation (¶43).

9. AMEENA BEGUM V. THE STATE OF TELANGANA

2023 INSC 788 (4 September 2023)
Justices:
Justice Surya Kant, Justice Dipankar Datta
Question(s):
Whether the preventive detention order passed against the Appellant’s
husband is valid.
Factual Background:
The Commissioner of Police in Hyderabad issued a detention order against
the Appellant's husband (“detenu”) under the provisions of Section 3(2) of the
Telangana Prevention of Dangerous Activities Act, 1986 (“the Telangana
Act”). The detenu was alleged to have habitually committed serious offences
including outraging the modesty of women, cheating, extortion, obstructing
the public servants from discharging their legitimate duties, robbery and
criminal intimidation along with his associates in an organised manner.
The Appellant’s wife challenged the detention order. However, after review,
the Advisory Board under the Telangana Act deemed the detention justified.
Consequently, the State Government confirmed the detention order, directing
its continuation for a year from the date of detention (27 January 2023).
Subsequently, the Appellant’s wife filed a petition in the Telangana High
Court, which was rejected. Thereafter, an appeal was filed in the Supreme
Court.
Decision of the Supreme Court:
The Supreme Court quashed the detention order and directed for the release
of the detenu. The judgment of the Court was authored by Justice Datta.
The Supreme Court also laid down the following guidelines for courts to
follow when reviewing preventive detention orders:
a. The authority must consider all relevant circumstances and not rely on
extraneous material.
b. The power of preventive detention must be exercised for the intended
purpose and not for unauthorised reasons.
c. The detaining authority must act independently and not under external
influence.
d. The authority should not disable itself from considering individual
cases.
e. The satisfaction must be based on material that demonstrably satisfies
statutory mandates.
f. There should be a clear link between past conduct and the need for
detention, without relying on stale material.
g. The grounds for detention must be relevant and be shared with the
detenu, allowing for representation.
h. The detention process must adhere strictly to the timelines provided by
the relevant law.
Reasons for the Decision:
Detention order is unsustainable and indefensible
The Supreme Court observed that the detention order was based on five
distinct offences, including outraging modesty of women, cheating,
obstructing public officials, and dacoity (¶3, ¶28). The Court found that the
offences in the detention order were isolated acts affecting private individuals
and did not disrupt public life (¶39). Additionally, it noted that past criminal
history alone cannot justify detention and cautioned against the inclusion of
extraneous factors in detention orders (¶46). The Court also highlighted the
importance of clear and comprehensible language in detention orders (¶49).
The Court held that preventive detention laws, reserved for emergency or
fast-moving situations, should not have been invoked in this case for the
enforcement of ordinary 'law and order' issues (¶40).
Distinction between ‘law and order’ and ‘public order’
The Supreme Court noted that Section 3 of the Telangana Act required the
subjective satisfaction of the detaining authority before a detention order can
be issued (¶26). The Court focused on two main issues: whether the alleged
acts prejudiced 'public order' and whether all relevant circumstances were
considered (¶29). Referring to Section 2(a) of the Act, the Court explained
‘public order’ as situations causing harm, danger, alarm, or insecurity among
the public or posing a grave danger to life or public health (¶35). Incidents
categorised under ‘law and order’ pertain to breaches of specific laws
affecting individual rights or small groups without causing widespread
societal disruption (¶38). It distinguished between 'law and order' and 'public
order', and held that not every breach of law leads to public disorder (¶¶30-
31).
Purpose of preventive detention and limited judicial review
The Supreme Court observed that preventive detention involves loss of
liberty without trial and is aimed at safeguarding the security and welfare of
the state (¶9, ¶24). It is a precautionary measure to prevent potential harm to
society, based on suspicion or anticipation rather than proof (¶10). Limited
judicial review is available for aggrieved detainees (¶10).
10. EVANASIDDAPPA V. MALLIKARJUN
2023 INSC 783 (1 September 2023)
Justices:
Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Jamshed B.
Pardiwala, Justice Manoj Misra
Question(s):
Whether a child born out of a void marriage or a voidable marriage is entitled
to coparcenary property (i.e., ancestral or joint-family property) of the parents
or only the self-acquired property of the parents.
Factual Background:
In 2003, a Division Bench (two judges) of the Supreme Court in Jinia
Keotin v. Kumar Sitaram Manjhi (2002 INSC 576) (“Jinia Keotin”) held
that a child born from a void marriage (a marriage that does not have any
legal effect) or a voidable marriage (a marriage that may be annulled by one
spouse) would have no right to claim inheritance in ancestral or coparcenary
property (joint-family property). This judgment was later followed in
Neelamma v. Sarojamma [(2006) 9 SCC 612] (“Neelamma”) and
Bharatha Matha v. R Vijaya Renganathan (2010 INSC 328) (“Bharatha
Matha”).
The present appeal at the Supreme Court (Revanasiddappa v. Mallikarjun)
was filed against the judgment of the Karnataka High Court by illegitimate
sons of one Shri Shivasharanappa. The sons claimed a share in ancestral
properties. The wife of Shivasharanappa, along with her two sons, stated that
Shivasharanappa had married a second woman while still married to her and
therefore, the children born out of this second marriage are not entitled to any
share in Shivasharanappa’s ancestral property.
At the Supreme Court, a Division Bench (two judges) in Revanasiddappa v.
Mallikarjun (2011 INSC 251) doubted the correctness of the decisions in
Jinia Keotin, Neelamma, and Bharatha Matha and referred the case to a larger
bench of three-judges.
Decision of the Supreme Court:
The Supreme Court held that children born out of void or voidable marriages
are entitled to a share in their parents' ancestral properties. The Court clarified
that such children are not coparceners in the ancestral property (a person who
shares equally with others in the inheritance of an undivided property) and
cannot claim an equal share in the ancestral property in their own right.
However, children from void and voidable marriages are entitled to a
right in their parents’ share of the ancestral property. The judgment of the
Court was authored by Chief Justice Chandrachud.
Reasons for the Decision:
Legitimacy of children born out of void or voidable marriages
The Supreme Court found that Section 16 of the Hindu Marriage Act, 1955
(“HMA”) provides that children born out of void and voidable marriages
though “illegitimate”, shall be treated as legitimate (¶12). The Court noted
that the law has a socially beneficial purpose of removing the stigma of
illegitimacy faced by children of such marriages, since the children
themselves are innocent (¶3).
Right in Property of Parents
The Supreme Court noted that an illegitimate who is deemed to be legitimate
under Section 16(3) of the HMA will only have inheritance rights in the
property of their parents and not have any rights in the property of a person
other than their parents (¶42).
The Court noted children born out of valid marriage are coparceners in the
Hindu joint-family property and they have a share in the ancestral property
apart from and equal to their parents. On the death of their parents, they are
then equally entitled to a share of their parents property. On the other hand,
children born out of void and voidable marriage are not coparceners in
the Hindu-Joint family property, they are only entitled to a share in their
parents’ property (¶43).
The Court noted that to ascertain the property of parents, Section 6(3) of the
Hindu Succession Act, 1956 provides that for a Hindu Mitakshara
coparcener, their share in the property would be the part that would have been
allotted to him if a partition had taken place immediately before his death
(¶40).
Thus, the Court concluded that the children born out of void and voidable
marriage are entitled to: (i) a share in the ancestral property that would be
allotted to their parents on partition, and (ii) a share in the self-acquired
property of the parents (¶50).

11. V. SENTHIL BALAJI V. THE STATE REPRESENTED BY DEPUTY

DIRECTOR
2023 INSC 677 (7 August 2023)
Justices: Justice Ajjikuttira S. Bopanna, Justice M. M. Sundresh
Question(s):
 (i) Is the habeas corpus petition filed for the release of the Appellant
from arrest under Section 19 of the Prevention of Money
Laundering Act, 2002 (“PMLA”) maintainable?
(ii) (ii) Can the time spent by the Appellant in hospital be excluded
from the custody period?
Factual Background:
On 14 June 2023, the Appellant, a Cabinet Minister of the State of Tamil
Nadu, was arrested by the Enforcement Directorate (“ED”) under Section 19
of the PMLA. Section 19 empowers authorised officers of the ED to arrest
persons believed to have committed an offence of money laundering. On the
same day, the Appellant was taken to hospital when he complained of chest
pain. His wife filed a habeas corpus petition before the Madras High Court to
secure his release. Meanwhile, the State filed an application seeking judicial
custody of the Appellant for fifteen days before the Trial Court.
On 14 June 2023, the Trial Court found that there existed a prima facie case
against the Appellant. It sent the Appellant to judicial custody for fifteen
days, until 28 June 2023. On 15 June 2023, the High Court directed that the
Appellant be moved to a private hospital of his choice to undergo a bypass
surgery. After the surgery, on 16 June 2023, the Trial Court granted custody
of the Appellant to the State for eight days, permitting interrogation on the
condition that he be allowed to remain in the hospital where he was receiving
treatment.
The State filed an application before the High Court seeking to exclude the
period of hospitalisation while calculating the period of custody since no
physical custody of the Appellant had been taken
A split verdict by a Division Bench (two judges) of the High Court led the
matter to be referred to a third Judge of the High Court. While dismissing the
Appellant’s habeas corpus petition, the third Judge asked the Division Bench
to decide the date from which the period of custody was to be calculated.
Both the Appellant and the State petitioned the Supreme Court. The State
sought to exclude the time spent by the Appellant in hospital from the total
custody period. The Appellant argued that under Section 167(2) of the Code
of Criminal Procedure, 1973 (“CrPC”) a Magistrate can authorize the
detention of the accused for a maximum period of fifteen days for
investigation, and such detention can only be by police officers and not
members of other investigative agencies such as the ED. Since fifteen days
had passed, the Appellant was entitled to be released.
Decision of the Supreme Court:
The Supreme Court dismissed the Appellant’s habeas corpus petition. It
interpreted custody to mean actual physical custody and excluded the time
spent by the Appellant in hospital from the custody period. It granted the
State custody of the Appellant until 12 August 2023. The Court observed that
the larger issue of whether the fifteen day period of custody in favour of the
police referred to in Section 167(2) CrPC can only be within the first fifteen
days of remand or span the entire period of investigation as a whole, should
be placed before a larger Bench for its consideration. The decision of the
Court was authored by Justice Sundresh.
Reasons for the Decision:
Habeas corpus is a remedy for illegal detention
The Supreme Court observed that a writ of habeas corpus could only be
issued when detention was illegal (¶29). Thus, the writ would only lie in
connection to a Section 19 PMLA arrest, if a person was not produced before
a court within twenty-four hours of arrest as mandated in Section 19(3). The
Court found that the arrest of the Appellant was procedurally compliant, and
the Trial Court had passed a reasoned order of remand under Section 167(2)
of the CrPC on the day of arrest itself, 14 June 2023 (¶¶30, 81). In this
context, the only remedy available to the Appellant was to challenge the
order of remand before a higher forum, rather than invoking the
constitutional writ jurisdiction of the High Court by filing a habeas
corpus petition (¶30).
PMLA is a special code
The Appellant argued that the State had violated its duty under Section 41A
of the CrPC. Section 41A provides for the issue of a notice to a person prior
to arrest (¶21). The Supreme Court found that the PMLA was a one of a kind
code, with its own mechanisms concerning searches, seizures and arrests, and
its own safeguards (¶32). In light of Section 65 of the PMLA, which
provides that its provisions will override those of the CrPC, officers of
the ED were not required to follow Section 41A of the CrPC (¶¶32, 35,
45).
Custody means actual custody
The Supreme Court found that custody did not mean legal custody but actual
or physical custody (¶¶57, 60). It observed that once an order was passed
granting custody, any external interference in the securing of this custody
including a court order, would not start the period of custody (¶60). As a
result, the fifteen days of custody could not be reduced by the hospitalisation
of the Appellant, which was effected through a court order (¶60). To reach
this conclusion, the Court relied on the doctrine of actus curiae neminem
gravabit, which states that no person (the ED in this case) can be
prejudiced by an act of court (¶60).
Custody not limited to police custody
The Supreme Court found that the expression “such custody” in Section
167(2) of the CrPC included not only police custody but also the custody of
other investigating agencies such as the ED (¶¶54, 88). It noted that Section
167(2) consciously omits the expression “police custody” and gives the
Magistrate the discretion to determine the kind of custody whether judicial,
police or that of an investigating agency or other entity to be granted (¶54).
Fifteen day custody period not restricted to fifteen days within order of
remand
The Appellant had cited CBI v. Anupam J. Kulkarni (1992 INSC 154)
(“Anupam J. Kulkarni”) to argue that the maximum period of fifteen days
of custody referred to in Section 167(2) of the CrPC meant the first fifteen
days from the order of remand (¶22). The Supreme Court found that the
maximum period of fifteen days applied across the entire period of
investigation since nothing in Section 167(2) suggested it had to be the first
fifteen days (¶¶63, 73). But in its concluding paragraph, the Court directed
that the issue considered in Anupam J. Kulkarni, of whether the maximum
period should be only the first fifteen days, be decided by a larger Bench of
the Supreme Court (¶91).

12. DR. JAYA THAKUR V. UNION OF INDIA

2023 INSC 616 (11 July 2023)
Justices:
Justice Bhushan R. Gavai, Justice Vikram Nath, and Justice Sanjay Karol
Question(s):
(i) Do the amendments to the Delhi Special Police Establishment Act,
1946 and the Central Vigilance Commission Act, 2003 allowing
three one-year extensions to the Directors of the Central Bureau of
Investigation and the Enforcement Directorate threaten the
independence of these investigative agencies, and could they allow
for extension of Mr. Sanjay Kumar Mishra’s tenure in violation of a
specific Supreme Court order?
(ii) (ii) Are the Amendments contrary to the Supreme Court’s decision
in Common Cause v. Union of India (2021 INSC 459) (“Common
Cause”)?
Factual Background:
On 13 November 2020, the tenure of Mr. Sanjay Kumar Mishra, the Director
of the ED was extended beyond two years. However, in September 2021, the
Supreme Court, in the Common Cause decision, held that such extensions
should only be granted in rare and exceptional cases and for a brief period.
The Court specifically ruled against any further extension of Mr. Mishra’s
tenure beyond the first extension.
On 14 December 2021, Parliament enacted the Delhi Special Police
Establishment (Amendment) Act, 2021, and the Central Vigilance
Commission (Amendment) Act, 2021, amending the Delhi Special Police
Establishment Act, 1946 (“DSPE Act”) and the Central Vigilance
Commission Act, 2003 (“Vigilance Act”), respectively. These Amendments
allowed the Union Government to extend the tenure of Central Bureau of
Investigation (“CBI”) and the Enforcement Directorate (“ED”) directors with
up to three one-year extensions. Prior to the amendment, the tenure of the
directors could be up to two years.
These provisions allowing for the extension of tenure were initially
introduced through Ordinances on 15 November 2021. Despite the Supreme
Court's directive, Mr. Sanjay Kumar Mishra’s tenure saw a second extension
for a year on 17 November 2021, followed by a third extension on 17
November 2022.
These Amendments and tenure extension orders were challenged on the
grounds that they violated principles of fair investigation and fair trial, and
afforded the Union Government substantial control over the Director’s
tenure, compromising the independence of the CBI and ED and violating the
Supreme Court’s previous directions. The Union of India contended that
these agencies continue to be independent as extensions are granted on the
recommendation of a High Level Committee consisting of the Central
Vigilance Commissioner and the Vigilance Commissioners, who are totally
independent and impartial persons. The continuity of Mr. Mishra’s leadership
was argued to be crucial.

Decision of the Supreme Court:

The Supreme Court affirmed the constitutionality of the Amendments to the
DPSE and Vigilance Act. However, the Court ruled that the second and third
extensions of Mr. Mishra’s tenure on 17 November 2021 and 17 November
2022 were illegal and in violation of the Supreme Court’s Common Cause
decision. The Court directed the Union Government to appoint a new
Director for the Enforcement Directorate by 31 July 2023, while Mr. Mishra
continues in the role until then. The Three-Judge Bench judgment was
authored by Justice B.R. Gavai.

Reasons for the Decision:

The Amendments are constitutional
The Supreme Court noted that a statute enacted by Parliament or a State
Legislature could only be struck down on two grounds: f
irstly, that the Legislature does not have competence to make a law and
secondly, the law violates fundamental rights or other constitutional
provisions (¶¶70-71).
The Supreme Court examined the process of appointing the directors. The
Director of the ED is recommended by a Committee led by the Central
Vigilance Commissioner, with members including secretaries from the
Ministries of Home Affairs, Personnel, and Revenue (¶78). The Central
Vigilance Commissioner, who leads this Committee, is appointed by a three-
member body comprising the Prime Minister, the Minister of Home Affairs
and the Leader of the Opposition in Parliament (¶80). Similarly, the Director
of the CBI is recommended by a Committee consisting of the Prime Minister,
the Leader of the Opposition in Parliament, and the Chief Justice of India (or
a Judge of the Supreme Court nominated by the CJI) (¶86).
The Supreme Court held that in both instances, the safeguards in the statute
insulated these officers from external pressures, allowing them to act
independently (¶85). Under the new amendment, the Committees are
empowered to recommend extensions for incumbent directors in the public
interest, provided they give written reasons for the extension (¶90). The Court
asserted that if the Committee can be trusted with the initial appointment,
there is no reason why the same Committee cannot be trusted with extensions
(¶93). These extensions are not being granted arbitrarily at the ‘sweet-will’ of
the Government (¶91).
Second and Third extension of Mr. Mishra’s tenure is invalid
The Supreme Court held that a direction issued by the Court cannot be
subsequently nullified by an enactment, as doing so amounts to intrusion into
judicial power and violates rule of law (¶114). In the decision of Common
Cause, after upholding the first tenure extension granted to Mr. Mishra, the
Court specifically issued a direction that no further extension shall be granted
to Mr. Mishra (¶111). Both the Union of India and Mr. Mishra were parties to
the proceedings and were bound by Court’s direction (¶103). Hence the
subsequent extensions given to Mr. Mishra were illegal (¶121(ii)).

13. THE ANIMAL WELFARE BOARD OF INDIA V. UNION OF INDIA

2023 INSC 548 (18 May 2023)
Justices:
Justice Kurian. M. Joseph, Justice Ajay Rastogi, Justice Aniruddha
Bose, Justice Hrishikesh Roy, Justice Chudalayil T. Ravikumar,

Question(s):
(i) Whether Tamil Nadu’s amendment to the Prevention of Cruelty to
Animals Act permitting Jallikattu in the state of Tamil Nadu is
contrary to the Supreme Court’s ban on the sport.
 (ii) (ii) Whether Jallikattu is part of the cultural heritage of Tamil Nadu?
(iii) (iii) Whether the Prevention of Cruelty to Animals (Tamil Nadu
Amendment) Act, 2017 violates the right to equality and life of
animals.
Factual Background:
In May 2014, the Supreme Court in Animal Welfare Board of India v. A.
Nagaraja (2014 INSC 370) (“A. Nagaraja”) banned Jallikattu and
bullock-cart racing. It held that the practices caused unnecessary pain and
suffering to animals, as per the Prevention of Cruelty to Animals Act, 1960
(“PCA Act”).
In January 2017, the Tamil Nadu government passed the Prevention of
Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 which permitted the
sport of Jallikattu and introduced rules to govern its practice. The
Maharashtra Legislature enacted similar amendments to the PCA Act to allow
bullock-cart races and and the State of Karnataka issued rules laying down
rigid regulatory measures for conducting Kambala which is a bullock-cart
race in the state.
A group of animal rights activists and organisations challenged the
Amendments at the Supreme Court as being violative of the Supreme Court
Judgment in A. Nagaraja. The petitions also contended that only the Union
government has the power to frame rules under PCA Act and hence the
rules framed by the Tamil Nadu Legislature are invalid and therefore
inapplicable.
Decision of the Supreme Court:
The Supreme Court held that Prevention of Cruelty to Animals (Tamil Nadu
Amendment) Act, 2017 permitting Jallikattu is not contrary to the Supreme
Court’s judgment in A. Nagaraja. The Court held that the issues with
Jallikattu pointed out in A. Nagaraja has been overcome by the State
Amendment Acts by minimising the pain and suffering to the animals during
the conduct of the sport. The Court further held that Jallikattu is part of the
cultural heritage of Tamil Nadu and that the fundamental rights to
equality and life cannot be extended to animals. The judgment of the Court
was authored by Justice Aniruddha Bose.
Reasons for the Decision:
a. The Amendments minimised cruelty
The Supreme Court found that the sport of Jallikattu, Kambala and Bullock
Cart Racing permitted by the Amendment Acts of the three States minimised
the pain and suffering that would be caused to the bulls (¶30). The Court
noted that the Rules enacted by the States specify isolated arenas for the
sports to be conducted including the setting up of both bull run and bull
collection areas, and galleries separating spectators from directly coming into
contact with bulls (¶28). The Court noted that A. Nagaraja banned Jallikattu
because of the cruel manner in which the animals were treated during the
sport but after the amendments by the State most of the harmful practices
have been substantially minimised. Thus, the Amendments are not contrary to
the A. Nagaraja judgment (¶30).
b. Jallikattu is a cultural practice
The Supreme Court noted that Jallikattu has been going on in the State of
Tamil Nadu for at least the last few centuries but whether this has become an
integral part of Tamil culture or not requires religious, cultural and social
analysis, which is an exercise that cannot be undertaken by the judiciary
(¶40(ii)). The Court also noted that the State has determined Jallikattu to be a
part of cultural heritage of Tamil Nadu and the Court decided not to interfere
with this view of the legislature (¶40(ii)). The Court clarified that the view
reflected in A. Nagaraja that the performance of Jallikattu is not a part of the
cultural heritage of Tamil Nadu does not hold good (¶40(ii)).
c. Fundamental Rights not to be extended to animals
The Supreme Court stated that there is no precedent which states that animals
have fundamental rights (¶24). The Court recalled that the A. Nagaraja
judgment also does not lay down that animals have Fundamental Rights.
According to the Court, a legislation can be challenged on the basis of
reasonableness as per Article 14 of the Constitution of India. However,
Article 14 and Article 21 cannot be invoked by an animal (¶24).

d. State government had the authority to pass the amendments

The Supreme Court held that the primary focus of the Prevention of Cruelty
to Animals (Tamil Nadu Amendment) Act, 2017 relates to Entry 17 of List
III (Prevention of cruelty to animals) of Seventh Schedule to the
Constitution of India. Under the Constitutional scheme of the Seventh
Schedule, both the Union and the States have a right to make laws
concerning issues under List III (¶40(iii)). Before passing the amendment
to the PCA Act, Tamil Nadu obtained Presidential assent under Article 254(2)
of the Constitution of India which provides that if a State Government makes
a law on a topic that both the States and the Union Government can make
laws about (List III), and the state law clashes with a previous law made by
the Union Government, the state law can still be enforced if he President
approves it (¶9).

13. GOVT. OF NCT OF DELHI V. UNION OF INDIA

2023 INSC 517 (11 May 2023)
Justices:
Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Mukeshkumar
R. Shah, Justice Krishna Murari, Justice Hima Kohli, Justice
Pamidighantam S. Narasimha
Question(s):
Whether the Government of the National Capital Territory of Delhi
(“GNCTD”) or the Union Government (acting through the Lt. Governor of
Delhi) has control over civil “services” in Delhi according to Entry 41 of the
State List of Schedule VII of the Constitution.
Factual Background:
On 21 May 2015, the Union Government issued a Presidential notification
(“2015 Notification”) which said that the Lt. Governor of Delhi shall exercise
control over the “services” (i.e., civil services) in Delhi. Schedule VII of the
Constitution lists “services” under Entry 41 of the State List and thus,
State Governments typically control the civil services in the State.
However, the 2015 notification removed “services” from the control of the
GNCTD and placed the civil services under the control of the Lt. Governor of
Delhi. The GNCTD challenged the 2015 Notification before the Supreme
Court.

Decision of the Supreme Court:

The Supreme Court held that the GNCTD had legislative and executive
power over the “services” under Entry 41 of List II of the Schedule VII of the
Constitution. Thus, in cases regarding civil services and the power to
supervise or exercise control over the transfer or suspension of civil servants,
the Lt. Governor of NCT of Delhi would be bound by the aid and advice of
the Council of Ministers of the GNCTD. However, because Article 239AA
confers the Union Government with exclusive legislative power over public
order, police, and land in Delhi, the Court held that the Union Government
shall exercise power over civil services relating to these specific areas of
governance. The decision of the Court was authored by Chief Justice
Chandrachud.
Reasons for the Decision:
Legislative and executive powers of Delhi Government under the
Constitution
The Supreme Court referred to its 2018 Constitution Bench (five judges)
decision in Government of NCT of Delhi v. Union of India to hold that the
NCT of Delhi had a unique nature by virtue of Article 239AA of the
Constitution, and this set it apart from other Union Territories (¶12). As
executive power is co-extensive with legislative power, the executive power
of the NCTD extended to all matters with respect to which the GNCTD had
the power to legislate (¶19). Article 239AA states that the Legislative
Assembly of Delhi shall have power to make laws for Delhi with respect to
any of the matters enumerated in the State List or the Concurrent List “in so
far as any such matter is applicable to Union territories” except matters with
respect to certain excluded entries of public order, police and land in the State
List.
The Union of India had contended that the phrase “in so far as any such
matter is applicable to Union Territories” in Article 239AA(3)(a) meant that
the GNCTD had power to legislate on any entry only if such an entry was
clearly applicable to all Union Territories as a class (¶10). However, the
Supreme Court dismissed this contention and held that the phrase in Article
239AA was an inclusive term and interpreted it to mean that the Legislative
Assembly of Delhi has the power to legislate on any subject in the State or
Concurrent Lists, except the expressly excluded subjects of public order,
police and land under Article 239AA(3)(a) (¶¶23-25).
Delhi’s special status
The Supreme Court reasoned that if the phrase “in so far as any such matter is
applicable to Union Territories” was interpreted to exclude many more entries
than what was expressly excluded by Article 239AA(3), then it would defeat
the very purpose of granting a “special status” to Delhi over other Union
Territories (¶46). This “special status” for Delhi (granted by the Sixty-Ninth
Constitutional Amendment) introduced a legislative assembly in Delhi to
provide for local governance and democratic popular representation (¶36).
Reducing the legislative powers of the Delhi legislature would distort the
balance between local interests of the people of Delhi and national interests
of the Union for good governance of the national capital (¶46).
Role of civil servants
The Supreme Court also discussed the principles underlying the role of civil
servants in a modern parliamentary democracy like India (¶97). It referred to
the triple chain of accountability which led to a responsible democratic
government wherein civil servants were responsible to the elected ministers;
ministers were accountable to the legislature; and the legislature was finally
accountable to the electorate (¶106). Civil servants formed the foundation of
a responsible government since they implemented and administered the
government decisions and policy which, by extension, was the will of the
electorate. So, in case civil servants and “civil services” were not under the
control of elected representatives, it could lead to unaccountable and non-
responsive civil servants that would disregard the will of the elected minister
and indirectly the electorate (¶107).
Additional observations
The Union of India had submitted that the GNCTD does not have legislative
competence over Entry 41 of List II because Part XIV of the Constitution
(which covers Services under the Union and the States) does not contemplate
any services for Union Territories (¶122). However, the Supreme Court
referred to the inclusive definition of “State” in Section 3(58) of the General
Clauses Act, 1897, where the term “State” included even Union Territories.
Thus, Part XIV was applicable to Union Territories like Delhi (¶132).
The Supreme Court also held that the exercise of rule-making power by the
Union Government (through the President of India) under Article 309 of the
Constitution (regarding recruitment and conditions of service of persons
serving in the civil services of the Union or a State) would not oust the
legislative power of the Government of NCTD to make laws over Entry 41 of
the State List in Schedule VII (¶144).

14. ADIVASIS FOR SOCIAL AND HUMAN RIGHTS ACTION V.

UNION OF INDIA
2023 INSC 512 (10 May 2023)
Justices:
Justice Abhay S. Oka and Justice Rajesh Bindal
Question(s):
(i) Whether Union and State laws can apply to a Scheduled Area unless
a specific notification making the said laws applicable to the
Scheduled Area is issued by the Governor of that State.
(ii) (ii) Whether persons who are not members of a Scheduled Tribe
have the right to settle down in Scheduled Areas.
(iii) (iii) Should non-Scheduled Tribe candidates have the right to vote
in or to contest the elections of the Legislative Assembly or the Lok
Sabha from the Scheduled Area?
Factual Background:
On 31 December 1977, the President of India declared the entire district of
Sundargarh in the State of Orissa as a Scheduled Area under Clause 6(2) of
the Fifth Schedule to the Constitution of India. A Scheduled Area is an area
consisting of a significant population of tribal communities. The Fifth
Schedule of the Constitution empowers the President to declare certain areas
within States as Scheduled Areas to safeguard the interest and welfare of the
tribal communities in that area. The Governor has the power to alter the
applicability of Central and State laws to Scheduled Areas by issuing a
notification under Clause 5(1) of the Fifth Schedule.
The Petitioner was a society representing the interests and fundamental rights
of Scheduled Tribes. They approached the High Court of Orissa by way of a
writ petition contending that only members of Scheduled Tribes had the right
to reside and vote in Scheduled Areas. The Petitioner also submitted that no
law made by Parliament or the State Legislature would apply to such
Scheduled Areas unless the Governor issued a notification under the Fifth
Schedule. The High Court dismissed the writ petition. The Petitioners
appealed to the Supreme Court.
Decision of the Supreme Court:
The Supreme Court held that the Central and the State laws which are
applicable to the State of Orissa will continue to apply to Scheduled Areas in
the State of Orissa unless the Governor, under Clause 5(1) of the Fifth
Schedule, declares that a particular law is not applicable to the Scheduled
Area.
The Supreme Court held that non-tribals have the right to settle down in a
Scheduled Area based on Article 19(1)(e) of the Constitution of India which
grants every citizen a right to settle in any part of the territory of India.
Further, any person including non-tribals have a right to vote even in
Scheduled Areas.
There is no provision that all the constituencies for Lok Sabha and State
Legislature elections in Scheduled Areas are reserved only for Scheduled
Tribes candidates. The judgment of the Court was authored by Justice Oka.

Reasons for the Decision:

Applicability of Union and State Laws to a Scheduled Area
The major question of law in this case was whether Union and State laws
would apply in a Scheduled Area without a specific notification issued by the
Governor (¶7). Clause 5 of the Fifth Schedule of the Constitution was held to
mean that the Governormay, by public notification, direct that any particular
law of Parliament or the State Legislature shall not apply to a Scheduled Area
or shall apply to such Scheduled Area with some modifications (¶8).
The Supreme Court referred to the Constitution Bench judgment of the
Supreme Court in Chebrolu Leela Prasad Rao v. State of Andhra Pradesh
(2020 INSC 344) and held that this judgment clearly clarified that all Central
and State laws are automatically applicable to a Scheduled Area unless the
Governor issued a notification under Clause 5 of the Fifth Schedule or
introduced some modifications to that law in its application to the Scheduled
Area (¶11). Therefore, the power of the Governor under Clause 5 of the Fifth
Schedule is restricted to directing that a particular Union or State law will not
apply in a Scheduled Area or that it shall apply with certain modifications
(¶13).
Power of Governor and Fundamental Rights
The Supreme Court held that the exercise of powerbythe
GovernorunderClause5 of the Fifth Schedule cannot override or violate the
Fundamental Rights under Part III of the Constitution of India (¶11). This
power of the Governor is equivalent to the power of the Parliament and State
Legislatures to make laws and the power should only be exercised subject to
the Fundamental Rights and other provisions of the Constitution (¶13).
Right to Vote and Reservations in Scheduled Areas
The Supreme Court stated that the right to vote was governed by Part III of
the Representation of the People Act, 1950 (“RPA 1950”). The RPA 1950 did
not restrict voting rights in Scheduled Areas to only tribal populations.
Therefore, any Indian citizen who is eligible to vote, including a non-tribal,
can vote in a Scheduled Area (¶16).
The Supreme Court noted that reservation for constituencies was to be made
in terms of Article 330 and 332 of the Constitution of India and these
provisions did not provide that all the constituencies in Scheduled Areas
should be reserved for Scheduled Tribes (¶17). The Delimitation Act of 2002
applied to Scheduled Areas and even this did not provide for specific
reservations for Scheduled Tribes in Scheduled Areas (¶17).
15. SHILPA SAILESH V. VARUN SREENIVASAN
2023 INSC 468 (1 May 2023)
Justices:
Justice Sanjay K. Kaul, Justice Sanjiv Khanna, Justice Abhay S. Oka,
Justice Vikram Nath, Justice Jitendra K. Maheshwari

Question(s):
(i) Whether the Supreme Court can, under Article 142 of the
Constitution, grant divorce based on the mutual consent of the
parties, bypassing the waiting period under Section 13B of the
Hindu Marriage Act, 1955, (“HMA”), and also quash other
connected proceedings. If yes, what are the contours of this power?

(ii) (ii) Can the Supreme Court grant divorce under Article 142 despite
one spouse's objection, in cases of irretrievable breakdown of
marriage?
Factual Background:
A transfer petition was filed in the Supreme Court for the transfer of divorce
proceedings from one state to another. During the course of proceedings, the
parties agreed to divorce by mutual consent and arrived at a settlement. The
parties sought the Supreme Court’s intervention under Article 142 of the
Indian Constitution to dissolve their marriage. Article 142(1) of the
Constitution grants the Supreme Court the power to do ‘complete justice’ in
‘any cause or matter’ before it.
A Division Bench of the Supreme Court (two judges) found that there was an
irretrievable breakdown in the marriage. Recognizing the backlog in family
courts, the Supreme Court dissolved the marriage under Article 142,
bypassing the lengthy process in the family court under the HMA.
The Supreme Court acknowledged a surge in similar cases before the
Supreme Court seeking relief under Article 142. On 29 June 2016, the bench
referred the matter to a Constitution Bench (five judges) to clarify the scope
of the Court's power under Article 142 of the Constitution.

Decision of the Supreme Court:

The Constitution Bench held that the Supreme Court can record the
settlement between the parties and dissolve the marriage by passing a decree
of divorce by mutual consent in exercise of power under Article 142 of the
Constitution without being bound by the procedural requirement under the
HMA. The Court also held that while exercising powers under Article
142 of the Constitution, the Court can quash and set aside other
proceedings between the parties, including criminal proceedings.
Furthermore, the Supreme Court held that under Article 142(1) of the
Constitution, the Supreme Court could grant divorce if a marriage has
irretrievably broken down, even if one party opposes the prayer for divorce.
Finally, the Court clarified that parties could not approach the Supreme
Court directly to dissolve the marriage under Article 142. Rather, parties
would have to approach the Family Court as the court of first
[Link] judgment of the Court was authored by Justice Sanjiv
Khanna.
Reasons for the Decision:
The scope and ambit of power of Supreme Court under Article 142(1) of
the Constitution of India

The Supreme Court held that Article 142(1) of the Constitution gives wide
power to the Supreme Court to do ‘complete justice’ in any ‘cause or matter.’
The Court held that this power, while broad, is restrained by fundamental
considerations of general public policy (fundamental rights, secularism,
federalism, and other basic features of the Constitution of India) and specific
public policy (e.g some express prohibition in any statute) (¶13). It was held
that while the Court cannot create new laws or disregard explicit statutory
provisions, it can intervene in areas where the law is unclear. As long as the
Court's actions uphold these fundamental principles the Court may deviate
from procedural and substantive laws to do ‘complete justice’ between parties
(¶13).
Supreme Court can grant a decree of divorce under Article 142(1)
Section 13-B of the HMA provides for divorce by mutual consent, subject to
a mandatory cooling-off period of minimum six months and maximum
eighteen months. The Supreme Court clarified that the cooling off period of
six months can be waived in exceptional situations where prolonged court
proceedings have already caused significant distress to the parties (¶17). The
purpose of the cooling-off period is not to prolong suffering or salvage
irreparably broken marriages (¶17). If reconciliation efforts fail and the
marriage is totally unworkable, then the Court can grant divorce without
waiting for the cooling-off period (¶¶16-17, ¶22).

The Supreme Court finally held that while exercising powers under Article
142(1) of the Constitution, it can grant divorce based on mutual consent
without requiring parties to file joint motions before the trial court (¶18).
Even if the main case is pending elsewhere, the Supreme Court's power
extends to granting divorce by mutual consent, thereby easing the burden on
multiple courts and the parties (¶19). Based on the settlement reached
between the parties, the Court has the power to appropriately deal with other
pending proceedings between them, whether civil or criminal (¶22).

Court can grant of divorce under Article 142(1) even if one spouse opposes
such prayer

The Supreme Court held that under Article 142, it can dissolve the marriage
(on grounds of an irretrievable breakdown of marriage) even without the
consent of both the parties (¶32). However, it observed that such a remedy
could not be claimed as a right but was a discretionary power of the Court,
requiring careful consideration of several factors. Factors like duration of
marriage, long separation period, nature of allegations, attempts at
reconciliation, the orders passed in the legal proceedings from time to time,
must be assessed cumulatively (¶33). These facts have to be evaluated
keeping in view the economic and social status of the parties, including their
educational qualifications, whether the parties have any children, their age,
whether spouse and children are dependent. Custody of children, alimony,
and other pending matters are also relevant (¶33).

A party cannot directly approach the Supreme Court by filing a writ petition
to seek divorce on the ground of irretrievable breakdown of marriage

The Supreme Court held that if a party is aggrieved by the order of a court,
they cannot directly approach the Supreme Court or High Court and seek
divorce on ground of irretrievable breakdown of marriage through writ
petitions under Article 32 or Article 226 of the Constitution (¶41). Instead,
they must appeal to the appropriate superior court or tribunal (¶41). The writ
jurisdiction of the High Courts and Supreme Court is meant for enforcing
fundamental rights under Part III of the Constitution, not for challenging
judicial orders. Therefore, relief of divorce cannot be directly sought through
Article 32 of the Constitution (¶41).

16. MADHYAMAM BROADCASTING LIMITED V. UNION OF

INDIA
2023 INSC 324 (5 April 2023)
Justices:
Chief Justice (Dr.) Dhananjaya Y. Chandrachud and Justice Hima Kohli
Question(s):
Is the order issued by the Ministry of Information and Broadcasting (“MIB”)
refusing to renew the uplinking and downlinking permission granted to
Madhyamam Broadcasting Ltd. (“MBL”) to operate the television channel
Media One violative of MBL’s right to freedom of expression under the
Constitution?

Factual Background:
On 19 April 2010, MBL applied for permission to uplink and downlink its
news and current affairs television channel named ‘Media One’. On 30
September 2011, MIB gave MBL permission to uplink Media One for a
period of ten years under the ‘Policy Guidelines for Uplinking of Television
Channels from India’.

On 3 May 2021, MBL applied for a renewal of the permission granted to

Media One. MIB issued a show cause notice to MBL as to why the
permission granted to them should not be revoked since the Ministry of
Home Affairs (“MHA”) had denied security clearance to MBL.
On 31 Jan 2022, MIB revoked MBL’s permission for uplinking and
downlinking Media One. The reason given was that due to denial of security
clearance, the company ceased to fulfil the eligibility requirement for renewal
of permission for uplinking and downlinking of TV Channels.

MBL filed a writ petition under Article 226 of the Constitution in the High
Court of Kerala challenging MIB’s order revoking the uplinking and
downlinking permission for Media One. The Union of India’s submissions
were made through a ‘sealed cover’ (i.e., they were not made available to
MBL or the public). The Union told the High Court that security clearance
was denied to MBL based on inputs given by the Intelligence Bureau (“IB”),
which are sensitive and secret in nature. It was further stated that MHA
cannot disclose reasons for the denial of security clearance for national
security reasons.

On 8 February 2022, a Single Judge of the High Court of Kerala dismissed

the writ petition. The Single Judge’s decision was challenged before the
Division Bench (two judges) of the High Court. On 2 March 2022, the
Division Bench dismissed the appeal. MBL appealed against the decision of
the Division Bench of the High Court of Kerala to the Supreme Court. Before
the Supreme Court the Union Government contended that MBL had close ties
to Jamaat-e-Islami Hind (“JEI-H”) and hence was a security threat.
On 15 March 2022, the Supreme Court said that the issue as to whether the
contents of the sensitive files (which were submitted in a sealed cover before
the High Court) should be disclosed to the Petitioners will be decided by the
Supreme Court’s final judgement.
Decision of the Supreme Court:
The Supreme Court held that MIB’s order revoking MBL’s permission for
uplinking and downlinking Media One was unconstitutional. The judgement
of the Court was authored by Chief Justice Chandrachud.
The Supreme Court held that MBL’s right to a fair hearing has been infringed
because:
(i) MIB’s order revoking Media One’s license did not contain any reasons
for denial of security clearance and
(ii) (ii) the Union’s reasons were not disclosed to MBL and were only
disclosed to the Court. The Supreme Court further held that the non-
renewal of permission to operate a media channel is a restriction on the
freedom of the press which can only be reasonably restricted on the
grounds stipulated in Article 19(2) of the Constitution. The Supreme
Court held that Media One’s alleged anti-establishment stance and the
alleged link of the shareholders of the channel to JEI-H are not
legitimate reasons to restrict the right of freedom of speech. The Court
directed MIB to proceed with the issuing of renewal permissions in
accordance with the Court’s judgment within four weeks.
Reasons for the Decision:
The Supreme Court noted that Paragraph 10 of the ‘Policy Guidelines for
Uplinking of Television Channels from India’ sets out the conditions for
renewal of existing permissions. Paragraph 10.2 of the Uplinking Guidelines
states that the channel should not have violated the Programme Code on more
than five occasions. The Court found that Media One had not violated the
Programme Code on five or more occasions (¶¶23-26).
Reasons for denial of security clearance must be provided

The Supreme Court noted that the MHA only revealed its reasons for denying
security clearance to the High Court, and MBL was not given even a
summary of these reasons. This, according to the Court, undermined the
freedom of the press under Article 19(1)(a) of the Constitution and denied a
fair avenue to challenge the MIB’s decision, which infringed MBL’s right to a
fair hearing (¶57). The Court stated that the summary of reasons for denying
security clearance constitutes the bare minimum procedural safeguards, and
the MHA's failure to disclose its reasons represents an unreasonable and
arbitrary approach (¶102).

The Supreme Court disapproved of the practice of accepting evidence in

sealed cover. It stated that the non-disclosure of reasons for denial of
security clearance to MBL and the disclosure solely to the Court in a
sealed cover compromised the core principles of natural justice (¶58). It
was held that when relevant material is disclosed in a sealed cover, it
perpetuates a culture of secrecy and opaqueness, and makes it hard for the
aggrieved party (in this case MBL) to challenge the judgement (¶59).
Incorrect reasoning to deny security clearance
The Supreme Court observed that security clearance was denied to MBL
because of an alleged link between the shareholders of Media One and JEI-H,
and its alleged anti-establishment stance. The Court found that the IB had
solely relied on the content and ‘tenor’ of MBL’s published articles, and
content of Media One's broadcasted programs to establish a link between
MBL and JEI-H (¶98).
The Court held that firstly, JEI-H is not a banned organisation, and therefore,
the contention that links with JEI-H will affect national security cannot be
accepted, and secondly, there is no material to prove that the shareholders of
MBL are sympathizers of JEI-H (¶168). It was also held that the report of IB
is purely an inference drawn from information that is already in the public
domain and that there is nothing ‘secretive’ about this information to attract
the ground of confidentiality (¶99).
On the matter of the confidentiality of IB Reports, the Court held that
absolute immunity from disclosure for reports by investigative agencies is
antithetical to a transparent and accountable system, as these reports
significantly impact individuals’ lives, liberties, and professions (¶81).
The Supreme Court also noted that national security claims cannot be made
out of thin air. There must be concrete intelligence material backing such an
allegation. The Court held that the material produced by the Union of India
had no nexus with the national security threat raised (¶99).

Freedom of the press

The Supreme Court criticized the denial of security clearance to Media One
on the basis of the views which the channel is constitutionally entitled to
hold, expressing concern over the chilling effect on free speech and press
freedom. The Court clarified that criticism of governmental policy is not a
permissible reason to restrict expression under Article 19(2) of the
Constitution (¶167).
17. SUNDAR @ SUNDARRAJAN V. STATE BY INSPECTOR OF
POLICE
2023 INSC 264 (21 March 2023)
Justices:
Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Hima Kohli, Justice
Pamidighantam S. Narasimha
Question(s):
(i) Should the Supreme Court review the Petitioner’s conviction for
kidnapping and murder (under Sections 364A and 302 of the Indian
Penal Code, 1860)?
(ii) (ii) Is the award of the death penalty to the Petitioner justified?
Factual Background:
On 27 July 2009, the Petitioner kidnapped a seven-year-old child in
Kammapuram, Tamil Nadu. He made two calls to the victim’s mother,
demanding a ransom of Rs 5 lakhs. On 30 July 2009, the police raided the
house of the Petitioner and arrested him and a co-accused. The Petitioner
confessed to strangling the child and disposing of his body in a tank. On the
basis of the Petitioner’s confession, the police recovered the victim’s body
from the tank.
The Trial Court at Cuddalore found the Petitioner guilty of kidnapping and
murdering the child. He was convicted for kidnapping and murder under
Sections 364A and 302 of the Indian Penal Code, 1860 and sentenced to
death. The co-accused was acquitted of all offences.
The Petitioner appealed his conviction before the Madras High Court
unsuccessfully. An appeal to the Supreme Court before a Division Bench
(two judges) was also dismissed. Both the appellate courts upheld the
conviction and the award of the death penalty by the Trial Court.
In light of the Supreme Court’s ruling in Mohd. Arif alias Ashfaq v.
Registrar, Supreme Court of India,(2014 INSC 590) petitions seeking a
review of sentences of death penalty were required to be heard in open court.
The Petitioner argued that his conviction warranted a review since it suffered
from judicial errors. He argued that even if his guilt were established, the
Courts had failed to consider mitigating circumstances in awarding him the
death penalty, and his sentence ought to be commuted. The State of Tamil
Nadu urged that the errors alleged did not warrant an exercise of the Supreme
Court’s narrow review jurisdiction.
Decision of the Supreme Court:
The Supreme Court upheld the conviction of the Petitioner for kidnapping
and murder. However, it found that neither the Trial Court nor the appellate
courts had considered mitigating circumstances in awarding the death penalty
to the Petitioner, which was only appropriate in the rarest of rare cases. The
Supreme Court commuted the sentence of the Petitioner to life imprisonment
for not less than twenty years without remission. The judgment of the Court
was authored by Chief Justice Chandrachud.
Reasons for the Decision:
No errors apparent on the face of the record
The Court found that the Petitioner had failed to raise a reasonable doubt
about the prosecution’s case, which was based on strong witness testimonies
and documentary evidence (¶¶52-53). Satisfied with the concurrent findings
of the Trial Court, the High Court, and its Division Bench, the Supreme Court
upheld the conviction of the Petitioner for kidnapping and murder (¶93).
Consideration of mitigating and aggravating circumstances
The Supreme Court found that the Trial Court had not granted the Petitioner a
meaningful hearing on sentencing before awarding the death penalty (¶¶70-
71). Neither the Trial Court nor the appellate courts had made a genuine
effort to consider mitigating circumstances that suggested the possibility of
reform or rehabilitation for the Petitioner (¶79). Instead, the penalty had been
imposed and confirmed solely on the basis of the gruesome nature of the
crime (¶¶71-72, 81). The Division Bench of the Supreme Court had reasoned
that the Petitioner’s decision to target the only son of a family, who would
have carried on the family lineage, was an aggravating circumstance (¶75).
Citing its previous judgments, the Supreme Court emphasised that it was the
duty of a court to inquire into the mitigating circumstances of a criminal, and
rule out the possibility of their reformation and rehabilitation before awarding
the death penalty (¶81). This duty was to be discharged even if the accused
was silent (¶80). Further, the Court noted that the murder of the child,
regardless of its sex was an aggravating circumstance and that courts should
not make patriarchal value judgments that encourage the notion that only a
son furthers his family lineage (¶75).

The Supreme Court ruled that despite the grave crime committed by the
Petitioner, the death penalty was to be awarded only in the “rarest of rare
cases,” (Bachan Sigh v. State of Punjab 1980 INSC 120) and was not
appropriate in the present case (¶77). The Court considered mitigating
factors, noting that the Petitioner was twenty-three years old when he
committed the crime and had no previous criminal antecedents (¶88). It noted
that he had been in prison since 2009, where his conduct had been
satisfactory, except for an attempted escape in 2013 (¶88). The Petitioner had
earned a diploma in food catering while in jail and was suffering from
systemic hypertension (¶88). In view of these circumstances, the Court
commuted the Petitioner’s sentence to life imprisonment of not less than
twenty years without remission (¶92). It noted that although life sentences
subject to remission usually work out to fourteen years, this shorter sentence
was inadequate in view of the grave crime committed (¶91).

18. UNION OF INDIA . V. M/S. UNION CARBIDE CORPORATION

2023 INSC 222 (14 March 2023)
Justices:
Justice Sanjay K. Kaul, Justice Sanjiv Khanna, Justice Abhay S. Oka,
Justice Vikram Nath and Justice Jitendra K. Maheshwari
Question(s):
Whether the settlement order passed by the Supreme Court against Union
Carbide Corporation for the Bhopal Gas Tragedy disaster can be reconsidered
to increase the settlement amount.

Factual Background:
On the night of 2-3 December 1984, the escape of deadly chemical fumes
from Union Carbide India Limited’s (“Union Carbide India”) pesticide
factory in Bhopal led to the deaths of around 3,000 people and serious
injuries to over 30,000 others. In order to provide relief and remuneration to
the large number of victims, the Government of India enacted the Bhopal Gas
Leak Disaster (Processing of Claims) Act, 1985 (“Bhopal Claims Act”).
Under the Act, the Union Government assumed the exclusive right to
represent every person who was entitled to claim compensation. The Bhopal
Claims Act also allowed the Union Government to file cases for claims and to
enter into a compromise with Union Carbide India on behalf of the victims.
Union Carbide Corporation (“Union Carbide USA”), an American
corporation owned a majority of the shares of Union Carbide India. So, the
Union Government instituted a case against Union Carbide USA in India for
compensation.

After proceedings before the District Court in Bhopal and the Madhya
Pradesh High Court in which both courts awarded different amounts of
interim compensation to be paid by Union Carbide USA, both the Union
Government and Union Carbide USA filed petitions before the Supreme
Court of India. Later, Union Carbide USA and the Union Government
entered into a negotiated settlement in February 1989 whereby Union
Carbide USA agreed to pay $470 million to the Union Government as a final
settlement for all claims and liabilities arising out of the Bhopal Gas disaster.
The amount was calculated to ensure urgent relief to the victims and was
required to be deposited by 31 March 1989. Upon payment of the settlement
amount, all civil and criminal cases related to the disaster were to be closed.
The Supreme Court approved of the settlement in Union Carbide Corporation
v. Union of India (1989 INSC 60) (“UCC case”). In its judgment, the
Supreme Court also stated that in the unlikely situation of the settlement fund
being insufficient to provide compensation to the victims, the Union of India
should provide for the deficiency.
In the present case, the Union Government had filed a curative petition before
the Supreme Court in 2010 seeking to reopen the case and reconsider the
settlement amount. The Union Government requested the Court to increase
the settlement amount against Union Carbide USA following new facts and
data relating to the number of deaths and injuries.
Decision of the Supreme Court:
The Supreme Court passed a unanimous judgment rejecting the curative
petition filed by the Union of India. The Supreme Court held there was no
legal principle that justified an increase in compensation. The Supreme Court
also refused to increase the settlement amount using its discretionary powers
under Article 142 of the Constitution of India. The decision of the Court was
authored by Justice Kaul.
Reasons for the Decision:
Maintainability of the Curative Petition
The Supreme Court observed that a curative petition could be filed only on a
very limited number of grounds in order to rectify a gross miscarriage of
justice that was not previously recognised by the Court during its review
judgment.
The Supreme Court noted that the curative petition would lead to a re-
examination of its final judgment in the UCC case (¶26). The Court said that
the scope of review in a curative petition was very limited (¶26). The Court
held that increasing the settlement through a curative petition would exceed
the purpose of such a petition (¶26). However, the Court agreed to examine
the petition on its merits because of the importance of the matter (¶29).

Adequacy of the settlement amount

The Union of India submitted that the curative petition was filed because the
settlement amount agreed to was based on wrong facts and data that
underestimated the number of victims and the extent of monetary loss caused
to them by the disaster (¶15). The Union Government stated that it did not
want to reopen the suit but to increase the underlying settlement amount of
$470 million in light of the additional amounts claimed (¶¶15, 18).
The Supreme Court noted that the Union Government had opposed earlier
claims by private organisations which sought to enhance the amount of the
settlement fund (¶30). The Court also observed that the disbursement of
individual compensation amounts from the settlement fund had increased as
the exchange rate fluctuations of the Indian rupee against the US dollar had
led to an increase in the amount available to the Union Government (¶¶42,
43). The Court also noted that the Welfare Commissioner under the Bhopal
Claims Act had adjudicated the claims as per the law and that the Supreme
Court itself had previously found that the compensation provided was more
than what was reasonably available to the victims under the law (¶45). Thus,
according to the Court, all these observations reinforced the fact that the
settlement amount was sufficient to compensate the victims (¶45).
Responsibility of the Union Government

The Supreme Court also found that the Supreme Court had previously
directed the Union of India, being a welfare state, to take out relevant
insurance policies on behalf of future victims who were later born with or
developed any disabilities due to the disaster in order to fulfil any future
deficiency in the compensation (¶46). The Court criticised the Union of India
and said it was grossly negligent since it had failed to take out any such
insurance policies (¶46). Moreover, the Court noted that a sum of Rs. 50
crore was still lying undisbursed with the Reserve Bank of India to take care
of victims and ordered that this amount be utilised in accordance with the
Bhopal Claims Act in case of additional expenses (¶48).
Additional observations
The Supreme Court observed that there had been no allegations of fraud
committed by Union Carbide USA while negotiating the settlement amount
and legally, a settlement could only be set aside in cases of fraud (¶47). The
Court held that it would not be appropriate to use its inherent powers to do
justice under Article 142 of the Constitution in this case (¶47). Finally, the
Court noted that it was necessary to provide closure in this case since
otherwise, every private claimant could also start to lead evidence for extra
monetary damages and this would lead to inevitable judicial delay that would
favour UCC instead of the beneficiaries (¶49).

19. ANOOP BARANWAL V. UNION OF INDIA MINISTRY OF LAW

AND JUSTICE SECRETARY
2023 INSC 190 (2 March 2023)
Justices:
Justice Kurian M. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose,
Justice Hrishikesh Roy, Justice Chudalayil T. Ravikumar
Question(s):
Whether the Supreme Court is required to pass any directions to ensure the
independence of the Election Commission of India (“ECI”) given that
Parliament has not passed any law under Article 324 specifying the
appointment process for Members of the ECI.
Factual Background:
Article 324 of the Constitution states that the ECI shall supervise and control
elections. Article 324(2) specifically provides that the President is responsible
for appointing the Chief Election Commissioner and Election
Commissioners, subject to any law enacted by Parliament. Parliament had not
made any law for the appointment of ECI Members. In the absence of such
legislation, the President has been making appointments based on the Prime
Minister's recommendations.
Several Writ Petitions were filed in the Supreme Court asserting that the
existing procedure for appointing members to the ECI is unconstitutional.
The Petitioners contended that under the existing system, the executive
government exclusively holds the authority for appointments, which is
eroding the ECI's independence. The Petitioners requested the Supreme Court
to issue directions for the establishment of an independent system for ECI
appointments. The Union of India responded saying that judicial intervention
in the appointment procedure of ECI members would violate the separation
of powers and even under the current appointment process, the ECI has been
able to demonstrate its independence as free, fair, and timely elections have
been held.
Decision of the Supreme Court:
The Supreme Court ruled in favour of the Petitioners and laid down
guidelines to constitute a selection committee consisting of the Prime
Minister of India, the Leader of the Opposition in the Lok Sabha, and the
Chief Justice of India for appointing ECI members until a law is made by the
Parliament. The Court concluded that the framers of the Constitution clearly
contemplated a law by Parliament under Article 324 and did not intend the
executive to exclusively make appointments to the Election Commission.
Seven decades have passed and no law has been framed. There is a clear
legislative vacuum and continuing appointments to the ECI solely by the
executive will have an adverse effect on the fundamental rights of the people
and democracy. Hence, the Supreme Court held that it was appropriate for the
Court to lay down norms for the appointment of ECI Members which will be
effective until Parliament passes a law. The judgment of the Court was
authored by Justice K.M. Joseph. Justice Ajay Rastogi wrote a concurring but
separate opinion.

Reasons for the Decision:

a. Framers of the Constitution sought to protect ECI’s independence
The Supreme Court referred to the Constituent Assembly Debates of 1949 to
determine the intent of the Constitution’s framers. Dr B. R. Ambedkar
pointed out that the election machinery should not be under the control of the
government of the day, and the elections should be conducted by an
independent body called the Election Commission (¶30). The Court found
that it is clear that the Members of the Constituent Assembly did not want the
appointment to the Election Commission to be made solely by the executive
(¶32). The Court Bench found that the phrase ‘subject to the provisions of
any law to be made by the Parliament’ in Article 324(2) demonstrated the
intention of the framers of the Constitution to ensure the independence of the
ECI but leave the specific appointment process for Parliament to prescribe by
law (¶33).
the Supreme Court observed that the framers of the Constitution clearly
intended that Parliament would step-in and make a law, and that the
appointment by the executive was a mere transient or stop-gap arrangement
to be replaced by a law taking away the exclusive power of the executive to
appoint ECI members (¶227). The absence of law even after seven decades
creates a legislative vacuum which makes it necessary for the Court to step in
and provide guidelines (¶227).

b. Additional reasons to protect ECI’s independence

The Supreme Court noted that Article 324 gives the ECI the entire
responsibility to hold the national and state elections and carries with it the
necessary powers to discharge this function (¶150). The Court held that since
the ECI discharges such important functions integral to democratic process in
the country, the ECI should be independent, fair, and follow the rule of law
(¶165). The Court noted that an Election Commission which does not ensure
free and fair polls, guarantees the breakdown of the rule of law (¶219).

The Supreme Court noted that the ECI needs to be free from executive
control because
(i) a party in power naturally has an incentive to remain in power and may
seek to interfere with the ECI’s independence to retain power (¶222);
(ii) (ii) if the Election Commission exercises their powers unfairly or
illegally then it has a chilling effect on the fortunes of political parties
 and inequality in the treatment of political parties would violate the
principle of equality under Article 14 (¶165); and
(iii) (iii) Justice Ajay Rastogi’s separate opinion emphasised the need for
objective selection of ECI members to ensure transparency and
accountability (¶28 J. Rastogi).
Composition of independent commission
The Supreme Court took note of the fact that the appointment of the Director
of the Central Bureau of Investigation is made on the recommendation of a
committee consisting of the Prime Minister as the Chairperson, the Leader of
the Opposition in the Lok Sabha, and the Chief Justice of India or a Judge of
the Supreme Court nominated by him. Similarly, in the appointment of the
Chairperson and Members of the Lokpal, under the Lokpal and Lokayuktas
Act, 2013, the Chief Justice is one of the five members of a selection
committee. The Court also took note of the Report of the Goswami
Committee and the Two Hundred and Fifty-Fifth Law Commission Report to
come up with the selection committee for the appointment of ECI members
(¶229).
Justice Ajay Rastogi in his separate opinion undertook a comparative analysis
of the appointment of the head of election-conducting bodies across the world
and noted that in most jurisdictions, such appointments are a consultative
process, involving members of both the ruling party and the opposition party
(¶107 J. Rastogi). The opposition's presence in decision-making processes of
governance is essential for a healthy democracy, ensuring accountability and
fostering deliberative processes (¶107 J. Rastogi). He also noted that some
jurisdictions have constitutional functionaries such as Speakers of the house
of the legislature, and judges of the highest court in the country in a multi-
member committee (¶107 J. Rastogi).
Short terms undermine independence
The Supreme Court noted that according to Section 4 of the Conditions of
Service of Election Commissioners and Transaction of Business Act, 1991,
an Election Commissioner is entitled to a term of six years subject to the
condition that the officer would have to vacate the office upon his reaching
the age of sixty-five years (¶189). The Court noted that the Union
Government has constantly been choosing members who are close to
attaining the age of sixty-five since 2004 (¶52). The Court observed that the
condition of having a tenure less than six years should be an exception and
not the norm. The Court found that short terms undermined the independence
of the Election Commission and defeated the policy of independence (¶195).
Additional observations
The Supreme Court noted that the grounds of removal of Chief Election
Commissioner (CEC) are the same as that of a Supreme Court judge i.e.
removal by a resolution by a two-thirds majority of Parliament on the ground
of proven misbehaviour or incapacity. However, an Election Commissioner
can be removed on the recommendation of the CEC. The Court held that
there is no need to make the removal process for Election Commissioners the
same as that of the CEC (¶233).
Justice Ajay Rastogi in his separate opinion suggested that the grounds of
removal of the Election Commissioners should be the same as that of the
CEC to ensure the neutrality and independence of the office (¶125 J.
Rastogi).
The Petitioners sought a direction from the Supreme Court that the ECI be
provided with a permanent Secretariat and its expenses charged to the
Consolidated Fund of India. The Court noted that it was a matter of policy
that can be provided for by a law (¶239).

20. APARNA AJINKYA FIRODIA V. AJINKYA ARUN FIRODIA

2023 INSC 146 (20 February 2023)
Justices:
Justice V. Ramasubramanian, Justice B. V. Nagarathna
Question(s):
Whether DNA test of a child can be directed in divorce proceedings to prove
the ground of adultery.
Factual Background:
The husband (Respondent) in an ongoing divorce proceeding filed an
application to ascertain the paternity of the second child born to his wife
during their marriage by a deoxyribonucleic acid test (“DNA test”). The
Family Court allowed it and the decision was affirmed by the Bombay High
Court.

The wife (Petitioner) approached the Supreme Court against the decision of
the Bombay High Court.
Decision of the Supreme Court:
The Supreme Court held that in this case it is not in the best interest of the
child to allow the DNA test because the ultimate object for demanding DNA
test is not for determining parentage of the child but for proving allegations
of adultery (extramarital relations) during the marriage, which can be proved
by adducing any other evidence. The Court also held that children have the
right not to have their legitimacy questioned frivolously before a court of law.
This is an essential attribute of their right to privacy. The judgment of the
Court was authored by Justice B.V. Nagarathna and signed by Justice V.
Ramasubramanian. Justice V. Ramasubramanian also wrote a separate
concurring opinion.
Reasons for the Decision:
DNA Tests of Children : Principles
Justice Nagarathna summarised the principles of when a Court should
direct a DNA test on a minor (¶12):
DNA tests of children shall not be conducted in a routine manner in case of
matrimonial disputes unless there is no other way of proving infidelity .
Section 112 of Indian Evidence Act, 1872 provides that a child born during a
valid marriage is considered to be the legitimate child of the husband. A DNA
test of a child born during continuance of a valid marriage can only be
directed when the husband can prove he did not have access to the wife.
No DNA Test is justified when paternity of a child is not directly in issue, but
is merely collateral to the proceeding .
While directing DNA tests to prove adultery, the Court should consider the
consequences on the children born out of adultery, including inheritance-
related consequences and social stigma.
Right to Privacy of Children
The Supreme Court noted that a child's right to privacy is not equal to that of
an adult. However, children have their own identity, and Article 8 of the
United Nations Convention on Rights of Child provides children with an
express right to preserve their identity (¶21). The Court noted that one's
genetic information is personal and intimate and is protected by the right to
privacy applicable to children(¶16). The Court held that the details of their
parentage form an essential attribute of a child's identity and therefore they
should not be challenged frivolously before the courts (¶21).

Best interests of a child

The Supreme Court stated that the interest of the child should be given
primary consideration in actions involving children. The Court noted that a
revelation of illegitimacy of a child through a DNA test can not only cause
confusion in the mind of the child but a quest to find out who is his/her real
father (¶22). The Court observed that not knowing who one’s father is creates
a mental trauma in a child, and may lead to a bittering relationship between
the child and parents (¶22.3). Further, this also creates lots of social stigma
towards both the child and the mother. Hence, the Court held that a parent
may, in the best interests of the child, choose not to subject a child to a DNA
test (¶22.3).
Justice V. Ramasubramanian in his separate opinion observed that whether
DNA tests should be allowed or not should be decided by looking from the
child's perspective and not from the perspective of the parents (¶33 J.
Ramasubramanian). The child cannot be used as a means to prove adulterous
(out of marriage) relations. The adulterous conduct of the wife can be proved
by the respondent by advancing other evidence but the identity of the child
should not be compromised (¶33 J. Ramasubramanian).
Adverse inference cannot be drawn
J. Ramasubramanian in his separate opinion took note of Illustration (h)
under Section 114 of Indian Evidence Act, 1872. It says that if a man refuses
to answer a question which he is not compelled to answer by law, the Court
may presume that the answer, if given, would be unfavourable to him (¶16 J.
Ramasubramanian). J. Ramasubramanian held that if the wife raises an
objection as to the DNA test of the child for her benefit, then the presumption
under Section 114, illustration (h) can be raised against her. However, if the
wife raises objections as to the DNA test of the child in the capacity of a
mother for the benefit of her child then no presumption under the said
provision can be drawn against her (¶28 J. Ramasubramanian).

21. BAR COUNCIL OF INDIA V. BONNIE FOI LAW COLLEGE .

2023 INSC 116 (10 February 2023)
Justices:
Justice Sanjay K. Kaul, Justice Sanjiv Khanna, Justice Abhay S. Oka,
Justice Vikram Nath, Justice Jitendra K. Maheshwari
Question(s):
Whether the Bar Council of India can prescribe either a pre-enrolment or a
post-enrolment examination (like the All India Bar Examination) as a
necessary condition for practising as an advocate.
Factual Background:
Bonnie Foi Law College (“College”) applied to the Bar Council of India
(“BCI”) to offer a law degree course. A dispute arose between the BCI and
the College. In 2009, the Supreme Court appointed an inspection team which
visited the College and gave a report pointing out shortcomings in the
infrastructure and functioning of the college.
During this matter, a larger question of diminishing standards of legal
education provided at various law colleges in India came before the Supreme
Court. The Court appointed a three-member Committee to examine issues
relating to affiliation and recognition of law colleges and to identify areas of
improvement. The report submitted by this committee led to the first All
India Bar Examination (“AIBE”) being conducted in 2010, by a specially
constituted independent body consisting of experts of various disciplines.
During the hearing, a case of V. Sudeer v. Bar Council of India (1999
INSC 105) (“V. Sudeer”) came up for reconsideration, the Supreme
Court in V. Sudeer held that the BCI has no power under Advocates Act
to prescribe rules for a pre-enrolment training or examination as a
necessary condition for practice as an advocate.
In 2016, a three-judge bench of the Supreme Court opined that the questions
in the present matter are of considerable importance affecting the legal
profession in general and need to be authoritatively answered by a
Constitution Bench.
Decision of the Supreme Court:
The Supreme Court held that the BCI has the power to prescribe a post-
enrolment examination like the All India Bar Examination as a necessary
condition to practice as an advocate. The Court held that the BCI also has
the power to prescribe a pre-enrolment examination or necessary pre-
enrolment training as a condition for practicing as an advocate. The Court
declared that the decision in V. Sudeer was incorrect. The judgment of the
Court was authored by Justice Sanjay K. Kaul.
Reasons for the Decision:
a. Scope of BCI’s powers under Advocates Act, 1961
The Supreme Court took note of Section 7 of the Advocates Act, 1961
(“Advocates Act”) which provides for functions of the BCI. In particular,
Section 7(1)(h) provides for the promotion of legal education and for the
laying down of standards for such education in consultation with Universities
in India and State Bar Councils (¶20). The Court also noted that Section 49 of
the Advocates Act deals with the general powers of BCI to make rules and
Section 49(1)(ah) & (ag) specifically deals with the conditions subject to
which an Advocate shall have the right to practise (¶¶26-27). The Court held
that considering Section 7 and Section 49 of Advocates Act, the BCI has
powers to provide for a pre-enrolment training course or an examination for
enrolment of advocates as the BCI is directly concerned with the standard of
persons who want to obtain a licence to practice law as a profession (¶¶20,
31-32). The Court declared that it is left to the BCI to decide at what stage the
All-India Bar Examination will be held, that is, pre-enrolment or post-
enrolment (¶35).
b. Need for Quality Control of Lawyers
The Supreme Court noted that quality of lawyers is an important aspect of
administration of justice and access to justice (¶9). The Court held that
quality control of lawyers entering into the profession is the need of the hour
and a provision of an All India Bar Examination for enrolment serves the
purpose (¶32).
c. Suggestions to the BCI regarding conduct of AIBE
a. The Supreme Court, while upholding the validity of AIBE, gave certain
suggestions to the BCI regarding the conduct of the examination:
 b. The schedule of conducting AIBE twice in a year should be strictly
followed as otherwise the students with law degrees would be unable to
practice (¶36).
c. Students in the final Semester of course of law could be allowed to take
AIBE and the result of AIBE would be subject to passing all college
examinations (¶38).
d. Any law graduate who is yet to appear for AIBE or get enrolled under
the Advocates Act, 1961 should be able to do all the tasks allied to the
legal profession other than pleading before the courts (¶39).
e. Lawyers who are in non-legal jobs for a certain number of years should
re-qualify AIBE to rejoin the legal profession (¶42).
f. Different State Bar Councils are charging different fees for enrolment.
The BCI must make sure that a uniform pattern is observed and the fee
does not become oppressive at the threshold of young students joining
the profession (¶44).

22. JOSEPH SHINE V. UNION OF INDIA SECRETARY

2023 INSC 87 (31 January 2023)
Justices:
Justice Kuttiyil M. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose,
Justice Hrishikesh Roy, Justice Chudalayil T. Ravikumar
Question(s):
Whether the Supreme Court’s judgment in Joseph Shine v. Union of India
(“2018 Joseph Shine case”), where the Court struck down as unconstitutional
the offence of adultery under Section 497 of the Indian Penal Code, 1860
(“IPC”), also applied to individuals in the armed forces.
Factual Background:
The Union of India sought a clarification on whether the judgment of the
Supreme Court in the 2018 Joseph Shine case applied to the members of the
armed forces who are governed by the Army Act, 1950, Air Force Act, 1950
and Navy Act, 1957. These three Acts had provisions punishing individuals in
the armed forces for violations of discipline. Such violations included, among
others, promiscuous or adulterous acts. Since the 2018 Joseph Shine case
declared adultery under Section 497 of IPC as unconstitutional, the Union of
India filed a petition to clarify whether the judgment in that case would also
apply to the armed forces who are governed under these special laws and
whether the judgment would affect proceedings concerning allegedly
adulterous acts punishable under the Army Act, Air Force Act and Navy Act.

In the 2018 Joseph Shine case, a Constitution Bench of the Supreme Court
ruled that Section 497 of the IPC was unconstitutional as it offended Articles
14, 15 and 21 of the Constitution of India and unreasonably discriminated
between a man and a woman. Section 497 of the IPC defined adultery on the
basis that if a person (a man) had consensual sexual intercourse with the wife
of another man, without the consent of that man, then such person would be
liable for having committed adultery. However, the wife could not be
punished in such cases. The Court in the same case also struck down Section
198(2) of the Criminal Code of Procedure (“CrPC”) as it treated only the
husband of a woman who committed adultery as an aggrieved person who
could file a complaint, and did not extend the same treatment to the wife of a
man who had engaged in adultery. The Court held that this statutory
provision reflected an antiquated approach where wives were considered the
“property” of men.
Decision of the Supreme Court:
The Supreme Court unanimously held that its decision in the 2018 Joseph
Shine case did not consider whether the invalidation of Section 497 of the
IPC applied to the Army Act, Air Force Act or Navy Act that governed the
armed forces. Thus, the striking down of adultery under the IPC did not affect
proceedings against members of the armed forces under the Army Act, Air
Force Act or Navy Act. Justice Joseph authored the judgment of the Court.
Reasons for the Decision:
Article 33 of the Constitution states that Parliament has the power to enact a
law to modify the applicability of Fundamental Rights to the armed forces.
The Union of India submitted that the armed forces were a distinct class and
thus, the judgment of the Supreme Court in the 2018 Joseph Shine case
would not apply to them since the Army Act, Air Force Act and Navy Act
were separate codes which operated independently of the IPC (¶11). The
Union of India submitted that where a member of the armed forces was
charged with unbecoming conduct and it consisted of adultery, then the
judgment in the 2018 Joseph Shine case should not prevent authorities in the
armed forces from taking action against such member (¶¶11-12).

The Supreme Court held that its judgment in the 2018 Joseph Shine case was
only concerned with the constitutional validity of Section 497 of the IPC and
198(2) of the CrPC (¶23). In that case the Court did not consider the validity
of the provisions in the Army Act, Air Force Act or Navy Act punishing
adultery (¶23). Therefore, the Court held that the judgment in the 2018
Joseph Shine case had no effect on the operation of proceedings against
members of the armed forces under the Army Act, Air Force Act or Navy Act
(¶24).

23. COMMON CAUSE (A REGD. SOCIETY) DIRECTOR SH. H.D.

SHOURIE V. UNION OF INDIA (A) MINISTRY OF HEALTH AND
FAMILY WELFARE SECRETARY
2023 INSC 77 (24 January 2023)
Justices:
Justice KuttiyilM. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose,
Justice Hrishikesh Roy, Justice Chudalayil T. Ravikumar
Question(s):
Do the euthanasia guidelines issued by the Supreme Court for terminally ill
patients in Common Cause (A Regd. Society) v Union of India need to be
modified?

Factual Background:
On 9 March 2018, a Constitution Bench (five judges) of the Supreme Court,
in Common Cause (A Regd. Society) v Union of India, (“Common Cause”)
upheld the right to die with dignity, and gave legal recognition to an
‘Advance Medical Directive’ (“AMD”) or a ‘living will’. An AMD allows
individuals to outline their wishes regarding the withdrawal of life-sustaining
treatment in the event they become terminally ill or are in a persistent
vegetative state and are unable to communicate their desires, thereby
allowing them to end their prolonged [Link] Court laid down
guidelines for creating an AMD, including who can execute an advance
directive, what it should contain, how it should be recorded and preserved,
and when and by whom can it be given effect. It was clarified by the Court
that the guidelines shall remain in force till the Parliament brings a legislation
in the field.
Subsequently, the Indian Society of Critical Care Medicine filed an
application seeking certain modifications and clarifications of some of the
guidelines in the Common Cause judgment. They argued that many obstacles
were faced in the implementation of the Court’s guidelines.
Decision of the Supreme Court:
The Constitution Bench (five judges) modified the Common Cause judgment
dated 9 March 2018, and simplified the procedure for executing AMDs, such
as significantly reducing the role of Judicial Magistrate First Class. The
objective was to streamline the process to address practical challenges
encountered during the implementation of the directives. The judgment of the
Court was authored by Justice Joseph.
Reasons for the Decision:
Reduced role of Judicial Magistrate First Class (“JMFC”)

The Supreme Court reduced the involvement of JMFCs, recognizing the

difficulties an ordinary individual may face in accessing a judicial magistrate.
Previously, the guideline mandated that the AMD had to be signed by two
attesting witnesses and countersigned by a JMFC. However, the Court
revised this requirement, eliminating the role of a JMFC. Now, the AMD can
be signed in the presence of two attesting witnesses, and before a notary or a
Gazetted Officer, who can confirm that the document was executed
voluntarily.
Additionally, the earlier guidelines tasked the JMFC with informing the
family members of the executor about the AMD’s execution. This guideline
has been modified, placing the responsibility on the executor to inform their
family members and family physician, and provide them with a copy of the
AMD.
Previously, when the treating physician was informed about the AMD, they
were required to verify its genuineness from a JMFC. Now, the genuineness
must be verified from existing digital health records or the custodian of the
document.
The Supreme Court also deleted certain guidelines pertaining to the role of a
JMFC, such as the JMFC’s duty to preserve a copy of the advance directive
in his office, to forward it to the Registry of the jurisdictional District Court
for being preserved, and the JMFC’s duty to hand over a copy of the AMD to
the family physician.
Constitution of the Medical Board
The earlier guidelines required the treating physician to determine if the
AMD is genuine and if there is any hope of the patient being cured, before
they suggest withdrawing treatment. The hospital must then form a Medical
Board comprising the head of the treatment department and at least three
experts with over twenty years of experience in general medicine, cardiology,
nephrology, neurology, oncology or psychiatry, with an added experience in
critical [Link] the Medical Board certifies that the instructions in the AMD
should be carried out, the District Collector is charged with creating a second
Medical Board which will include the Chief Medical Officer of the district.
The same experience requirements will apply to the three new doctors
selected for the second medical board. After visiting the patient, this medical
board will decide if they agree with the decision of the hospital’s medical
board.

Recognizing the challenge of finding doctors with over twenty years of

experience in many regions of the country, the Supreme Court eased the
qualification requirement for board members. The guidelines were modified
to stipulate that doctors now only need a minimum of five years of
experience to serve on the renamed ‘Primary’ and ‘Secondary’ medical
boards. The Secondary board will no longer include the Chief Medical
Officer. Instead, the Chief Medical Officer will nominate a registered medical
practitioner. The minimum number of board members for both boards has
been reduced to three. Further, the Court placed a time limit of forty eight
hours on each medical board to arrive at a decision.

24. KAUSHAL KISHOR V. THE STATE OF UTTAR PRADESH

GOVT. OF U.P. HOME SECRETARY
2023 INSC 4 (3 January 2023)
Justices:
Justice Syed A. Nazeer, Justice Bhushan R. Gavai, Justice Ajjikuttira S.
Bopanna, Justice V. Ramasubramanian, Justice B. V. Nagarathna

Question(s):
(i) Are the grounds enumerated in Article 19(2) of the Constitution the
only reasons for which free speech can be restricted under the
Constitution?
(ii) (ii) Can fundamental rights under Articles 19 or 21 of the
Constitution be enforced against non-State actors (e.g., other citizens
or private companies)?
(iii) (iii) Is the State duty-bound to protect the Article 21 right of a
citizen, when infringed by non-State actors?
(iv) (iv) Can a statement made by a Minister about State affairs be
attributed to the Government?
(v) (v) Can a statement by a Minister, inconsistent with the
fundamental rights of a citizen, be held to violate a citizen’s rights?
Factual Background:
On 29 July 2016, a woman and her minor daughter were allegedly gangraped
on National Highway 91. The victims petitioned the Supreme Court, seeking
transfer of the trial to Delhi from Uttar Pradesh, in the hope of a fair
investigation. The victims also sought action against Mr. Azam Khan,
Minister for Urban Development in the Uttar Pradesh Cabinet, who had
labelled the incident an “opposition conspiracy” hatched to defame the State
Government. On 5 October 2017, a Three-Judge Bench referred the questions
arising for consideration in this petition to a Constitution Bench (five judges).
On 10 November 2017, the Three-Judge Bench clubbed the petition with an
appeal from Kerala that raised similar issues. The appeal challenged the
inaction of the Government of Kerala in addressing derogatory statements
about women made by its Minister for Electricity, Mr. M. M. Mani.
On 24 October 2019, the Constitution Bench framed the above-mentioned
five questions for consideration.

Decision of the Supreme Court:

The Supreme Court found that the grounds enumerated in Article 19(2) for
restricting the right to free speech were exhaustive, and that free speech
cannot be restricted for reasons not found in Article 19(2). The Court held
that Articles 19 and 21 could be enforced against non-State actors (e.g., other
citizens or private companies). It also found that the State has an affirmative
duty to protect a person’s rights under Article 21, even against non-State
actors.
The Court held that a statement made by a Minister about State affairs, could
not be attributed to the Government. It also held that a mere statement by a
Minister which undermined the fundamental rights of a person or citizen
would not be actionable unless it led to an act or omission of public officers
that caused harm or loss to the person or citizen. The judgment of the Court
was authored by Justice Ramasubramanian. Justice Nagarathna wrote a
separate opinion which dissented on certain issues.
The Constitution Bench of the Supreme Court directed that the petition from
Uttar Pradesh and the appeal from Kerala be listed before regular benches of
the Court to be decided in accordance with the principles laid down by the
Constitution Bench.
Reasons for the Decision:
a. Exhaustive nature of Article 19(2)

The Supreme Court found that the eight grounds to impose “reasonable
restrictions” on free speech were comprehensive and exhaustive ((¶¶28, 32).
They anticipated all possible attacks on individuals, classes of people,
society, the State, the Court and the country— the subjects whom the Article
sought to protect (¶32, J. Ramasubramanian, ¶35, J. Nagarathna).

Free speech could not be restricted for any additional reasons, including by
invoking other fundamental rights (¶45, J. Ramasubramanian, ¶35, J.
Nagarathna)
. Where two fundamental rights staked rival claims, they were to be balanced
using established tools of judicial interpretation (¶¶44-45).
Enforceability of Fundamental Rights against non-State actors

The Supreme Court found that some fundamental rights were enforceable
against non-State actors (¶75). The Court acknowledged that although it had
been wary of extending the enforcement of fundamental rights to private
individuals, its approach had evolved over time (¶76). Rights once
exclusively enforced against the State, were gradually enforced against
private individuals with regard to the public duties or functions they
performed (¶77-78). Hence, the Court held that Articles 19 and 21 could be
enforced against parties other than the State and its instrumentalities (¶78). It
observed that initially, only the State was thought capable of lawfully
depriving a person’s life and personal liberty (¶82). However, over time,
violations of Article 21 by non-State actors had become possible. First, this
was because Article 21 had been interpreted to include a host of associated
rights to protect a person’s dignity (such as the right to livelihood and
environment), and second, traditional Government functions had been
outsourced to private actors and public-private partnerships (¶84).

Justice Nagarathna disagreed. In her partly dissenting opinion, she held that
fundamental rights under Articles 19 and 21 could not be enforced against
private actors, unless they had been recognised in statute or common law
(¶43, J. Nagarathna). Enforcing fundamental rights against non-State actors
would ignore the difference between a fundamental right and a common law
right (¶43, J. Nagarathna). However, a writ of habeas corpus could be sought
against a private person for an Article 21 violation, since illegal detention,
whether effected by the State or a private party, had an identical effect on the
life and liberty of the detainee (¶43, J. Nagarathna).

Government not responsible for individual Minister's statements

The Petitioners argued that Ministers making wayward statements should be

subject to disciplinary action. However, the Supreme Court stated that a
‘Code of Conduct for Ministers’ could not be enforced in a court of law
(¶127), and that the Prime Minister or Chief Minister did not have
disciplinary control over the Council of Ministers (¶128).

The Supreme Court concluded that a statement made by a Minister about

State affairs, or to protect the Government, could not be ascribed to the
Government by invoking the principle of collective responsibility (¶137). It
observed that the principle of collective responsibility envisioned in Articles
75(3) and 164(2) of the Constitution required the Council of Ministers to be
responsible to the legislature, not the Chief Minister or Prime Minister
(¶126). Even though each individual Minister is responsible for the decisions
taken collectively by the Council of Ministers, the statements of individual
Ministers made outside the legislature could not be attributed to the Council
of Ministers (¶135).

On the contrary, Justice Nagarathna (in her partly dissenting opinion) held
that a statement by a Minister, made in an official capacity, could be
attributed to the Government if it were representative of the views of the
Government itself (¶45, J. Nagarathna).

Requirements for a constitutional tort

The Supreme Court found that the Government could not be held responsible
for a mere statement by a Minister which undermined a citizen’s or person’s
constitutional rights. It could only be held responsible if, as a consequence of
that statement, public officers did or failed to do something which caused
harm or loss to the citizen or person (¶154).

Justice Nagarathna identified the need for a proper framework to determine

the acts and omissions of Government agents which would constitute a
constitutional tort. She noted that the Government would not be held
responsible if the statements of its agents caused harm or loss to a citizen or
person, unless the views expressed in the statements aligned with its own
(¶66, J. Nagarathna)

26. VIVEK NARAYAN SHARMA V. UNION OF INDIA

2023 INSC 2 (2 January 2023)
Justices:
Justice Syed A. Nazeer, Justice Bhushan R. Gavai, Justice Ajjikuttira S.
Bopanna, Justice V. Ramasubramanian, Justice B. V. Nagarathna
Question(s):
Whether ‘demonetisation’ (i.e., that ?500 and ?1,000 notes will not be legal
tender) was legal and constitutional.
The Supreme Court framed 5 issues:
 a. Whether (i) the Union Government’s power under Section 26(2) of the
Reserve Bank of India Act, 1934 (“RBI Act”) to declare invalid “any
series” of bank notes meant the Union Government could declare
invalid all series of bank notes of a particular denomination (?500 and ?
1,000); and (ii) if the Union Government could remove all series of a
particular denomination, whether this amounted to excessive delegation
of power to the Union Government.
b. Whether the Notification dated 8 November 2016 (“Demonetisation
Notification”) should be struck down because it was based on a legally
flawed decision-making process.
c. Whether the 2016 Notification should be struck down as a
disproportionate action.
d. Whether the time period provided for exchange of notes by the 2016
Notification was reasonable.
e. Whether the RBI has an independent power under Section 4(2) of the
Specified Bank Notes (Cessation of Liabilities) Act, 2017 (“Bank Notes
Act 2017”) to accept the demonetised notes beyond the period specified
in the Notifications issued under Section 4(1) of the Bank Notes Act.
Factual Background:
On 8 November 2016, the Union Government issued the Demonetisation
Notification under Section 26(2) of the RBI Act, 1934. Section 26(2) of the
RBI Act states that on recommendation of the Central Board of the RBI, the
Union Government may declare that “any series” of bank notes of any
denomination shall cease to be legal tender. The Union Government had
initially requested the Central Board of the RBI to consider recommending
the demonetisation of certain high-value denominations of currency notes in
order to reduce fake currency notes and black money in the Indian economy.
The RBI’s Central Board considered the proposal and recommended
demonetisation and thereafter, the Demonetisation Notification was issued by
the Union Government.

The Demonetisation Notification declared that all the existing series of ?500
and ?1000 notes shall cease to be legal tender from 9 November 2016. The
policy of demonetisation fixed a time period (initially up to 30 December
2016 and later extended by subsequent Notifications to 30 June 2017) for
individuals to exchange their bank notes in various banks, subject to certain
conditions.

The Parliament of India subsequently enacted the Bank Notes Act, 2017.
Section 3 of the Bank Notes Act provided that the specified bank notes that
ceased to be legal tender under the Demonetisation Notification would no
longer be legally guaranteed by the RBI. Section 4 of the 2017 Act provided
for a grace period for certain classes of persons to return the specified bank
notes to the RBI.
The legal validity of the Demonetisation Notification and policy was
challenged in multiple petitions before various High Courts and the Supreme
Court of India. The Supreme Court transferred all such matters to itself and
the case was referred to a Constitution Bench of the Court (five judges).
Decision of the Supreme Court:
The Constitution Bench of the Supreme Court, by a majority of 4:1, held that
the policy of demonetisation and the Demonetisation Notification were
legally and constitutionally valid. Justice Gavai authored the majority
judgment on behalf of himself and Justices Nazeer, Bopanna and
Ramasubramanian. Justice Nagarathna authored a dissenting minority
opinion.
The Supreme Court held that the Union Government had the power under
Section 26(2) of the RBI Act to declare ‘all’ series of bank notes invalid and
this included the power to invalidate all series of a denomination of notes.
The majority further held that interpreting the provision in this manner does
not excessively delegate power to the Government as the power can only be
exercised on the recommendation of the RBI’s Central Board. The majority
held that the Demonetisation Notification: (i) was not based on a flawed
decision making process; (ii) was proportional; and (iii) the time period for
exchange of notes was reasonable.
The dissenting opinion by Justice Nagarathna held that only the Central
Board of the RBI could recommend demonetisation of “any” (and not “all”)
series of bank notes under Section 26(2) of the RBI Act. The Union
Government could elect to accept such recommendation and issue a
notification under Section 26(2) to bring it into effect. In Justice Nagarathna’s
view, the Union Government could only demonetise “any” or “all” series of
bank notes without the recommendation of the Central Board of the RBI by
passing a law in Parliament.
Reasons for the Decision:
Interpreting Section 26(2) of the RBI Act
The Supreme Court held that the scope of the term “any series” used in
Section 26(2) of the RBI Act had to be interpreted in light of the special
nature and objectives of the RBI Act (¶¶146-147). The RBI was created with
the purpose of issuing bank notes and currency on behalf of the Union
Government and this power was conferred on the RBI by the Parliament of
India under the RBI Act (¶149). Since Parliament itself conferred powers on
the Union Government to act on recommendations of the Central Board of
RBI under the RBI Act, the Court held that such powers cannot be interpreted
in a restrictive manner (¶149). This meant that the term “any series” of a
denomination in Section 26(2) can mean “all series” of a denomination. Thus,
the Union Government, on the recommendation from the Central Board of
the RBI could demonetise all series of ?500 and ?1,000 bank notes (¶¶151,
158).
In her dissent, Justice Nagarathna held that Section 26(2) of the RBI Act was
limited only to proposals for demonetisation initiated by the Central Board of
the RBI (¶¶15.13, 15.25, J. Nagarathna). On examining the document records
submitted by the Union Government and the RBI, Justice Nagarathna found
that the demonetisation proposal was initiated by the Union Government and
not by the Central Board of the RBI (¶17, J. Nagarathna). Since the procedure
prescribed in Section 26(2) of the RBI Act was not followed, she held that the
Demonetisation Notification was unlawful (¶19.5, J. Nagarathna). Moreover,
considering the serious economic ramifications of such an exercise, such
demonetisation must have been carried out by legislation and not by an
executive action like the Demonetisation Notification (¶15.13, J.
Nagarathna).
Issue of excessive delegation
The Petitioners argued that if the term “any series” used in Section 26(2) of
the RBI Act allowed the Union Government to demonetise all series of a
denomination, this would give the Union Government unguided, arbitrary
and excessive powers (¶160). The Supreme Court ruled that a mere
possibility of abuse of delegated powers is not a ground to strike down a law
(¶193). The Court stated that Section 26(2) of the RBI Act had an in-built
safeguard since the decision to demonetise had to be taken on the
recommendation of the Central Board of the RBI (¶201). Thus, the Court
held that Section 26(2) did not suffer from the problem of excessive
delegation (¶211).
In her dissenting opinion, Justice Nagarathna stated that under Section 26(2)
of the RBI Act, only the Central Board of RBI could initiate a proposal for
demonetisation but it cannot do so for “all” series or “all” denominations of
bank notes as that would lead to granting excessive delegated powers to the
RBI (¶5, J. Nagarathna).
Proportionality and reasonableness

The Petitioners argued that the drastic measure of demonetisation, which

caused hardships to citizens, could have been avoided if the Government
adopted alternative measures that caused less hardship, and so, the
Demonetisation Notification was disproportionate to the aim it sought to
achieve (¶263). The Supreme Court held that the policy of demonetisation
fulfilled the test of proportionality (¶¶271-277) as there was a direct and
rationale nexus between the objectives sought to be achieved (curbing fake
currency and financing of terrorism to ensure India’s economic security) and
the measures taken (the demonetisation of ?500 and ?1,000 notes) (¶280).

The Petitioners had also argued that the time period provided to exchange the
demonetised bank notes for new ones was unreasonable (¶282). The Supreme
Court held that the fifty-two days (9 November 2016 to 30 December 2016)
that had been provided for the exchange of notes was not unreasonable
considering the case of Jayantilal Ratanchand Shah v. Reserve Bank of India
[(1996) 9 SCC 650]. In that case, the Supreme Court had upheld the
demonetisation of bank notes in 1978 where only three days were provided
for exchanging the demonetised notes (¶285) and noted that providing a
longer period would undermine the object of demonetisation (¶286). On this
basis, the Court held that the period of fifty-two days given in the 2016
Notification for exchange of demonetised notes was not unreasonable (¶288).
Independent powers of RBI under 2017 Act
It was also submitted by the Petitioners that the RBI had independent powers
under Section 4(2) of the Bank Notes Act to accept demonetised notes even
after the period specified in the 2016 Notification, provided that the reasons
for failure to deposit the notes were satisfactory (¶289). The Supreme Court,
however, read Section 4(2) in the context of Sections 3 and 4(1) of the Bank
Notes Act. Section 3 of the Act stated that the demonetised bank notes ceased
to have the guarantee of the Union Government and were no longer liabilities
of the RBI while Section 4(1) allowed for exchange of the demonetised bank
notes by citizens of India as well as other classes of persons as per conditions
specified by the Union Government (¶¶291-292). Thus, the Court held that
the Bank Notes Act was an integrated scheme (¶299) and any exchange of the
demonetised bank notes must follow the conditions specified by the Union
Government and that the RBI had no independent power to accept
demonetised notes (¶303).