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IMPORTANT SUPREME COURT VERDICTS OF MAY 2018

  • Should an anticipatory bail be for a limited period of time? Larger Bench to decide

[Sushila Aggarwal v. State (NCT of Delhi), SPECIAL LEAVE PETITION (CRIMINAL) NOS.7281-7282 OF 2017, decided on 15.05.2018]

Supreme Court: The 3-judge bench of Kurian Joseph, MM Shantanagoudan and Navin Sinha, JJ asked larger bench to authoritatively settle the following questions in a clear and unambiguous way:

Issues

  • Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.
  • Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.

The issue as to whether an anticipatory bail should be for a limited period of time was before the bench for consideration and it took note of the fact that there were conflicting views of the different Benches of varying strength on the said issue.

While the Constitution Bench verdict in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, holds that anticipatory bail should not be for a limited period, the 3-judge bench verdict in Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667, without referring to the aforementioned Constitution Bench verdict, holds that anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.

Amicus Curiae Harin P. Raval, hence, submitted before the Court that in the light of the two conflicting schools of thought the matter needs consideration by a larger Bench. According to him, even the Constitution Bench in Sibbia Case does not, in so many words, lay down a proposition that the protection of anticipatory bail is available to an accused till the conclusion of the trial.

The Court noticed that in Sibbia case, the Court has only briefly dealt with the question of duration of anticipatory bail and has not laid down the law that once an anticipatory bail, it is an anticipatory bail forever. Hence, the Bench referred the matter to a larger bench. [Sushila Aggarwal v. State (NCT of Delhi), SPECIAL LEAVE PETITION (CRIMINAL) NOS.7281-7282 OF 2017, decided on 15.05.2018]

 

  • Navjot Singh Sidhu not guilty of causing the death of Gurnam Singh in 30-year-old road rage case; Rs. 1000 fine imposed for voluntarily causing hurt

[Rupinder Singh Sandhu v. State of Punjab,  2018 SCC OnLine SC 526,  decided on 15.05.2018]

The bench of J. Chelameswar and SK Kaul, JJ held that Cricketer-turned-Politician Navjot Singh Sidhu cannot be held guilty for the death of one Gurnam Singh in the 30-year-old case wherein Sidhu got into a fight with the deceased over his right to way at a traffic light in Patiala. Sidhu had pulled the deceased out of his vehicle and inflicted fist blows. The incident eventually culminated in the death of Gurnam Singh. The Court, however, held that Sidhu had voluntarily caused hurt to Gurnam Singh punishable under Section 323 IPC.

On the plea of the complainant that in view of the celebrity status of Sidhu, the   State   went   out   of   its   way   to   shield   his   crime, the Court said:

“No doubt that there are lapses in the investigation. We cannot hazard a guess whether such lapses occurred because of the general inefficiency of the system or as a consequence of a concerted effort made to protect the accused.  The law of this country is not that people are convicted of offenses on the basis of doubts.”

The Court said that even if it is assumed that Sidhu admitted to his participation in the occurrence, in the light of the medical evidence on record, he cannot be held guilty of causing the death of Gurnam Singh.

Regarding the appropriate punishment, the Court said though Section 323 IPC stipulates a punishment   of   imprisonment   of   either   description   for   a   term which may extend to one year or with fine which may extend to Rs.1000/­ or with both, in the circumstances of the case having regard to the facts that

  • the incident is 30 years old;
  • (ii) there is no past enmity between the accused and the deceased;
  • (iii) no weapon was used by the accused; and
  • (iv) the background in which   it   happened,

a punishment of imposition of a fine of Rs.1000/­ would meet the ends of justice in this case. [Rupinder Singh Sandhu v. State of Punjab,  2018 SCC OnLine SC 526,  decided on 15.05.2018]

 

  • Not necessary that every eyewitness who had seen the accused hit the victim should also receive injuries to prove an offense: SC

[Khurshid Ahmed v. State of Jammu and Kashmir, CRIMINAL APPEAL NO. 872 OF 2015, decided on 15.05.2018]

Explaining the law on the credibility of the testimony of an interested eye-witness, the bench of NV Ramana and SA Nazeer, JJ held:

“If the evidence of an eyewitness, though a close relative of the victim, inspires confidence, it must be relied upon without seeking corroboration with minute material particulars. It is no doubt true that the Courts must be cautious while considering the evidence of interested witnesses.”

The Court was hearing the appeal of a man who was accused of abusing and attacking a shopkeeper with iron rod who was heading home in the evening with his father. The shopkeeper later succumbed to the injuries on his head. The accused had assaulted the deceased after a prior tussle between them during the daytime at the shop of the deceased over a financial transaction. One iron rod being the weapon of assault was also recovered at the instance of the accused.

The father of the deceased was the sole eye-witness in the case and the, therefore, the entire case depended upon the veracity of his testimony. The accused, hence, argued that he was an interested witness and hence, his testimony can be relied on. He also argued that if the eyewitness was present at the time of the incident then why didn’t he receive any injury? To this, the Court answered:

 “It is not necessary that to prove an offense, every eyewitness who had seen the accused hitting the victim should also receive injuries.”

The Court, hence, calling the father of the deceased a ‘natural’ witness to the incident, noticed that the chain of events and the circumstantial evidence thereof completely supports the eyewitness’s statements which in turn strengthens the prosecution case with no manner of doubt.

As a word of caution for the courts, the bench said:

“When analyzing the evidence available on record, Court should not adopt hyper-technical approach but should look at the broader probabilities of the case. (…)  Particularly in the criminal cases, from the date of incident till the day they give evidence in the Court, there may be the gap of years. Hence the Courts have to take all these aspects into consideration and weigh the evidence. The discrepancies and contradictions which do not go to the root of the matter, credence shall not be given to them. In any event, the paramount consideration of the Court must be to do substantial justice.”

[Khurshid Ahmed v. State of Jammu and Kashmir, CRIMINAL APPEAL NO. 872 OF 2015, decided on 15.05.2018]

  • Judges of Fast Track courts can’t be denied pensionary & other retiral benefits: SC

[Mahesh Chandra Verma v. State of Jharkhand, 2018 SCC OnLine SC 520, decided on 11.05.2018]

Issue:

Whether the services rendered by some Judicial Officers as Fast Track court Judges is liable to be counted for their pensionary and other benefits?

The bench of J. Chelameswar and SK Kaul, JJ answered the question in affirmative and said:

“The appellants were not appointed to the Fast Track courts just at the whim and fancy of any person but were the next in line on the merit list of a judicial recruitment process. They were either part of the select list, who could not find a place given the cadre strength, or those next in line in the select list. Had there been adequate cadre strength, the recruitment process would have resulted in their appointment.”

Noticing that the judges have rendered services over a period of nine years and have performed their role as Judges to the satisfaction, otherwise, there would have been no occasion for their appointment to the regular cadre strength, the bench said:

“it is a matter of great regret that these appellants who have performed the functions of a Judge to the satisfaction of the competent authorities should be deprived of their pension and retiral benefits for this period of service.”

The Court took note of the fact that the Fast Track Court Scheme was brought in to deal with the exigency and the appellants were appointed to the Fast Track courts and continued to work for almost a decade. It was also noted that the appellants were part of the initial select list/merit list for recruitment to the regular cadre strength but were not high enough to be recruited in the existing strength. Even at the stage of absorption in the regular cadre strength, they had to go through a defined process in pursuance of the judgment of this court and have continued to work thereafter

It was, hence,

 Held

“the methodology of non-creation of adequate regular cadre posts and the consequent establishment of Fast Track courts manned by the appellants cannot be used as a ruse to deny the dues of the appellants.”

[Mahesh Chandra Verma v. State of Jharkhand, 2018 SCC OnLine SC 520, decided on 11.05.2018]

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  • Parliamentary Committee Report can be taken judicial notice of but it’s validity can’t be questioned: SC

[Kalpana Mehta v. Union of India,  2018 SCC OnLine SC 512, decided on 09.05.2018]

The 5-judge Constitution Bench of Dipak Misra, CJ and AM Khanwilkar, Dr. DY Chandrachud, Dr. AK Sikri and Ashok Bhushan, JJ held:

“Parliamentary Standing Committee Report or any Parliamentary Committee Report can be taken judicial notice of and regarded as admissible in evidence, but it can neither be impinged nor challenged nor its validity can be called in question.”

CJI, writing for himself and Khanwilkar, J said:

“The Constitution itself being a dynamic, lively and ever-changing document adapts to the paradigm of epochs. That being the situation, it is also for this Court to take a fresh look and mold the existing precepts to suit the new emerging situations.”

He further concluded:

  • Where the fact is contentious, the petitioner can always collect the facts from many a source and produce such facts by way of affidavits, and the Court can render its verdict by way of independent adjudication.
  • The Parliamentary Standing Committee report being in the public domain can invite fair comments and criticism from the citizens as in such a situation, the citizens do not really comment upon any member of the Parliament to invite the hazard of violation of parliamentary privilege.

Chandrachud, J, writing for himself and Sikri, J said:

“As a matter of principle, there is no reason or justification to exclude the report of a Parliamentary Standing Committee from the purview of the judicial process, for purposes such as understanding the historical background of a law, the nature of the problem, the causes of a social evil and the remedies which may provide answers to intractable problems of governance.”

He, however, added that no Member of Parliament or person can be made liable for what is stated in the course of the proceedings before a Parliamentary Committee or for a vote tendered or given.

Bhushan, J, in his detailed judgment explained that the Parliamentary Committee Reports cannot be treated as conclusive or binding of what has been concluded in the Report. He said:

“By acceptance of a Parliamentary Committee Report in evidence does not mean that facts stated in the Report stand proved. When issues, facts come before a Court of law for adjudication, the Court is to decide the issues on the basis of evidence and materials brought before it and in which adjudication Parliamentary Committee Report may only be one of the materials, what weight has to be given to one or other evidence   is   the   adjudicatory   function   of   the   Court which may differ from case to case.”

[Kalpana Mehta v. Union of India,  2018 SCC OnLine SC 512, decided on 09.05.2018]

 

  • Central Govt’s approval necessary for reservation of lands under Mines & Minerals Act for State Govt owned & controlled companies & corporations: SC

[Geomysore Services (I) Pvt. Ltd.v. Hutti Goldmines Co. Ltd., 2018 SCC OnLine SC 503, decided on 08.05.2018]

In the case where the role and power of the Central Government while dealing with the request of a State Government for reservation of lands for government companies or corporations owned and controlled by the State Government under Section 17A(2) of the Mines and Minerals (Development and Regulations) Act, 1957 was in question, the Bench of Madan B. Lokur and Deepak Gupta, JJ held

“The State Government being the owner of the land and minerals, has a right to make a proposal to the Central Government to reserve lands not held under a prospecting license or mining lease for exploitation by the State Government companies or undertakings but approval of the Central Government is necessary.”

The Court further clarified that each case has to be decided on its own merits and that the Central Government cannot be bound by any specific parameters. However, the Central Government can not only take into consideration factors of national security or public interest but also economic factors, the policy of the Government and all such other factors which are relevant to decide the issue whether the land should be reserved for exploitation only by State Government Undertakings;

Regarding the question as to the scope of applicability of Section 11(1) and Section 17A(2) of the Act and the effect of the right of preference granted to Reconnaissance Permit holder in terms of Section 11(1) of the Act while dealing with a matter under Section 17A(2) of the Act, the Court held that  Section 11(1) and Section 17A(2) of the Act have no connection with each other. Section 11(1) of the Act deals with preference to be given to Reconnaissance Permit holder and Prospecting Licence holder while considering their case for grant of Prospecting Licence and Mining Lease respectively. This has nothing to do with reservation of land under Section 17A(2) of the Act. The only connection, if it can be called that, is that if a land is held under a Prospecting Licence or Mining Lease, then action under Section 17A(2) of the Act cannot even be initiated. [Geomysore Services (I) Pvt. Ltd.v. Hutti Goldmines Co. Ltd., 2018 SCC OnLine SC 503, decided on 08.05.2018]

 

  • Tribunals shouldn’t be heaven for retired persons; Proper recruitment process should be followed: SC constitutes a committee

[Roger Mathew v. South Indian Bank Limited,  2018 SCC OnLine SC 500, order dated 07.05.2018]

Acknowledging the need of having an effective and autonomous oversight body for all the Tribunals, the bench of AK Goel and Indu Malhotra, JJ called for urgent setting up of a committee, preferably of three members, one of whom must be retired judge of this Court who may be served in a Tribunal. The Court said that such body should be responsible for recruitments and oversight of functioning of members of the Tribunals.

During the course of the hearing, it was brought to the Court’s notice that appointment, norms, and functioning of Debt Recovery Tribunals were not consistent with the observations of this Court in various judgments and hence, restructuring of Tribunals and especially the creation of a regular cadre to man the Tribunals was necessary.

Amicus Curiae Arvind P. Datar suggested setting up of all India Tribunal service on the pattern of U.K.  and said that the members can be drawn either from the serving officers in Higher Judicial Service or directly recruited with appropriate qualifications by national competition. He also submitted a Concept Note before the Court in which he suggested:

“The Tribunals should not be heaven for retired persons and appointment process should not result in decisions being influenced if the Government itself is a litigant and the appointing authority at the same time. There should be the restriction on acceptance of any employment after retirement.”

The Court, hence, summed up the following issues for the consideration of the committee:

  • Creation of a regular cadre laying down eligibility for recruitment for Tribunals;
  • Setting up of an autonomous oversight body for recruitment and overseeing the performance and discipline of the members so recruited and other issues relating thereto;
  • Amending the scheme of direct appeals to this Court so that the orders of Tribunals are subject to the jurisdiction of the High Courts;
  • Making Benches of Tribunals accessible to the common man at convenient locations instead of having only one location at Delhi or elsewhere. In the alternative, conferring jurisdiction on existing courts as special Courts or Tribunals.

The Court directed that the Committee can have interaction with all stakeholders and suggest a mechanism in a time-bound manner, consistent with the constitutional scheme as interpreted by this Court in several decisions and also in the light of recommendations of expert bodies.

The Court will next take up the matter on 10.05.2018. [Roger Mathew v. South Indian Bank Limited,  2018 SCC OnLine SC 500, order dated 07.05.2018]

  • SC transfers Kathua Rape-Murder Case trial to Pathankot Court; In-camera proceedings to take place on the day-to-day basis

[Mohd. Akhtar v. State of Jammu & Kashmir, 2018 SCC OnLine SC 494, order dated 07.05.2018]

Taking note of the seriousness of the issue relating to the abduction, rape and murder of an eight-year-old girl in Kathua District of J&K in the month of January, the bench of 3-judge bench of Dipak Misra, CJ and Dr. DY Chandrachud and Indu Malhotra, JJ transferred the trial of the matter from the District & Sessions Judge, Kathua to the District & Sessions Judge, Pathankot situate in the State of Punjab.

Senior Advocate Indira Jaising, appearing for the family of the victim, had argued before the Court that since there have been some unwarranted situations that have occurred in and outside the Kathua Bar Association, the locality in question, the involvement of many groups and various other aspects, a fair trial was not possible at Kathua.

Stating that a fair trial is a sacrosanct principle under Article 21 of the Constitution of India and a ‘fair trial’ means fair to the accused persons, as well as to the victims of the crime, the Court issued the following directions while transferring the matter to Pathankot:

  • The learned District & Sessions Judge, Pathankot shall himself take up the trial and not assign it to any Additional Sessions Judge;
  • The learned District & Sessions Judge, Pathankot shall fast-track the trial and take it up on the day-to-day basis so that there is no delay in a trial;
  • The examination-in-chief and the cross-examination of witnesses shall be in a continuous manner and for no reasons whatsoever the same shall be deferred;
  • The trial shall be held in camera so that the witnesses feel protected and the accused persons feel safe;
  • As this Court is monitoring the matter, no court shall entertain any petition pertaining to this case; The transferee court shall proceed under the Ranbir Penal Code as that applies to the State of Jammu & Kashmir;
  • The statements of the witnesses that have been recorded in the Urdu language shall be translated into English so that the transferee court does not face any difficulty in conducting the trial;
  • The State of Jammu & Kashmir shall provide the requisite number of interpreters as directed by the learned District & Sessions Judge, Pathankot so that the deposition of the witnesses can be properly recorded and translated copies thereof can be provided to the accused persons;
  • It shall be the duty of the State of Jammu & Kashmir to transport the witnesses to Pathankot and provide all other necessary facilities, including food, etc. so that the witnesses do not face any difficulty;
  • The accused persons shall also be similarly treated so that they do not feel that solely because they are accused persons, they are presumed to be guilty, for it is the settled principle that they are innocent till they are found guilty;
  • The State of Jammu & Kashmir is granted liberty to appoint the Public Prosecutor for a prosecution of the case;
  • The juvenile, who is facing the trial, shall be dealt with in accordance with law and he should be given all special care and protection as per the command of the law.

Emphasising on the concept of the fair trial, the Court said:

“In the instant case, direct victims are the family members of the deceased, although ultimately collective is the victim of such crime. The fair trial commands that there has to be the free atmosphere where the victims, the accused and the witnesses feel safe. They must not suffer from any kind of phobia while attending the court. Fear and fair trial are contradictory in terms and they cannot be allowed to co-exist.”

The Court also reiterated that the protection granted by it to victim’s family & lawyers via order dated 16th April 2018, shall continue and shall not be varied till the trial is over.

[Mohd. Akhtar v. State of Jammu & Kashmir, 2018 SCC OnLine SC 494, order dated 07.05.2018]

 

  • 20-year-old woman free to live with underage husband; Couple has the right to live together even outside wedlock: SC

 [Nandakumar v. State of Kerala, 2018 SCC OnLine SC 492, decided on 20.04.2018]

In a unique case where a 19-year-old girl Thushara, who had married a 19-year-old boy Nandakumar on 12.04.2017, was sent to the custody of her father by the Kerala High Court on the ground that Thushara was not lawfully wedded to Nadakumar as Nandakumar was not of a marriageable age the bench of Dr. AK Sikri and Ashok Bhushan, JJ removed Thushara from the custody of her father & held that the freedom of choice would be of Thushara as to with whom she wants to live.

The present case holds strong similarities to the Hadiya case, where a father had sought the custody of his major daughter as she had married a man of her choice. In the present case as well, Thushara’s father had alleged that she was in the illegal custody of Nandakumar and hence, her custody should be entrusted to her. The High Court noticed the fact that Nandakumar will be attaining the marriageable age of 21 years on 30.05.2018 & hence, Thushara was not lawfully wedded wife. The High Court also remarked that apart from the photographs of marriage which were produced in the High Court, there was no evidence to show that a valid marriage was solemnized between the parties. Hence, the custody of Thushara, who was already a major when she married Nandakumar, was entrusted to her father.

When Nandakumar approached the Supreme Court against the order of the High Court, the Court noticed that merely because Nandakumar was less than 21 years of age, it cannot be said that marriage between the parties is null and void. The Court said that both the parties are Hindus and such a marriage is not a void marriage under the Hindu Marriage Act, 1955, and as per the provisions of section 12, which can be attracted in such a case, at the most, the marriage would be a voidable marriage.

Noticing that both the parties were major at the time of marriage, the Court said:

“Even if they were not competent to enter into wedlock (which position itself is disputed), they have right to live together even outside of wedlock. It would not be out of place to mention that ‘live-in relationship’ is now recognized by the Legislature itself which has found its place under the provisions of the Protection of Women from Domestic Violence Act, 2005.”

The Court also took note of the 3-judge bench verdict in Shafin Jahan v. Asokan K.M. & Ors.’ [2018 SCC Online SC 343, wherein it was held:

“It needs no special emphasis to state that attaining the age of majority in an individual’s life has its own significance. She/He is entitled to make her/his choice. The courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation.”

[Nandakumar v. State of Kerala, 2018 SCC OnLine SC 492, decided on 20.04.2018]

 

  • Former Chief Ministers not entitled to Govt. Accommodation; UP Law unconstitutional: SC

Striking down Section 4(3) of the Uttar Pradesh Ministers (Salaries, Allowances, and Miscellaneous Provisions) Act, 1981, as amended in 2016, the bench of Ranjan Gogoi and R. Banumathi, JJ held:

“The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality.”

State of Uttar Pradesh had argued before the Court that the infringement of the equality clause under Article 14 of the Constitution of India is a far cry as there is an intelligible differentia to justify a separate and exclusive treatment to former Chief Ministers who form a class of their own.

The Court, however, held that the allocation of government bungalows to constitutional functionaries enumerated in Section 4(3) of the 1981 Act after such functionaries demit public office(s) would be clearly subject to judicial review on the touchstone of Article 14 of the Constitution of India. The Court said:

“such bungalows constitute public property which by itself is scarce and meant for use of current holders of public offices.”

Holding that Section 4(3) of the 1981 Act recognizing former holders of public office as a special class of citizens is arbitrary and discriminatory, the Court said:

“Undoubtedly, Section 4(3) of the 1981 Act would have the effect of creating a separate class of citizens for conferment of benefits by way of distribution of public property on the basis of the previous public office held by them. Once such persons demit the public office earlier held by them there is nothing to distinguish them from the common man. The public office held by them becomes a matter of history and, therefore, cannot form the basis of a reasonable classification to categorize previous holders of public office as a special category of persons entitled to the benefit of special privileges.”

Background of the case:

  • Former Chief Ministers of the State of Uttar Pradesh continued to occupy their official accommodation even after demitting office, in clear breach of Section 4 of the 1981 Act.
  • Lok Prahari filed a writ petition before the High Court of Allahabad.
  1. Ex-Chief Ministers Residence Allotment Rules, 1997 framed during the pendency of the petition to provide for the allotment of government accommodation to former Chief Ministers.
  • Petition amended to challenge the validity of the provisions of the 1997 Rules.
  • Petition closed by the High Court upon a statement made by the State of Uttar Pradesh that former Chief Ministers would be henceforth allotted only Type V bungalows and that too on payment of rent etc.
  • Section 4 of the 1981 Act was amended in the year 2016. Under Section 4(3) brought in by the 2016 Amendment, former Chief Ministers of the State became entitled to an allotment of government accommodation for their lifetime.
  • Amendment challenged before the Supreme Court.
  • Section 4(3) of the Uttar Pradesh Ministers (Salaries, Allowances, and Miscellaneous Provisions) Act, 1981, as amended in 2016 held unconstitutionally

[Lok Prahari v. State of Uttar Pradesh,  2018 SCC OnLine SC 491, decided on 07.05.2018]

 

  • Stop imposing arbitrary conditions on schools for obtaining affiliation: SC to Kerala Govt.

[State of Kerala v. Mythri Vidya Bhavan English M. Sch.,  2018 SCC OnLine SC 481, decided on 02.05.2018]

Rebuking the State of Kerala seeking to impose its authority over schools that provide apparently quality education, the bench of Madan B. Lokur and Deepak Gupta, JJ said:

“The fundamental right to free and compulsory education to all children between the age of 6 and 14 years postulates good quality education and not just education for the sake of providing education. Regulation of such education is permissible by law and not by executive fiat.”

The Court was hearing the issue pertaining to guidelines issued by the State to the schools seeking affiliation. The guidelines stipulated the requirement of minimum 3 acres of land and a minimum 300 enrolled students for obtaining NOC for affiliation.

The requirement of minimum 3 acres of land:

State of Kerala: A school seeking a NOC for affiliation to the CBSE must have 3 acres of land out of which 2 acres should be contiguous and in the actual location of the school.

Court: According to the CBSE Bye-Laws, the minimum land requirement varies from location to location. In metropolitan and capital cities as well as in hilly areas, it would be difficult to get 3 acres of land or even 2 acres of land. Similarly, due to the terrain, it would perhaps be difficult to get adequate land in the North Eastern region of the country as well as in Jammu & Kashmir. This realism deserves to be contrasted with the non-realistic inflexibility of Kerala which too has some hilly areas where perhaps it might be difficult to find 3 acres of land.

“It appears to us that the rigid requirement of Kerala indicates that it is imposed upon the schools that seek affiliation with the CBSE only with a view to unnecessarily burdening them with an onerous and arbitrary condition since Kerala believes it has the authority to do so.”

The requirement of minimum enrolment of 300 students:

State of Kerala: If a school does not have a minimum of 300 students, it would be difficult for that school to pay the required wages of the staff and the teachers except by charging exorbitant fees.

Court: There is no material on record to substantiate such a conclusion and it is based merely on the ipse dixit of the State.

“We do not see how, if the number of students is less than 300, it will detract from the quality of education imparted to the students. In other words, the requirement of a minimum strength of 300 students is a completely arbitrary figure arrived at by Kerala and which has no rational nexus with quality education or the CBSE Affiliation Bye-laws.”

A requirement of compulsory Aadhaar for enrolment of students:

The Court left the issue open to await the decision of Constitution Bench in the ongoing Aadhaar matter.

[State of Kerala v. Mythri Vidya Bhavan English M. Sch.,  2018 SCC OnLine SC 481, decided on 02.05.2018]

 

  • Centre’s decision of not making IPS appointments pursuant to Limited Competitive Examination held in 2012, valid

[Lt. CDR M. Ramesh v. Union of India, 2018 SCC OnLine SC 393, decided on 17.04.2018]

Holding that the decision taken by the Union of India not to make appointments to the Indian Police Service (IPS) pursuant to the Limited Competitive Examination (LCE) which took place from 20.05.2012 to 22.05.2012, is legal and valid, the 3-judge bench of Madan B. Lokur, Kurian Joseph and Deepak Gupta, JJ said:

“the decision to scrap the LCE recruitment has been taken in the larger public interest. The decision is definitely not mala fide. It is not actuated by extraneous reasons.”

The reasons given by the Government to support its decision were:

  • percentage of vacancies has gone down;
  • the selection process has been delayed by many years which will mean that the persons selected will be at least 5 years older than as expected;
  • many petitions are still pending and the matter has not been finally decided, which could lead to further delay; and
  • it is apprehended that there would be a surfeit of litigation between candidates, if any, appointed through LCE and those who are recruited by direct recruitment or promotion during the years 2012 to 2018.

The Court noticed that it is the combined effect of all the grounds which will have to be taken into consideration. There is no manner of doubt that it was expected that the result would be declared in the year 2013 and the officers would be sent for training in the same year.

The Court said:

“The officers, who may have been selected in the year 2013 at the upper age limit of 35 years or 36 years would now be 5 years older. No doubt, they are members of the State Police Service or the Central Police Organisation, but their induction or recruitment in the IPS is delayed by more than 5 years. When the Government laid down a policy that upper age limit was 35 years, it must have had some reason for fixing the upper age limit. That purpose is now defeated.”

The Court also said that if the Union is compelled to make the appointments, this will lead to a plethora of litigation where the persons recruited to the IPS between 2013 and 2018 will claim seniority over the persons, who appear in the LCE. It said that such litigation would not be in public good and will achieve no higher purpose.

The Court, hence, held:

“When we examine the decision taken by the Central Government in a holistic manner, we have no doubt that the decision to scrap the LCE recruitment has been taken in the larger public interest.”

[Lt. CDR M. Ramesh v. Union of India, 2018 SCC OnLine SC 393, decided on 17.04.2018]

 

  • Supreme Court dismisses the petition seeking SIT probe in Judge Loya’s death

  • [Tehseen Poonawalla v. Union of India,  2018 SCC OnLine SC 400, decided on 19.04.2018]

The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar, and Dr. DY Chandrachud, JJ dismissed the petitions seeking the Special Investigation Team (SIT) probe into Special Central Bureau of Investigation (CBI) Judge B.H. Loya’s death case. While doing so, the Court said:

“there is absolutely no merit in the writ petitions. There is no reason for the court to doubt the clear and consistent statements of the four judicial officers. The documentary material on the record indicates that the death of Judge Loya was due to natural causes. There is no ground for the court to hold that there was a reasonable suspicion about the cause or circumstances of death which would merit a further inquiry.”

The sequence of events leading to the present case are:

  • Judge Loya was presiding over the CBI Special Court in Mumbai in the trial arising out of the encounter killings of Sohrabuddin Sheikh in which Amit Shah, the national President of the Bharatiya Janata Party, was one of the accused.
  • On 29 November 2014 Judge Loya traveled to Nagpur with two other judicial officers, Shrikant and SM Modak to attend the wedding in the family of another judicial officer, Swapna Joshi who was then a Member Secretary of the Maharashtra State Legal Services Authority.
  • In the early hours of 1 December 2014, Judge Loya complained of chest pain and was taken to a nearby hospital. He was then referred to Meditrina Hospital, a cardiac care facility, where he was declared “brought dead”.
  • On 11 December 2017, Tehseen Poonawalla filed a petition under Article 32 of the Constitution before the Supreme Court seeking SIT probe into Judge Loya’s death.
  • Jayshri Laxmanrao Patil and another by Bandhuraj Sambhaji Lone also filed petitions on the same issue.
  • On 20 and 21 November 2017, articles on his death were published in the issues of Caravan magazine. The first article was titled “A family breaks its silence: shocking details emerge in death of judge presiding over Sohrabuddin trial”.

Cause of Death:

The summary of the post-mortem report records that Judge Loya died due to a heart attack. No complaint has been lodged by his relatives at the local police station or at PS Sadar of any suspicion in regard to the cause of death and the medical officer has recorded the cause of death as a heart attack in the PM report and there was no evidence of assault.

Statements of the 4 judges:

Petitioner’s submission: the procedure of obtaining the permission of the Chief Justice was completed within one day and the statements were submitted by the four judges on the next day. Two of the judges (Judge Shrikant Kulkarni and Judge Barde) were based in Mumbai while the other two (Judge Modak and Judge Rathi) were based at Pune and Baramati.

Court:

  • A discreet inquiry had been ordered by the state government in view of the articles which were published in Caravan regarding the death of a judicial officer. Three of the statements specifically refer to the letter to the Commissioner while the fourth refers to the request which has been made by the Commissioner and the permission which has been granted by the High Court. There was no reason for the four judicial officers to procrastinate or delay the submission of their statements. There is no basis whatsoever to make any imputation against the four officers of the state judiciary.
  • Each of the judges has spoken in detail of the facts and events which were within their personal knowledge. The statements contain matters of detail which would be known to those who were present with Judge Loya. They have a ring of truth.

Petitioner’s Submission: if the four judges had accompanied Judge Loya to the hospital, then as colleagues they would not have indicated his name to be Brijmohan instead of Brijgopal.

Court: This is but another attempt to cast doubt on the version of the four judicial officers without a substantive basis or foundation. Judge Loya was taken to hospital in an emergency. The normal course of human events would indicate that his four colleagues would be more concerned about getting Judge Loya attended than filling up an admission form. A mistake did occur in recording his name as Brijmohan instead of Brijgopal. In our view, this cannot be a ground to discredit the detailed factual narration made by the four judicial officers who were with him.

Stating that the conduct of the petitioners and the intervenors is lacking in bona fides and reveals a misuse of judicial process, the Court said:

“An aura of good faith has been sought to be created by submitting that the true purpose of seeking an inquiry into the circumstances relating to the death of Judge Loya is to protect the district judiciary. But as the submissions have evolved, it has become clear that the petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions. Judicial review is a potent weapon to preserve the rule of law. However, here we have been confronted with a spate of scurrilous allegations. Absent any title of proof that they are conspirators in a murder the court must stand by the statements of the judicial officers. The judges of the district judiciary are vulnerable to wanton attacks on their independence. This court would be failing in its duty if it were not to stand by them.”

[Tehseen Poonawalla v. Union of India,  2018 SCC OnLine SC 400, decided on 19.04.2018]

  • Centre to submit the detailed report on Central Reporting Mechanism for cybercrimes relating to rape, child pornography, etc

Considering the need for establishing a Central Reporting Mechanism in matters relating to cybercrimes concerning particularly those relating to rape, gang rape, child pornography, etc, the bench of Madan B. Lokur and UU Lalit, JJ asked the Ministry of Home Affairs to submit a comprehensive and detailed status report on progress made on the roadmap already indicated by the Government in the affidavit dated 1st December, 2015.

The Ministry of Home Affairs had submitted a brief status report that showed that the Government had committed itself to open the Beta version of the portal for online cybercrime reporting and that the public launch of the Beta version is expected in the last week of April 2018.

It was also submitted before the Court that there are several other Ministries that are interested in similar issues such as Ministry of Women and Child Development. The Ministry of Electronics, Information and Technology are also interested in taking corrective steps in so far as cybercrimes are concerned particularly those relating to rape/gang rape/child pornography.

The Court, hence, said:

“It would, of course, be in the interest of all concerned if the Central Reporting Mechanism is set up.”

The Ministry of Home Affairs has been asked to file the detailed status report on the next date of hearing i.e. 11.05.2018. [In re: Prajwala Letter dated 18.2.2015 Videos of Sexual Violence and Recommendations, 2018 SCC OnLine SC 389, order dated 16.04.2018]

Material taken from SCC Newsletter

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