Law-in-Perspective

10 leading Supreme Court decisions in March 2020

noreply@blogger.com (Unknown) — Sun, 29 Mar 2020 06:26:00 +0530

In the wake of the health crisis, all major institutions, including the Supreme Court, have shut down. We took this opportunity to get our act together and bring to you some premium content. Going in reverse order, we have cataloged 10 major decisions of the Supreme Court handed out in March 2020 in this post.

(1) Right to Information - Is is not pervasive

In the case of Chief Information Commissioner v. High Court of Gujarat the Supreme Court (three-judge bench) has declared that every inconsistency between the RTI law and any other law as regards supply of information is not fatal. Therefore upholding the rules governing supply of information adopted by the High Court of Gujarat, the Supreme Court has opined that the High Court can imposed additional conditions for furnishing the information. In particular, the condition under the High Court Rules for filing affidavit and giving reasons as to why the information is required which, thought contrary to the RTI Act, has been upheld by the Supreme Court. The Supreme Court has also upheld the exclusion of the RTI Act, under the High Court rules, to the copies of judicial work of the High Court and the same can be sought only under the High Court rules and not under the RTI. [Civil Appeal No. 1966-1967/2020 dated 04.03.2020]

(2) Workers are also 'consumers' of Government Schemes

In this path breaking decision in the case of Joint Labour Commissioner and Registering Officer v. Kesar Lal the Supreme Court has expanded the scope of consumer laws to hold that even a worker who is denied benefit of Government schemes can successfully bring a case under the Consumer Protection Act, 1986. In this case the Respondent Worker had applied for grants under the Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996 for purpose of his daughter's marriage. This was rejected by the Officer of the Rajasthan Government citing that the paperwork was not complete and formalities were not complied. The worker complained against this rejection under the consumer law and this came was finally upheld by the Supreme Court. [Civil Appeal No. 2014/2020 dated 17.03.2020]

(3) Proceedings for removal of 'probationer' not entitled to strict judicial review compared to confirmed employees

In the case of Rajasthan High Court v. Ved Priya the Supreme Court was concerned with correctness of view of the High Court (on its administrative side) which has removed the Respondent probationer from services as a judge of the lower court. This proceeding was challenged by way of writ petition before the High Court. The Supreme Court in this decision exhaustively surveyed the earlier decisions regarding the right of probationers to be confirmed and the corresponding right of the employer to remove the probationers. Upholding the removal, the Supreme Court specifically observed that unsatisfactory performance is sufficient for removal in such cases and there is no necessity for a full-fledged inquiry at the end of probation period. [Civil Appeal No. 8933-8934/2017 dated 18.03.2020]

(4) Pension available even for employees who have opted for VRS scheme

Deciding the disputed question (on which even the earlier benches of the Supreme Court has a conflicting view), a three-judge bench of the Supreme Court in Assistant General Manager, State Bank of India v. Radhey Shyam Pandey has declared that even those employees opted for the Bank's Voluntary Retirement Scheme after 15 years are entitled to pension. The Court specifically concluded that the action of the Bank in denying the benefit of the pension scheme was unfair in this case and it should have considered its social obligation to its past employees as well. [Civil Appeal No. 2463/2015 dated 02.03.2020]

(5) Limitation period for execution of foreign decree has to be adopted from the foreign country

There is no limitation period under the Indian law for execution of a foreign decree. In this background in the case of Bank of Baroda v. Kotak Mahindra Bank Ltd. the Supreme Court has concluded that the limitation period for execution of foreign decree in the host country will apply even in India. For example if a decree of UK can be executed in UK only within 6 years, the same decree when sought to be executed in India, can also be executed within 6 years and after that it will be barred by limitation. The Supreme Court held that any other limitation period will imply that when the decree cannot be originally executed in its own country, it can still be executed in India, which will be an anamalous situation and cannot be accepted. [Civil Appeal No. 2175/2020 dated 17.03.2020]

(6) 5-judge bench clarifies the law on Land Acquisition

In 2013 a new land acquisition law replaced the earlier law of 1894. This 2013 law made specific provisions was lapse of a land acquisition i.e. situations where land cannot be acquired due to non-completion of conditions within the stipulated period. There were multiple proceedings before various High Courts in the country and also there were many contrary opinions in the Supreme Court itself on when do these conditions get satisfied. A five judge bench of the Supreme Court in the case of Indore Development Authority v. Manoharlal has declared the final position. This is a detailed decision running into over 300 pages with clear set of conclusions towards the end. [SLP(C) No. 9036-9038/2016 dated 06.03.2020]

(7) Same expression can have different meaning under different laws

Can the same term mean differently when used in different laws. The Supreme Court has answered in the affirmative. In the case of Commissioner of Central Excise, Nagpur v. Universal Ferro & Allied Chemicals Ltd. the Supreme Court considered the provisions of Central Excise Act, 1944 where the expression 'sale' is defined to cover a mere transfer of possession of goods in the course of business. Holding that it was possible for the law-makers to give a different definition which was contrary to the general meaning of the expression and once such a different definition was used, the meaning under this definition was to be applied. In other words, the general meaning of the expression 'sale' was not relevant. [Civil Appeal No. 848-852/2009 dated 06.03.2020]

(8) Obligation of the vehicle owner for insurance claim purposes

In the case of Nirmala Kothari v. United India Insurance Co. Ltd. the Supreme Court has held that it is the obligation of the insured to verify the driving licence of the person to whom the vehicle is being given. If the driving licence looks genuine, that obligation is complete. There is no obligation to take up the matter with the RTO to seek confirmation. In such cases, the Insurance Company has to give the insurance claim and it cannot deny the liability even if the licence later turns out to be forged. [Civil Appeal No. 1999-2000/2020 dated 04.03.2020]

(9) RBI Ban on crypto-currency set aside.

The Supreme Court in the case of Internet and Mobile Association of India v. Reserve Bank of India has quashed the ban imposed by the RBI on crypto-currencies. Taking note of the legal position outside India and the fast changes happening elsewhere, according to the Supreme Court the decision of the RBI was disproportionate and unreasonable making it vulnerable to constitutional stipulations. [Writ Petition (Civil) No. 528/2018 dated 04.03.2020]

(10) Anyone can work as an architect.

Holding that there is no legal requirement to get registered with Council of Architecture, the Supreme Court in the case of Council of Architecture v. Mukesh Goyal has held that the law only prohibits an unregistered individual from using the title of 'architect'. [Civil Appeal No. 1819/2020 dated 17.03.2020]

New Book: Goods And Services Tax - Constitutional Law and Policy

noreply@blogger.com (Unknown) — Fri, 25 May 2018 19:12:00 +0530

Dear Readers,

At the outset I must thank you all for your esteemed patronage of this blog. What had started as a humble experiment will grow into such a huge family was much beyond my initial estimate.

You would pardon me for the long delay in the posts. However that was on account of various professional commitments of mine. In particular, and I am pleased to inform this to you, perhaps the biggest engagement of mine in near past has successfully come through.

Titled as 'Goods and Services Tax: Constitutional Law and Policy', my book has been published by leading law book publisher of India i.e. the Eastern Book Company.

Besides being dedicated to the appraisal of the Constitutional Amendment Act which set the constitutional background for ushering Goods and Services Tax in India, one entire part of the book focuses on examination of the concepts upon which GST in India is based.

The forward has been written by Justice S.B. Sinha (former judge, Supreme Court of India) and the book has been pre-reviewed by various Senior Advocates including the Attorney General of India.

The other details are available at https://www.ebcwebstore.com/product_info.php?products_id=99022062. I hope the contents of the book will find your approval and as usual I will get your esteemed patronage for this recent endeavour.

Lawyer not liable for 'professional misconduct' unless 'gross negligence': Supreme Court

noreply@blogger.com (Unknown) — Mon, 20 Feb 2017 16:13:00 +0530

Holding that 'human errors' are possible even by lawyers, the Supreme Court in a recent decision has declared that a lawyer cannot be hauled up for professional misconduct only on account of negligence unless it is shown that the error was a 'gross negligence' in his actions. While acknowleding that "nobility, sanctity and ethicality of the profession has to be kept uppermost in the mind of an Advocate", the Supreme Court declared the legal position on the yard-stick to be followed for adjudging the actions of a lawyer and whether they were beyond the permissible boundaries.

In its decision entitled T.A. Kathiru Kunju v. Jacob Mathai - Civil Appeal No. 3860 of 2007, decision dated 16.02.2017 the Supreme Court was dealing with the correctness of the action taken by the Bar Council (the regulatory body of lawyers in India) in holding a lawyer"guilty of gross negligence in discharge of his professional service to the client and accordingly imposed the punishment of reprimand" and a fine. The facts leading to this punishment were that the lawyer did not proceed with the suggested course of action required by the client in prosecuting a debtor for default. Apparently the lawyer also lost a crucial piece of evidence given to his custody by his client. The lawyer challenged the guilty verdict of the Bar Council before the Supreme Court which accepted the challenge.

The Supreme Court gave the following reasons in support of its ruling;

"10. On a plain reading of the aforesaid provision, it is clear as crystal what punishment is to be imposed in case of misconduct. In the case at hand, as we find, that a conclusion has been arrived at by the Disciplinary Authority that it is a case of gross negligence at the hands of the appellant. As urged by Mr. Parikh, it is only required to be seen whether it is a mere negligence or gross negligence.

11. The Constitution Bench, in the matter of Mr. 'P' an Advocate, (supra) has ruled that mere negligence or error of judgment on the part of an advocate would not amount to professional misconduct. It has been further held therein that error of judgment cannot be completely eliminated in all human affairs and mere negligence may not necessarily show that the advocate who is guilty of it can be charged with misconduct. The Constitution Bench, as is demonstrable, has drawn a distinction between 'negligence' and the 'gross negligence'. We think it appropriate to reproduce the said passage. It is as follows:-

“But different considerations arise where the negligence of the Advocate is gross. It may be that before condemning an Advocate for misconduct, courts are inclined to examine the question as to whether such gross negligence involves moral turpitude or delinquency. In dealing with this aspect of the matter, however, it is of utmost importance to remember that the expression "moral turpitude or delinquency" is not to receive a narrow construction. Wherever conduct proved against an Advocate is contrary to honesty, or opposed to good morals, or is unethical, it may be safely held that it involves moral turpitude. A willful and callous disregard for the interests of the client may, in a proper case, be characterised as conduct unbefitting an Advocate. In dealing with matters of professional propriety, we cannot ignore the fact that the profession of law is an honourable profession and it occupies a place of pride in the liberal professions of the country. Any conduct which makes a person unworthy to belong to the noble fraternity of lawyers or makes an Advocate unfit to be entrusted with the responsible task of looking after the interests of the litigant, must be regarded as conduct involving moral turpitude. The Advocates-on-record like the other members of the Bar Advocates are Officers of the Court and the purity of the administration of justice depends as much on the integrity of the Judges as on the honesty of the Bar. That is why in dealing with the question as to whether an Advocate has rendered himself unfit to belong to the brotherhood at the Bar, the expression "moral turpitude or delinquency" is not to be construed in an unduly narrow and restricted sense.”

12. On a careful reading of the aforesaid passage, it is quite clear that concept of “gross negligence” cannot be construed in a narrow or a restricted sense. It is because honesty of an Advocate is extremely significant. The conduct of an Advocate has to be worthy so that he can be called as a member of the noble fraternity of lawyers. It is his obligation to look after the interest of the litigant when is entrusted with the responsible task in trust. An Advocate has to bear in mind that the profession of law is a noble one. In this regard, we may fruitfully refer to what has been stated in Sanjiv Datta Dy. Secy. Ministry of Information & Broadcasting, In re.:-

“The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible.”

13. Slightly recently in Dhanraj Singh Choudhary v. National Vishwakarma, it has been observed:-

“The legal profession is a noble profession. It is not a business or a trade. A person practising law has to practise in the spirit of honesty and not in the spirit of mischief-making or money-getting. An advocate’s attitude towards and dealings with his client have to be scrupulously honest and fair.”

14. There can be no doubt that nobility, sanctity and ethicality of the profession has to be kept uppermost in the mind of an Advocate. Keeping that primary principle in view, his conduct has to be weighed. There the approach of appreciating the evidence brought on record and the yardstick to be applied, become quite relevant. A three-Judge Bench in P.D Khandekar (supra) while dealing with the scope of an appeal preferred under Section 38 of the Act, ruled that in an appeal under Section 38, this Court in a general rule, cannot interfere with the concurrent finding of fact by the Disciplinary Committee of the Bar Council of India and the State Bar Council unless the finding is based on no evidence or it proceeds on mere conjectures and surmises. The Court has further laid down that finding in such disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a conviction in a criminal prosecution; and there should be convincing preponderance of evidence. We must immediately note with profit that the said principle is absolutely significant. The Court has stressed upon the rule to be applied for acceptance or treating the finding defensible by the Disciplinary Committee of Bar Council. In this regard it is fruitful to reproduce the following passage from the said authority:-

“There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct. In re A Vakil, Coutts Trotter, C.J. followed the decision in re G. Mayor Cooke and said that:

"Negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency. Of that there is no suggestion here, and we are therefore able to say that there is no case to investigate, and that no reflection adverse to his professional honour rests upon Mr. M.', The decision was followed by the Calcutta High Court in re An Advocate, and by the Allahabad High Court in the matter of An Advocate of Agra and by this court in the matter of P. An Advocate.

The decision was followed by the Calcutta High Court In re An Advocate [AIR 1955 CAL 484], and by the Allahabad High Court In the matter of An Advocate of Agra [AIR 1940 All 289] and by this Court In the matter of P. An Advocate [AIR 1934 Rang 33]”

...

17. On a studied scrutiny of the evidence in this context, the factual score, the act of the present appellant cannot be treated to be in the realm of gross negligence. It would be only one of negligence. The tenor of the impugned order, as we notice, puts the blame on the appellant on the foundation that he had not received the acknowledgment. He has offered an explanation that he had given the cheque to the police. There has been no delineation in that regard. That apart, there is no clear cut analysis on deliberation on gross negligence by the advocate. The Disciplinary Committee found the appellant guilty of gross-negligence as he had failed to get the acknowledgment from the complainant-respondent. The examples given by the Constitution Bench are of different nature. In the obtaining factual matrix, therefore, we are unable to accept the conclusion arrived at by the Disciplinary Authority of the Bar Council of India that the negligence is gross. Hence we are impelled not to accept the submission advanced by learned counsel for the respondent.

18. Thus analysed, we are disposed to allow the appeal and accordingly, we so direct and the order passed by the Disciplinary Committee of the Bar Council of India is set aside. ..."

No liquor bar near National or State Highways : Supreme Court

noreply@blogger.com (Unknown) — Sat, 11 Feb 2017 18:34:00 +0530

Taking note of the "alarming statistics on the occurrence of road accidents" which "have claimed human lives and caused debility and injury". In particular taking stock of the alarming number of accidents on the rise and the policy adopted by the Union government, the Supreme Court in its judgment in State of Tamil Nadu v. K. Balu [Civil Appeal No. 12164/2016, decision dated 15.12.2016] rued that "India has a high rate of road accidents and fatal road accidents – one of the advisories states that it is the highest in the world with an accident occurring every four minutes". The Supreme Court noted, amongst others, the followings reasons requiring it to pass judicial orders into an issue which is basically within the realm of the executive;

"10. ... Human life is precious. As the road network expands in India, road infrastructure being an integral part of economic development, accidents profoundly impact on the life of the common citizen. For a nation on the cusp of economic development, India can well avoid the tag of being the accident capital of the world. Our highways are expanding, as are the expressways. They provide seamless connectivity and unheralded opportunities for the growth of trade and industry and for the movement of goods, persons and capital. They are the backbone of the freedom of trade and commerce guaranteed by Article 301 of the Constitution. Our highways are dotted with sign boards warning of the dangers of combining speed and alcohol. Together, they constitute a heady cocktail. The availability of liquor along the highways is an opportunity to consume. Easy access to liquor shops allows for drivers of vehicles to partake in alcohol, in callous disregard to their own safety and the safety of others. The advisories of the Union government to the states are founded on a logical and sound rationale.

11. We are conscious of the fact that the policy of the Union government to discontinue liquor vends on national highways may not eliminate drunken driving completely. A driver of a motor vehicle can acquire liquor even before the commencement of a journey or, during a journey at a place other than a national or state highway. The law on preventing drunken driving also requires proper enforcement. Having said this, the court must accept the policy of the Union government for more than one reason. First and foremost, it is trite law that in matters of policy, in this case a policy on safety, the court will defer to and accept a considered view formed by an expert body. Second as we have seen, this view of the Union government is based on statistics and data which make out a consistent pattern year after year. Third the existence of liquor vends on highways presents a potent source for easy availability of alcohol. The existence of liquor vends; advertisements and sign boards drawing attention to the availability of liquor coupled with the arduous drives particularly in heavy vehicles makes it abundantly necessary to enforce the policy of the Union government to safeguard human life. In doing so, the court does not fashion its own policy but enforces the right to life under Article 21 of the Constitution based on the considered view of expert bodies."

Taking note of the aforesaid position, the Supreme Court went on to declare that the prohibition under the Central Government guidelines should extend to all national and state highways. The relevant considerations were culled out by the Court in the following terms;

"20 For the reasons that we have already indicted, we have come to the conclusion that the views of the High Court of Madras and the High Court of Punjab and Haryana are unexceptionable. No distinction can be made between national and state highways in regard to the location of liquor shops. In regulating the use of national and state highways, the safety of the users of the road is of paramount concern. It would defy common sense to prohibit liquor shops along national highways while permitting them on state highways. Drunken driving as a menace and as a cause of road accidents is a phenomenon common to both national and state highways. Nor, is it a plausible defence to urge that while it is impermissible to drink and drive on a national highway, it is permissible to do so on a state highway.

21 Moreover, we find merit in the restrictions suggested by the Punjab and Haryana High Court that the prohibition should extend not merely to the national and state highways but must be so appropriately tailored so as to ensure that the policy is not defeated by locating liquor shops in close proximity of the highway. A restriction that the shop should not be accessible or visible from the national or state highways or from a service lane along such highways is necessary to ensure that the policy is not surreptitiously violated. Our attention has been drawn during the course of the hearing to a report filed by the OSD Vigilance before the High Court indicating that the prohibition was sought to be defeated by setting up liquor vends which, though not visible from the highway, were situated in close proximity with signboards indicating their presence. The entry to the shop is camouflaged or placed at the rear portion to evade the judicial direction. ... Though, NHAI has sought the removal of these shops, “concrete action” is yet to be taken due to the lack of support from various quarters. Liquor shops, the Project Director notes, are owned by influential people making the removal of unauthorised encroachment impossible without the support of the district administration.

22 For all these reasons, we have come to the conclusion that no licences for liquor shops should be allowed both on the national and state highways. Moreover, in order to ensure that this provision is not defeated by the adoption of subterfuge, it would be necessary to direct that no exception can be carved out for the grant of liquor licences in respect of those stretches of the national or state highways which pass through the limits of any municipality corporation, city, town or local authority. Necessary safeguards must be introduced to ensure that liquor vends are not visible or directly accessible from the highway within a stipulated distance of 500 metres form the outer edge of the highway, or from a service lane along the highway.

In this background the Supreme Court passed inter alia the following directions;

(i) All states and union territories shall forthwith cease and desist from granting licences for the sale of liquor along national and state highways;

(ii) The prohibition contained in (i) above shall extend to and include stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority;

(iii) The existing licences which have already been renewed prior to the date of this order shall continue until the term of the licence expires but no later than 1 April 2017;

(iv) All signages and advertisements of the availability of liquor shall be prohibited and existing ones removed forthwith both on national and state highways;

(v) No shop for the sale of liquor shall be (i) visible from a national or state highway; (ii) directly accessible from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of the national or state highway or of a service lane along the highway.

(vi) All States and Union territories are mandated to strictly enforce the above directions. The Chief Secretaries and Directors General of Police shall within one month chalk out a plan for enforcement in consultation with the state revenue and home departments. Responsibility shall be assigned inter alia to District Collectors and Superintendents of Police and other competent authorities. Compliance shall be strictly monitored by calling for fortnightly reports on action taken.

(vii) These directions issue under Article 142 of the Constitution.

We hope that this would in some way curb the menace of drunken driving and its fallouts.

No encroachment on public roads, even for religious reasons: High Court

noreply@blogger.com (Unknown) — Sat, 11 Feb 2017 17:46:00 +0530

In an earlier post of 2009 we had covered a direction passed by the Supreme Court to the effect that no construction of temples could be made on public roads. We had also covered in 2010 a decision of the Kerala High Court that there could not be any public meetings on roads as it creates inconvenience to public at large. It appears that there is no effect of such directions being passed on the common folk. In this post we are covering a decision of the Allahabad High Court which again emphasizes this point to hold that even for religious reasons there can be no encroachment on public roads.

The case of Luvkuch v. State of Uttar Pradesh [Misc. Bench No. 13474/2016, decision dated 03.06.2016][AIR 2016 All 220] came up before the High Court on account of the complaint of local residents of the State against those "encroaching upon a public pathway by raising construction of a religious structure (Temple) and attempting to encroach upon the public land". They submitted that "people of this Country are basically simple and have faith in one or the other religion" and they are "normally soft whenever any religious activity is undertaken, even if it causes inconvenience of any kind to them". It was on account of this tendency of theirs, it was argued, that others took "advantage of such religious sentiments normally shown by majority of people" and such "scrupulous people do not hesitate in gross misuse by proceeding to encroach upon public land causing obstruction in smooth movement of public." Their argument was noted by the High Court in the following terms;

"3. ... Many a times, we have seen that in the garb of constructing religious structures, like Temple, Mazar, Samadhi, Mosque, Gurudwara, Church etc., public roads (including highways), streets, pathways etc. are encroached upon, obstructing or creating hindrance in smooth movement of public including vehicular traffic and once such structure is raised, due to fear of adverse consequences, people normally avoid to complain, and used to adjust such misuse. It is submitted by learned counsel for petitioners that authorities in power, who under the statute, are responsible to prevent such encroachment and illegal constructions also play soft and do not take or hesitate in taking action for preventing such activities and this is causing mushroom growth of such structures by encroaching upon public roads (including highways), streets, pathways etc. ..."

The Government lawyer accepted that "such encroachment and illegal constructions, neither in law nor otherwise can be allowed" but also submitted that it was "looking to religious sentiments of people" that "authorities find it difficult to take actual action." Taking note of the position, the High Court passed the following order;

"6. There is no fundamental or legal right to encroach upon a public road (including highway), street etc. and raise construction of any kind thereon. These unauthorised and illegal activities cause hindrance and interruption in free flow and movement of traffic including foot walkers. Every citizen has a fundamental right of movement and this cannot be allowed to be infringed by a few violators in public and apathy of State authorities. In our view, those who create such obstructions as also those who perpetuate it by taking care/ managing such structures and also those who fail to take any action in law, all deserve to be taken to task and make responsible and accountable for their respective misdeeds.

7. Looking to the wider perspective of the issue and widespread tendency of such encroachment in the name of religion, faith, sect etc., we find that the State Government and Officials must be asked to act and show response in an effective manner."

In this background the High Court passed the following directions to all State authorities;

(i) State of U.P. through Chief Secretary, U.P. is directed to issue a general direction to all Collectors and Senior Superintendent of Police/Superintendent of Police including the Officers responsible for maintenance of roads including highways) in State of U.P. to ensure that no religious structure in any form, whatsoever, shall be allowed / permitted to be raised on public road (including highways), street, pathway, lane etc. including sideways which is part and parcel of road (including highways) etc. and belong to State.

(ii) If any such structure is existing and has been raised in the last five years, to be more precise on and after 01.01.2011, the same shall be removed forthwith and a compliance report shall be submitted by Collectors etc. of concerned Districts to Principal Secretary/Secretary of concerned department, who shall submit a comprehensive report to the Chief Secretary within next two months.

(iii) If any such religious structure has been raised encroaching upon public road (including highways), street, lane etc., as stated above, before 01.01.2011, a Scheme shall be worked out and executed to shift the same to a private land offered by beneficiaries of such religious structures or persons responsible for its management or to remove it, within six months and a compliance report shall be submitted in the manner as said above in Direction No. (ii).

(iv) On and after 10.06.2016, it shall be the responsibility of all Deputy Collectors/ Collectors in respective Sub-divisions and District as also Circle Officers and Superintendent of Police/Senior Superintendent of Police of concerned District including the Officers responsible for maintenance of roads (including highways) that no encroachment is made, by raising religious structures, by whatever name it is called, belong to any religion, creed, caste, sect, section etc., on public roads (including highways), streets, pathways, sideways, lanes etc. and if any deviation or disobedience is found, these Officers shall be personally responsible. This disobedience shall also be treated a deliberate and intentional disobedience to lower down authority of Court and would amount to criminal contempt.

(v) State Government is also directed to make out a plan so as to ensure that public roads (including highways), streets, pathways, sideways, lanes etc. are not obstructed creating hindrance in the smooth flow of traffic/movement of public on such roads (including highways) due to observance of religious activities and such activities are performed strictly at the places identified for the same or belong to concerned religious sections or at private place.

(vi) In the present case, District Magistrate is directed to take immediate steps and take appropriate action within two weeks.

While indeed the High Court has passed the directions calling upon the authorities to take action, one cannot rule out with certainty that such actions will not be repeated again. Land grabbing, albeit in the name of religion, is a common affair in the country and it will definitely take more than a mandamus to the authorities to act. The common folks must realise the importance of the issue and then only some improvement can be expected.

Tax also a part of discount given by seller: National Consumer Commission

noreply@blogger.com (Unknown) — Sat, 11 Feb 2017 15:53:00 +0530

In its decision in Aero Club (Woodland) versus Rakesh Sharma [Revision Petition No. 3477/2016, order dated 04.01.2017] the National Consumer Disputes Redressal Commission [decision courtesy www.livelaw.in] has directed that when a seller gives flat discount, that discount element also covers the tax part and the seller cannot charge additional tax over and above the discount. This can be understood by way of the example which is noted in the order;

"4. On 26.01.2016, the Complainant purchased a ‘GMT Men Jacket’ from Petitioner’s outlet. The MRP shown on the sticker was ₹3,995/-. After deducing ₹1,598/- as discount @40% and adding to the discounted price, VAT @ 5%, amounting to ₹119.85, the Complainant was asked to pay ₹2,517/- as cost for the said Jacket. Since the amount, so demanded, resulted in a discount less than “Flat” 40% of the stated MRP, the Complainant protested. His complaint was rejected by the Petitioner on the ground that as per the terms and conditions (T & C) of the SALE, VAT had been charged extra as per the instructions of the parent company. Realizing that by advertising at large that the items in the store were being offered at a “FLAT” 40% discount, which in the final analysis was much less, the Consumers were being duped by the Petitioner by adopting such unfair trade practice, alleging deficiency in service on its part, the Complainant filed the Complaint..."

In other words, the seller gave a flat discount of 40% as promised on the MRP. However after giving the discount, the seller charged tax on the discounted price. In the version of the buyer the discounted price should have included tax and tax could not have been charged after giving the discount as it was a 'flat 40% discount on MRP'. The seller refused and this led to the dispute. Accepting the version of the buyer, the Commission declared the practice of the seller as unfair.The legal position was set out by the Commission in the following terms;

13. Explanation to the clause, defining “bargaining price”, leaves little scope for doubt that the advertisement offering “FLAT* 40%’’ off on the select merchandise was the bargaining price within the meaning of clause (2) of Section 2 (r) of the Act. In our view, any person who sees the advertisement would reasonably understand that these items are being sold at “FLAT* 40%” discount. Although it is true that the word “FLAT” has an asterisk, appended to it, purporting to be a pointer to an annotation or footnote, but a bare comparison of the font size of “40%” and the font size of the corresponding terms and conditions mentioned in the footnote, clearly shows that the goods in question were not intended to be sold at a discount of FLAT 40%, the offered bargain price. ...

14. In our opinion, the advertisement in the above form is nothing but an allurement to gullible Consumers to buy the advertised merchandise at a cheaper bargain price, which itself was not intended to be the real “bargaining price” and, therefore, tantamounts to unfair trade practice, as found by both the Fora below. Significantly, under Section 2(d) of the Consumer Goods (Mandatory Printing of Cost of Production and Maximum Retail Price) Act, 2014, the “Maximum Retail Price” printed on the goods, a mandatory labelling requirement, at the relevant time, for pre-packaged goods, means “such price at which the consumer goods shall be sold in retail and such price shall include all taxes levied on the goods.” In that view of the matter, having seen the word “FLAT” in the advertisement, a consumer would be tempted to buy the goods under a bonafide belief that he would get a flat 40% off on the MRP. In our opinion, therefore, the defence of the Petitioners that they had charged VAT as per law is of no avail in so far as the issue at hand, viz. misleading advertisement, resulting in unfair trade practice, is concerned. We are in complete agreement with the Fora below that any discount falling short of “Flat 40%” on the MRP would amount to unfair trade practice, as defined in the Act.

This implies that when a seller gives a flat discount, the seller cannot charge additional tax above the discount. Such charge of additional tax would be a punishable act under the Consumer Protection Act, 1986, as the National Commission order declares.

Parliament can condemn citizens without giving them opportunity to defend: Supreme Court

noreply@blogger.com (Unknown) — Wed, 4 Jan 2017 20:23:00 +0530

Can the Parliament pass a resolution condemning a former judge of the Supreme Court? Can the Parliament condemn a person without offering an opportunity to such a person to defend its views for which he is condemned? Can the Parliament discuss the conduct of a ‘stranger’ which is not relevant for its functioning and pass a resolution on such conduct? These and many other interesting questions touching various aspects of Parliamentary functioning came up for determination before the Supreme Court recently.

Considering the writ petition filed by its former judge, the Supreme Court has in its recent judgment in Justice (Retd.) Markanday Katju versus Lok Labha and Another [Writ Petition(Civil) No. 504/2015, decision dated 16.12.2016] answered all the above questions in the affirmative. Opining that the ambit of Parliamentary activity is very wide and the members of the Parliament collectively enjoy the constitutional protection of “freedom of speech in parliament”, the Supreme Court has considered its earlier decisions on the subject of parliamentary privileges to reiterate the scope of Parliamentary powers under the Constitution. The impugned conduct of the former judge, on which the entire chain of events arose, was noted in the judgment in the following terms;

“2. On 10.03.2015, the petitioner, a former Judge of this Court published a post on his Facebook Page in respect of Mahatma Gandhi, Father of the Nation. The post was entitled “Gandhi – A British Agent” and stated that Mahatma Gandhi did great harm to India. On the same date, another post was published by the petitioner on his Facebook Page in respect of Netaji Subhash Chandra Bose referring to him as an agent of Japanese fascism.”

This led both the houses of the Indian Parliament to pass separate resolutions condemning the former judge who viewed such resolutions as incorrect as being passed “without giving him any opportunity of hearing and that rules of Natural Justice required that he should have been given an opportunity of hearing”. This led to the filing of the petition in the Supreme Court wherein it was stated “that it does not seek any relief against any Member of Parliament individually but the Resolutions in question do not fulfill jurisdictional requirement, and that whether the statements are deplorable or condemnable can be judged only by bodies performing judicial function and cannot be decided by Rajya Sabha or Lok Sabha.”

The Supreme Court examined the constitutional provisions relating to parliamentary functioning and the ambit of its privileges the conclude upon the legal position on the subject in the following terms;

21. The observations of this Court in the aforesaid cases make it clear that “freedom of speech in Parliament” is absolute and unfettered; that the freedom of speech so conferred is subject only to such of the provisions of the Constitution which relate to regulation of procedure in Parliament; that this is recognition of the fact that Members need to be free of all constraints of what they say in Parliament; that clause (2) of Article 105 puts negatively what clause (1) states affirmatively; that both clauses must be read together to determine their content; that a vote, whether cast by voice or gesture is an extension of speech or a substitute for speech; that what has protection under these sub-Articles is what has been said and a vote that has been cast; that the protection is broad, being “in respect of”; that if the impugned speech amounts to libel or becomes actionable or indictable under any provision of law, immunity has been conferred from any action in any Court; and that the Constitution makers attached so much importance to the absolute freedom in debates that they thought it necessary to confer complete immunity on the legislators from any action in any Court in respect of their speeches

…

24. In so far as debates or discussion in the Houses of Parliament are concerned, the only substantive restriction found in the Constitution is in Article 121 of the Constitution which specifically mandates that no discussion shall take place in Parliament in respect of the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. Barring such provision under Article 121, the Constitution has placed no restriction on what can be debated or discussed in Parliament. It is completely left to the wisdom or discretion of the individual Houses and the presiding authorities in terms of the Rules of Procedure of each House. It is for this reason that this Court in Keshav Singh’s case (supra) observed that the “freedom of speech in Parliament” is subject only to such provisions of the Constitution and to the rules and standing orders regulating the procedure of Parliament. Substantively, apart from Article 121, the Constitution itself places no restriction on the subject matter of discussion or debate.

25. The history of parliamentary privileges as found by this Court in the aforementioned cases shows that the privileges have been defined as the sum of the fundamental rights of the House and of its individual Members inter alia, as against the prerogatives of the Crown and the authority of the ordinary courts of law, that the term privilege denotes certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions, and that the privileges of Parliament are rights which are absolutely necessary for the due execution of its powers. The privileges are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members, and by each House for the protection of its Members and the vindication of its own authority and dignity. The expression “...… there shall be freedom of speech in Parliament…….” occurring in first clause of Article 105, is general in nature; not confined to individual members and is applicable to all discussions and debates in Parliament. Secondly, the fact that this privilege is available to strangers who publish under the authority of either House of Parliament under sub-Article (2) and to those who have a right to speak in, and otherwise take part in the proceedings of a House of Parliament or any Committee thereof, is sufficient to refute the argument that it is only an individual privilege of a member of the House. All privileges belong to the House, though some of them may also protect and shield individual members composing the house.”

Having concluded such, the Supreme Court thereafter dwelled upon the factual dimensions relating to the petition to opine that the cause therein was unsustainable in the following terms;

“32. The submission of the petitioner however is, when Parliament is claiming a privilege what is to be considered is whether the act in respect of which privilege is claimed, is fundamental to the functioning to the Parliament. It is submitted by the petitioner that the power available with the Houses to deal with a stranger is only in relation to such act of that stranger which interferes with the functioning of the House and since the remarks of the petitioner did not in any way impede or interfere with the proceedings of Parliament, it was not within the jurisdiction of any of the Houses to take notice of such remarks and pass the Resolutions in question.

…

34. If any action is sought to be initiated against any citizen, whether Member or Non-Member, either in exercise of contempt or breach of privilege, the law that has developed is that the action of such citizen must have interfered with fundamental functioning of the House so as to enable the House to initiate any proceedings against the citizen. The petitioner is right that in cases concerning breach of privilege or contempt such aspect whether the actions of the citizen had interfered with the functioning of the Houses, is crucial and fundamental. But in the present case no action for either breach of privilege or contempt was initiated or exercised. Chapter 20 of Lok Sabha Rules entitled Privileges and Rules 222 to 228 thereof deal with matters of privileges. Similarly Rules 187 to 203 of Rajya Sabha Rules deal with issues concerning privileges. If an action for breach of privilege was initiated, the enquiry would certainly be on the lines submitted by the petitioner, in that whether his remarks had in any way impeded or interfered with the functioning of the Houses.

35. We are however concerned in the present case with exercise of power in terms of Sub-clause (1) of Article 105 which guarantees ‘freedom of speech in Parliament’ as against the cases of the first kind mentioned in the present case is one under Article 105 (1) and (2) of the Constitution, without there being any layer of breach of privilege. The question therefore is whether while exercising such power under Article 105(1), is there any restriction on the scope and debate or discussion in Parliament and whether acts of a citizen, whether Member or Non-Member, could not be noticed or debated. As mentioned hereinabove, the only restriction in the Constitution as regards subject matter of any debate or discussion is to be found in Article 121 of the Constitution. It is axiomatic for the free functioning of Houses of Parliament or Legislatures of State that the representatives of people must be free to discuss and debate any issues or questions concerning general public interest. It is entirely left to the discretion of the Presiding Officer to permit discussion so long as it is within the confines of Rules of Procedure.

36. We now deal with the concerned Rules and the Resolutions in question. Rule 156 of Rajya Sabha Rules quoted hereinabove shows that a resolution could relate to a matter of general public interest and under Rule 155 a resolution could be in the form of a declaration of opinion by Rajya Sabha. Under Rule 157 certain conditions are specified, inter alia that the resolution shall not refer to the conduct or character of persons except in their official or public capacity. Rules 171, 172 and 173 of Lok Sabha Rules are also on similar lines. Resolution dated 11th March, 2015 passed by Rajya Sabha expressed “unequivocal condemnation of the recent remarks” of the petitioner against Mahatma Gandhi and Netaji Subhash Chandra Bose. Similarly resolution dated 12th March, 2015 passed by Lok Sabha condemns the statement of the petitioner relating to Mahatma Gandhi and Netaji Subhash Chandra Bose. The condemnation by both the Houses was of the opinion and remarks and did not refer to the conduct or character of the petitioner. These resolutions were purely in the form of declaration of opinion. Both the resolutions made reference to the offices held by the petitioner as a Judge of this Court and Chairman of the Press Council and show that both Houses were conscious of the fact that the remarks about Mahatma Gandhi and Netaji Subhash Chandra Bose were made not by an ordinary person but by one who had occupied high public office. In the context of such remarks from a person of the stature of the petitioner, which were put in public domain, if both Houses thought it fit to pass resolutions in the form of a declaration, it was certainly within their competence. The nature of remarks regarding Mahatma Gandhi and Netaji Subhash Chandra Bose pertain to general public interest and as such the Houses were certainly within their jurisdiction to pass resolutions.

37. It is not as if any action was deliberately undertaken or sanction was issued against the petitioner. The petitioner in exercise of his right under Article 19(a) made certain statements concerning two famous personalities. We are not for a moment suggesting that he could not or sought not to have made those statements. He is entitled to his views and put those views in public domain for consumption of public in general. The response by both Houses of Parliament was also natural in that the Resolutions in question dealt with his statements in public domain. All that the resolutions did was to condemn his remarks and did not refer to the conduct or character of the petitioner. As stated earlier, the remarks made by the petitioner regarding Mahatama Gandhi and Netaji Subhas Chandra Bose, which were in public domain, were touching subject of general public interest and as such could well be discussed in the Houses. The learned Attorney General is right in submitting that the resolutions had no civil consequences in so far as the conduct and character of the petitioner is concerned. Unlike all the cases referred to herein above which visited upon the concerned individual certain civil consequences, the present resolutions do not inflict any penalty or visit the petitioner with any civil consequences.

…

39. According to the petitioner, a stranger who makes a speech outside the House, not connected with the functioning of the Parliament and not derogatory to Parliament, could not be taken notice of by Parliament to punish him. The power to punish a stranger, if his acts in any way impede or interfere with functioning of Parliament, will certainly entitle Parliament to initiate action for breach of privilege or in contempt. Such limitation is definitely read into the exercise of power for breach of privilege or contempt. However, such limitation or restriction cannot be read in every debate. A pure and simple discussion or debate may touch upon or deal with a stranger.

As stated above, freedom of speech in Parliament is subject only to such of the provisions of the Constitution which relate to regulation of procedure in Parliament. No separate law is required to confer jurisdiction to deal with the opinions expressed by individuals and citizens during debates. If the nature of opinions expressed by such citizens or individuals pertain to matters of general public interest, it would certainly be within the powers of the House to have a discussion or debate concerning such opinions. So long as the debate or discussion is within the confines of the Rules, it will be expressly within the powers of the House to disapprove such opinions.

No restriction is placed by the Constitution or the Rules of Procedure and none can be read in any of the provisions. It is true that a citizen or an individual may find himself in a situation where he has no way to reply to the discussion or a resolution passed by the concerned House. The concerned individual or citizen may also find himself in a position where the resolution is passed without giving him any opportunity of hearing. This definitely is a matter of concern and has engaged attention of the concerned in some countries.”

Legal challenge to Demonetization - Supreme Court Constitution Bench to decide

noreply@blogger.com (Unknown) — Sun, 18 Dec 2016 18:05:00 +0530

Recently we had updated our readers with the decision of the Delhi High Court holding that restrictions on cash-withdrawal under demonetization policy were not illegal. A challenge to this decision and other legal points were before the Supreme Court last week. Opining that these were important constitutional issues and were required to be addressed by a Constitution Bench of the Supreme Court, these challenges have been referred to such bench.

It is noteworthy that Article 145 of the Constitution of India postulates that the "minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution" shall be five. Accordingly such questions cannot be decided by benches of lesser judge composition. In its order in Vivek Narayan Sharma v. Union of India [Writ Petition (Civil) No. 906/2016, order dated 16.12.2016], a bench of three-judges of the Supreme Court has formulated nine questions which in its view are such substantial questions to be decided by the constitution bench. These are as under;

(i) Whether the notification dated 8th November 2016 is ultra vires Section 26(2) and Sections 7,17,23,24,29 and 42 of the Reserve Bank of India Act, 1934;

(ii) Does the notification contravene the provisions of Article 300(A) of the Constitution;

(iii) Assuming that the notification has been validly issued under the Reserve Bank of India Act, 1934 whether it is ultra vires Articles 14 and 19 of the Constitution;

(iv) Whether the limit on withdrawal of cash from the funds deposited in bank accounts has no basis in law and violates Articles 14,19 and 21;

(v) Whether the implementation of the impugned notification(s) suffers from procedural and/or substantive unreasonableness and thereby violates Articles 14 and 19 and, if so, to what effect?

(vi) In the event that Section 26(2) is held to permit demonetization, does it suffer from excessive delegation of legislative power thereby rendering it ultra vires the Constitution;

(vii) What is the scope of judicial review in matters relating to fiscal and economic policy of the Government;

(viii) Whether a petition by a political party on the issues raised is maintainable under Article 32; and

(ix) Whether District Co-operative Banks have been discriminated against by excluding them from accepting deposits and exchanging demonetized notes.

These questions have been referred as in view of these three judges these questions are of "general public importance" and there are "far reaching implications which the answers to the questions may have".

Further, noting that the interim order prayed by the parties i.e. to suspend the operation of the demonetization notifications, would amount to interfering with the executive policy of the Government, the Court declined to issue any interim directions. The Court, to arrive at this conclusion, duly noted the submission of the Government that "for the nature of decision taken by the Government - to unearth the black money or unaccounted money and to dry up the terror fund and defeat the attempt of circulation of large scale counterfeit currency, maintaining complete secrecy of such a decision was imperative."

The Supreme Court confined its observations to "commend to the Authorities to fulfill their commitment made in terms of the stated Notification permitting withdrawal of Rs.24,000/- per account holder of the Bank per week to the extent possible and review that decision periodically and take necessary corrective measures in that behalf."

The outcome of this challenge will be really interesting and can have, beyond the realm of these questions, far reaching implications on the flexibility and powers of the executive government to take action on issues affecting the society at large.

Security comes above prestige; High Court judges to be frisked at Airports: Supreme Court

noreply@blogger.com (Unknown) — Sun, 18 Dec 2016 18:04:00 +0530

Setting aside the directions issued by the High Court to the effect that the judges of the High Court cannot be personally frisked at the airport, the Supreme Court in its recent decision has observed that "matters of security are not issues of prestige" and "these are not matters of 'status'". The Supreme Court has also criticized the High Court for ignoring the self-imposed restraint which if "not maintained the court as an institution would invite a justifiable criticism of encroaching upon" the terrain of the executive wing.

In its decision in Union of India v. Rajasthan High Court [Civil Appeal No. 717/2006, decision dated 14.12.2016] the Supreme Court was concerned with challenge to correctness of the decision of the Rajasthan High Court wherein directions were issued to the Central Government to include Chief Justice and other judges of the High Court in no-frisking list at all airports of the country. It was pointed out by the High Court that "the Chief Justice of the Rajasthan High Court travels often by air between Jodhpur and Jaipur in connection with his official duties and was being inconvenienced by not being exempted from pre-embarkation security checks". It was further observed by the High Court that "in view of the threat perception all VVIPs/VIPs should submit themselves to pre-embarkation security checks 'without exhibiting their egos' but if certain persons amongst them were to be exempted then all constitutional functionaries should be treated at par".

Accordingly the High Court, holding that even High Court judges were constitutional functionaries, directed the Central Government to include them in the list of no-frisking list at airports. The Supreme Court, however, did not approve. Setting aside the decision of the High Court, the Supreme Court made the following observations;

9 The High Court has evidently transgressed the ‘wise and self-imposed’ restraints (as they are described) on the power of judicial review by entertaining the writ petition and issuing these directions. The cause for invoking its jurisdiction suo moto was a news report in regard to a breach of security at Sanganer airport. Matters of security ought to be determined by authorities of the government vested with the duty and obligation to do so. Gathering of intelligence information, formulation of policies of security, deciding on steps to be taken to meet threats originating both internally and externally are matters on which courts singularly lack expertise. The breach of security at Sanganer airport undoubtedly was an issue of serious concern and would have been carefully investigated both in terms of prosecuting the offender and by revisiting the reasons for and implications of a security lapse of this nature. This exercise was for the authorities to carry out. It was not for the Court in the exercise of its power of judicial review to suggest a policy which it considered fit. The formulation of suggestions by the High Court for framing a National Security Policy travelled far beyond the legitimate domain of judicial review. Formulation of such a policy is based on information and inputs which are not available to the court. The court is not an expert in such matters. Judicial review is concerned with the legality of executive action and the court can interfere only where there is a breach of law or a violation of the Constitution.

10. A suo moto exercise of the nature embarked upon by the High Court encroaches upon the domain of the executive. In a democracy based on the rule of law, government is accountable to the legislature and, through it, to the people. The powers under Article 226 are wide – wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, judges walk the path on a road well-travelled. When judicial creativity leads judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is entrusted for governance to the legislative and executive arms of government. Judgments are enforced, above all, because of the belief which society and arms of governance of a democratic society hold in the sanctity of the judicial process. This sanctity is based on institutional prestige. Institutional authority is established over long years, by a steadfast commitment to a calibrated exercise of judicial power. Fear of consequences is one reason why citizens obey the law as well as judicial decisions. But there are far stronger reasons why they do so and the foundation for that must be carefully preserved. That is the rationale for the principle that judicial review is confined to cases where there is a breach of law or of the Constitution. The judgment of the Rajasthan High Court is an example of a matter where the court should not have entered.

11 By the time that the Rajasthan High Court dealt with the case, the list of exemptions had been modified to include Chief Justices of High Courts in the list of persons exempted from pre-embarkation security. Even assuming that the intervention of the High Court in such a matter could have been invoked in the first place (though we believe it should not have been) the matter should have rested there. The cause for which the suo moto writ petition was registered was left behind and the episode which led to the invocation of the jurisdiction found no place in the ultimate directions. The direction to include judges of the High Court was unrelated to the very basis on which the jurisdiction under Article 226 was invoked. But that apart, there is a more fundamental reason why the case should not have been entertained and directions of this nature ought not to have been issued. Matters of security are not issues of prestige. They are not matters of ‘status’. The Union government has adopted the position that the issue as to whether pre-embarkation security exemptions should be granted does not depend only on the warrant of precedence. Among the factors which are borne in mind is that the person who is exempted from pre-embarkation security checks must, according to the government, be secured by such a level of government security on a 24x7 basis, which would virtually preclude the possibility of any prohibited or dangerous items being introduced on board an aircraft through his or her baggage. The security perception of the Union government is that no exemption can be granted to a dignitary if he/she is not under effective government security coverage on a 24x7 basis. Heads of foreign missions in India are exempted from pre-embarkation security checks on a reciprocal basis. We are not called upon to decide upon the legality or justification for the inclusion of the name of any particular individual in the list of exempted persons in these proceedings. What we have said above is to emphasise that the view of the Union government is based on a considered assessment of security perceptions and ought not to have been interfered with in the manner that the High Court did in the exercise of its jurisdiction under Article 226.

State of Jammu & Kashmir does not have any distinct sovereignty; intergral part of India - Supreme Court

noreply@blogger.com (Unknown) — Sun, 18 Dec 2016 08:08:00 +0530

In what can be described as a seminal primer, the Supreme Court in a recent decision has expounded upon the Legislative relationship between State of Jammu & Kashmir and Union of India. The case concerned challenge against a decision of the High Court of Jammu & Kashmir which declared Parliament as incompetent to apply the provisions of the SARFAESI Act to the State of Jammu & Kashmir. According to the High Court the State retained legislative competence and superiority to the extent that it denuded the power of the Parliament. The Supreme Court, exploring the nature and status of the State of Jammu & Kashmir under the Constitutional precincts of India, has expounded upon the extent upto which the State enjoys preferential treatment compared to the other State of India.

In State Bank of India v. Santosh Gupta [Civil Appeal No. 12237/2016, decision dated 16.12.2016], the Supreme Court noted a number of contentions put forth to the effect regarding the restrictions on operation of Parliamentary law in the State of Jammu and Kashmir. Some of these are noted as under;

"since both the Constitution of India and the Constitution of Jammu & Kashmir are expressions of the sovereign will of the people, they have equal status and none is subordinate to the other."

"subjects mentioned in the State List of the 7th Schedule under the Constitution of India were frozen and can never be delegated or conferred on Parliament so long as Article 370 remains and therefore any transference of a State List subject to the Concurrent List later cannot apply to the State of Jammu & Kashmir."

"it is not enough under Article 370 to confer power on Parliament by a Presidential Order, but that every time Parliament enacts a law under such power, before such law can operate in the State of Jammu & Kashmir, the State Government’s concurrence must be obtained." ... "an amendment made to the Constitution of India will not apply unless the State concurs in applying it to the State of Jammu & Kashmir, in which case only a Presidential Order applying such amendment would take effect."

SARFAESI Act "encroaches upon the property rights of permanent residents of the State of Jammu & Kashmir and must be read down so that it will not be permissible under this Section to sell property belonging to a permanent resident of the State to a person who is not a permanent resident of the State"

Considering these objections, the Supreme Court delineated the legal position on the special status of the State of Jammu & Kashmir inter alia in the following terms;

"10. ... Amendments that are made in the Constitution of India are made to apply to the State of Jammu & Kashmir only if the President, with the concurrence of the State Government, applies such amendments to the State of Jammu & Kashmir. The distribution of powers between the Union and the State of Jammu & Kashmir reflects that matters of national importance, in which a uniform policy is desirable, is retained with the Union of India, and matters of local concern remain with the State of Jammu & Kashmir. And, even though the Jammu & Kashmir Constitution sets up the District Courts and the High Court in the State, yet, the supreme authority of courts to interpret the Constitution of India and to invalidate action violative of the Constitution is found to be fully present. ... We may also add that permanent residents of the State of Jammu & Kashmir are citizens of India, and that there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world. All this leads us to conclude that even qua the State of Jammu & Kashmir, the quasi federal structure of the Constitution of India continues, but with the aforesaid differences. It is therefore difficult to accept the argument of Shri Hansaria that the Constitution of India and that of Jammu & Kashmir have equal status. Article 1 of the Constitution of India and Section 3 of the Jammu & Kashmir Constitution make it clear that India shall be a Union of States, and that the State of Jammu & Kashmir is and shall be an integral part of the Union of India."

"12. The first thing that is noticed in Article 370 is that the marginal note states that it is a temporary provision with respect to the State of Jammu & Kashmir. However, unlike Article 369, which is also a temporary provision limited in point of time to five years from the commencement of this Constitution, no such limit is to be found in Article 370. Despite the fact that it is, therefore, stated to be temporary in nature, sub-clause (3) of Article 370 makes it clear that this Article shall cease to be operative only from such date as the President may by public notification declare. And this cannot be done under the proviso to Article 370 (3) unless there is a recommendation of the Constituent Assembly of the State so to do. ..."

"13. ... The scheme of Article 370(1), therefore, is clear. Since the Instrument of Accession is an agreement between the erstwhile Ruler of Jammu & Kashmir and the Union of India, it must be respected, in which case if a matter is already provided for in it, it would become applicable straightaway without more, and only consultation with the Government of the State is necessary in order to work out the modalities of the extension of the provisions of the Government of India Act corresponding to the Constitution of India referred to in it. However, when it comes to applying the provisions of the Constitution of India which are not so reflected in the Instrument of Accession, they cannot be so applied without the concurrence of the Government of the State, meaning thereby that they can only be applied if the State Government accepts that they ought to be so applied. Under Article 370(2), the concurrence of the Government of the State, given before the Constituent Assembly is convened, can only be given effect to if ratified by the Constituent Assembly. This legislative scheme therefore illustrates that the State of Jammu & Kashmir is to be dealt with separately owing to the special conditions that existed at the time of the Instrument of Accession."

"15. It has been argued that Parliamentary legislation would also need the concurrence of the State Government before it can apply to the State of Jammu & Kashmir under Article 370. This is a complete misreading of Article 370 which makes it clear that once a matter in either the Union List or the Concurrent List is specified by a Presidential Order, no further concurrence is needed. Indeed, the argument is that a Constitutional amendment does not ipso facto apply to the State of Jammu & Kashmir under the proviso to Article 368 as applicable in the said State unless there is concurrence of the State Government and therefore, logically, it must follow that Parliamentary legislation would also require concurrence of the State Government before it can be said to apply in the State of Jammu & Kashmir. We fail to understand or appreciate such an argument. A constitutional amendment is different in quality from an ordinary law and, as has been held by us, it is clear that the language of Article 368 proviso and the language of Article 370 are different and have to be applied according to their terms."

18. ... The argument that Article 370(1)(b) ‘limits’ the power of Parliament is answered by the fact that the entire Constitution of India, as it exists in 1964, has been made applicable by Presidential order to the State of Jammu & Kashmir, availing both Articles 370(1) (b) and (d) for this purpose. And the expression ‘limited to’ does not occur in Article 370(1)(d),under which it is open to adopt the entire Constitution of India subject to exceptions and modifications, as has been noted above.

21. What is important to note in this Constitution, which was drafted by a Constituent Assembly elected on the basis of adult franchise, is that the State of Jammu & Kashmir is stated to be an integral part of the Union of India, and that the executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under Article 370 of the Constitution of India. A combined reading, therefore, of Article 370 of the Constitution of India, the 1954 Presidential Order as amended from time to time, and the Constitution of Jammu & Kashmir, 1956 would lead to the following position insofar as the legislative competence of the Parliament of India vis-à-vis the State of Jammu & Kashmir is concerned:
1. All entries specified by the 1954 Order contained in List I of the 7th Schedule to the Constitution of India would clothe Parliament with exclusive jurisdiction to make laws in relation to the subject matters set out in those entries.

2. Equally, under the residuary power contained in Entry 97 List I read with Article 248, the specified subject matters set out would indicate that the residuary power of Parliament to enact exclusive laws relating to the aforesaid subject matters would extend only to the aforesaid subject matters and no further.

3. Parliament would have concurrent power with the State of Jammu & Kashmir with respect to the entries that are specified in the Presidential Order of 1954 under List III of the 7th Schedule of the Constitution of India. This would mean that all the decisions of this Court on principles of repugnancy applicable to Article 254 would apply in full force to laws made which are relatable to these subject matters.

4. Every other subject matter which is not expressly referred to in either List I or List III of the 7th Schedule of the Constitution of India, as applicable in the State of Jammu & Kashmir, is within the legislative competence of the State Legislature of Jammu & Kashmir."

40. ... The High court judgment begins from the wrong end and therefore reaches the wrong conclusion. It states that in terms of Section 5 of the Constitution of Jammu & Kashmir, the State has absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties. The State legislature having enacted Section 140 of the Jammu & Kashmir Transfer of Property Act, therefore, having clearly stated that the State’s subjects/citizens are by virtue of the said provision protected, SARFAESI cannot intrude and disturb such protection. The whole approach is erroneous. As has been stated hereinabove, Entries 45 and 95 of List I clothe Parliament with exclusive power to make laws with respect to banking, and the entirety of SARFAESI can be said to be referable to Entry 45 and 95 of List I, 7th Schedule to the Constitution of India. This being the case, Section 5 of the Jammu & Kashmir Constitution will only operate in areas in which Parliament has no power to make laws for the State Thus, it is clear that anything that comes in the way of SARFAESI by way of a Jammu & Kashmir law must necessarily give way to the said law by virtue of Article 246 of the Constitution of India as extended to the State of Jammu & Kashmir, read with Section 5 of the Constitution of Jammu & Kashmir. This being the case, it is clear that Sections 13(1) and (4) cannot be held to be beyond the legislative competence of Parliament as has wrongly been held by the High Court.

41. It is rather disturbing to note that various parts of the judgment speak of the absolute sovereign power of the State of Jammu & Kashmir. It is necessary to reiterate that Section 3 of the Constitution of Jammu & Kashmir, which was framed by a Constituent Assembly elected on the basis of universal adult franchise, makes a ringing declaration that the State of Jammu & Kashmir is and shall be an integral part of the Union of India. And this provision is beyond the pale of amendment. ..."

...

43. It is thus clear that the State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India. It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and distinct class in themselves. The residents of Jammu & Kashmir, we need to remind the High Court, are first and foremost citizens of India. ...

...

We have been constrained to observe this because in at least three places the High Court has gone out of its way to refer to a sovereignty which does not exist."