“It is necessary to say that the problem is not of dissent. Every society must have opinions and point of view. The debasement however is in the manner of dissent. These differences of views should be set forth in a manner which conveys it as a different. We have lost respect for each other’s opinion. It isn’t right or wrong, it is a question of time. Courts are faced with a situation where political matters under the guise of PILs lead to shrill discourse. We have a democratic government under the Constitution, there is separation of powers, hence Courts can’t be unelected governments. Checks and balances are necessary. It’s a very delicate balance and I think the segregation of powers must be respected. Dissent by Judges must be treated with constructive approach and there are limitations to that criticism. Dissent has and will always have importance.”
– Justice Sanjay Kishan Kaul
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Justice Sanjay Kishan Kaul was born on December 26, 1958 and hails from the distinguished Dattareya Kauls of Srinagar, whose ancestry can reliably be traced back to over 500 years. He graduated in Economics (Hons) from St Stephens College, Delhi University in 1979 and later obtained LLB from Campus Law Centre, Delhi University in 1982.
♦Did You Know? Justice Kaul’s great-great grandfather Raja Suraj Kishan Kaul was the revenue minister in the Regency Council.[1]
♦Did You Know? Justice Kaul’s great grandfather was Raja Sir Daya Kishan Kaul who became the Prime Minister of Kashmir.[2]
Justice Kaul enrolled as an Advocate with Bar Council of Delhi on July 15, 1982 and practiced law at the High Court of Delhi and the Supreme Court of India. During his 19-year-long practice, he handled mainly commercial, civil and writ matters in the Delhi high court and the Supreme Court.[3] He was Advocate-on-Record of the Supreme Court of India from 1987 to 1999 and was designated as a Senior Advocate in December, 1999. He was appointed as Senior Counsel for the Delhi High Court and the Delhi University, was on the Senior panel of Union of India and served as the Additional Senior Standing Counsel for the DDA.
Justice S.K. Kaul was elevated as Additional Judge of the High Court of Delhi on May 03, 2001 and was appointed as a permanent Judge on May 02, 2003. He was appointed as the Chief Justice of Punjab and Haryana High Court on June 01, 2013 before being sworn-in as Chief Justice of the Madras High Court on July 26, 2014. He was appointed as a Judge of the Supreme Court of India on February 02, 2017.[4]
Notable Judgements at Supreme Court
Taijuddin v. State of Assam, 2021 SCC OnLine SC 1154
In a case where an accused merely pointed to the house where the victim was hiding, thereby helping a fully armed “murderous mob” locate the victim, Division bench comprising of Sanjay Kishan Kaul* and MM Sundresh, JJ., has held that the mere fact that the accused was not brave enough to conceal where the victim was hiding did not make him a part of the unlawful assembly under Section 149 of the IPC.
Ratnam Sudesh Iyer v. Jackie Kakubhai Shroff, 2021 SCC OnLine SC 1032
The Division Bench of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., held that a generally worded clause of a contract or Deed of Settlement cannot be said to constitute an agreement to change the course of law that the Section 34 proceedings are subject to.
The Bench expressed,
“The general phraseology of a clause which seeks to include any amendment to the Act would not be able to be availed of to expand the scope of scrutiny as it would appear to run contrary to the legislative intent of Section 26 of the Amendment Act.”
Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, 2021 SCC OnLine SC 1031
In a case relating to dishonour of cheques where it was alleged that the complaint was filed by the managing director in his personal capacity and not on behalf of the Company, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that there could be a format where the Company’s name is described first, suing through the Managing Director but there cannot be a fundamental defect merely because the name of the Managing Director is stated first followed by the post held in the Company. It was further held that it would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation.
Yatin Narendra Oza v. High Court of Gujarat, 2021 SCC OnLine SC 1004
A Division bench of Sanjay Kishan Kaul* and R. Subhash Reddy, JJ has temporarily restored the senior designation of Advocate Yatin Narendra Oza who was stripped off this designation after he levelled charges of corruption against the registry of the Gujarat High Court.
“In effect, the fate of the petitioner is dependent on his appropriate conduct as a senior counsel before his own High Court, which will have the final say. All we are seeking to do is to give him a chance by providing a window of two years to show that he truly means what he has assured us. We can only hope that the petitioner abides by his assurances and does not give any cause for the High Court or for us to think otherwise.”
Kush Kalra v. Union of India, Writ Petition(s)(Civil) No.1416 of 2020, 18-08-2021
Taking a significant step towards gender equality, the Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., issued interim direction permitting the women candidates to take part in the National Defence Academy (NDA) examination.
Suraz India Trust v. Union of India, 2021 SCC OnLine SC 833
Coming down heavily upon a contemnor, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the power to punish for contempt is a constitutional power vested in this Court which cannot be abridged or taken away even by legislative enactment.
“The raison d’etre of contempt jurisdiction is to maintain the dignity of the institution of judicial forums. It is not a vindictive exercise nor are inappropriate statements by themselves capable of lowering the dignity of a Judge. These are often ignored but where despite all latitude a perennial litigant seeks to justify his existence by throwing mud at all and sundry, the Court has to step in.”
Sivasankaran v. Sathimeenal, 2021 SCC OnLine SC 702
While deciding a case of a matrimonial dispute where the marriage never took off from the first day and was never consummated and the parties had been living separately from the date of marriage for almost 20 years, a Division Bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ. passed a decree of divorce in favour of the husband on account of irretrievable breakdown of marriage as well as on account of cruelty committed by the wife.
“… Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation …”
Samual Sk. v. State of Jharkhand, 2021 SCC OnLine SC 645
A Division Bench comprising of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ., agreed to reduce the sentence of the appellant−husband convicted for offence of cruelty to woman punishable under Section 498-A IPC, if he pays Rs 3 lakh as compensation to his wife and children.
The Supreme Court observed that
“The object of any criminal jurisprudence is reformative in character and to take care of the victim. It is towards this objective that Section 357 CrPC is enacted in the statute. The objective of which is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence. In the present case, it is one of voluntarily offering the amount albeit to seek a reduction of sentence.”
Siddharth v. State of U.P., 2021 SCC OnLine SC 615
A Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. has held that if the Investigating Officer does not believe that the accused will abscond or disobey summons, he/she is not required to be produced in custody. While remarking that if arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person, the Supreme Court observed:
“The word ‘custody’ appearing in Section 170 CrPC does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the chargesheet.”
Inaction of the Governments in appointing President and Members/Staff of Districts and State Consumer Disputes Redressal Commission and inadequate infrastructure across India: In Re, 2021 SCC OnLine SC 602
Opining that empowerment of the consumers is the legislative intent behind the Consumer Protection Act, 2019 and the ground reality is quite different as there is little endeavour to translate this Legislative intent into an administrative infrastructure with requisite facilities, members and staff to facilitate the decision on the consumer complaints, the Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., stated,
“Statistics can be deceptive but sometimes statistics reveal the truth. The position prevalent in the State Consumer Forums and the District Consumer Forums is best reflected by the statistics of existing vacancies, insofar as the Chairman and the members are concerned.”
The Bench was addressing the inaction of the Governments in appointing President and Members/Staff of Districts and State Consumer Disputes Redressal Commission and inadequate infrastructure across India.
South Eastern Coalfields Ltd. v. S. Kumar’s Associates AKM (JV), 2021 SCC OnLine SC 486
A Division Bench of Sanjay Kishan Kaul* and Hemant Gupta, JJ., reiterated that a Letter of Intent merely indicates a party’s intention to enter into a contract with the other party in future. No binding relationship between the parties at this stage emerges and the totality of the circumstances has to be considered in each case.
Dharmesh v. State of Gujarat, 2021 SCC OnLine SC 458
A Division Bench of Sanjay Kishan Kaul* and Hemant Gupta, JJ., found that direction passed by the Gujarat High Court requiring the appellant-accused to deposit a sum of Rs 2 lakhs each towards compensation to the victims, as a condition for grant of bail was not sustainable.
“In our view the objective is clear that in cases of offences against body, compensation to the victim should be a methodology for redemption. Similarly, to prevent unnecessary harassment, compensation has been provided where meaningless criminal proceedings had been started. Such a compensation can hardly be determined at the stage of grant of bail.”
Ajit Mohan v. Delhi Legislative Assembly, 2021 SCC OnLine SC 456
“After all, it is for ‘the common man’ that the judicial system exists.”
In a postscript to its 188-pages long judgment in Ajit Mohan v. Delhi Legislative Assembly (wherein it was held that representatives of Facebook will have to appear before the Committee constituted by Delhi Legislative Assembly for looking into Facebook’s role in aggravating Delhi Riots which broke out last year), the 3-Judge Bench of Sanjay Kishan Kaul, Dinesh Maheshwari, and Hrishikesh Roy, JJ. stressed upon the need for timely disposal of cases. The way forward, in dealing with the likely post-COVID surge in number of cases pending adjudication, was also discussed. Read More…
Shah Faesal v. Union of India, (2020) 4 SCC 1
In a writ petition filled under Article 32 of the Constitution of India pertaining to two Constitution Orders issued by the President of India in exercise of his powers under Article 370 of the Constitution of India, a Full judge Constitution bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ, held that no cause was made out to refer the matter to a larger bench as there is no conflict between the judgments in the Prem Nath Kaul v. State of J & K, AIR 1959 SC 749 and the Sampat Prakash v. State of J & K, AIR 1970 SC 1118. The Court observed that
“judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning.”
Amit Sahni v. Commissioner of Police, 2020 SCC OnLine SC 808
“In a democracy, the opposition is not only tolerated as constitutional, but must be maintained because it is indispensable”
– Walter Lippmann
A 3 judge bench of Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari, JJ., while appreciating the existence of the right to peaceful protest against a legislation observed that
“such kind of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.”
Balaji Baliram Mupade v. State of Maharashtra, 2020 SCC OnLine SC 893
“Delay in delivery of judgments violates Article 21 of the Constitution of India.”
While reminding the High Courts for observing maximum time period for pronouncement of reserved judgment as per Anil Rai v. State of Bihar – (2001) 7 SCC 318, the Court observed that
“Judicial discipline requires promptness in delivery of judgments – an aspect repeatedly emphasized by this Court. The problem is compounded where the result is known but not the reasons. This deprives any aggrieved party of the opportunity to seek further judicial redressal in the next tier of judicial scrutiny.”
State of M.P. v. Bherulal, 2020 SCC OnLine SC 849
“Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed”
A Division bench headed by Justice Sanjay Kishan Kaul, dismissing the a Special Leave Petition filed by the State of Madhya Pradesh with a delay of 663 days, held
“We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value.”
Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396
The 5 judges bench comprising of Dipak Misra, CJ. and Kurian Joseph, R.F. Nariman, Sanjay Kishan Kaul and Indu Malhotra, JJ., while deciding the issue whether the ‘creamy layer’ among SC/STs should be barred from obtaining promotions through reservations and unanimously held that the judgment delivered in M. Nagaraj v. Union of India; (2010) 12 SCC 526, relating to reservations in promotions for SC/ST persons does not need reconsideration by a larger seven-judge Bench.
“The whole object of reservation is to see that backward classes of citizens move forward so that they march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were.”
K.S. Puttaswamy v. Union of India (Privacy- 9 Judge), (2017) 10 SCC 1
Justice S.K. Kaul was part of the 9 Judge Bench which unanimously held that, Right to Privacy is a basic fundamental right. The Bench, which also comprised of J.S. Khehar, CJ. and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, S.K. Kaul and S.A. Nazeer, JJ., observed that right to privacy is an intrinsic part of right to life and liberty under Article 21 and freedoms guaranteed under Part III of Constitution of India.
Justice Kaul concurring with the majority view that privacy is a primal and natural right inherent to every individual,
“Privacy is an inherent right. It is thus not given, but already exists.”
recognised the technological development and breach of privacy committed by private individuals, private entities and non-State actors.
“We are in an information age. With the growth and development of technology, more information is now easily available. The information explosion has manifold advantages but also some disadvantages. The access to information, which an individual may not want to give, needs the protection of privacy.”
Justice Kaul observation at that time had far reaching implications and paved the way for rights of LGBT Community as at that time S. 377 of IPC was constitutional.
“The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity……. Ones sexual orientation is undoubtedly an attribute of privacy.”
Justice Kaul called upon the legislature to legislate on this issue and ensure privacy of individuals and formulated ‘Principle of Proportionality and Legitimacy’.
“The concerns expressed on behalf of the Petitioners arising from the possibility of the State infringing the right to privacy can be met by the test suggested for limiting the discretion of the State:
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The action must be sanctioned by law;
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The proposed action must be necessary in a democratic society for a legitimate aim;
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The extent of such interference must be proportionate to the need for such interference;
- There must be procedural guarantees against abuse of such interference.”
Notable Judgements at High Court
R. Gandhi v. Secretary to the Government, 2016 SCC OnLine Mad 8898
“Every language is a temple, in which the soul of those who speak it is enshrined”
– Oliver Wendell Holmes
A Division bench of S.K. Kaul, C.J. and R. Mahadevan, J, deciding upon the challenge to the grant of ‘Classical’ status to languages like Telugu, Kannada, Odiya, Malayalam etc., opined that the it is for the experts to determine whether a language satisfy the norms to be consideration as ‘Classical’ and the Court cannot go into the opinions and findings of expert body. .
S. Tamilselvan v. Government of T. N., 2016 SCC OnLine Mad 5960
“If you do not like a book, throw it away. There is no compulsion to read a book. Literary tastes may vary — what is right and acceptable to one may not be so to others. Yet, the right to write is unhindered.”
A Division bench of S.K. Kaul, C.J., and Pushpa Sathyanarayana, J., opined that “a book cannot be dismissed merely as sensational, reactionary or mean-spirited” and held that the settlement arrived at the peace meet would not be binding on the author.
The Court observed that the an attitude of tolerance towards writings have existed for ages and author and artistes like Prof. Perumal Murugan cannot be under a constant apprehension that if he writes something which deviates from well trodden path, he will face adverse consequences.
‘Let the author be resurrected to what he is best at. Write.’
Babita Puniya v. Secretary, 2010 SCC OnLine Del 1116
“Nature gave women too much power; the law gives them too little.”
– Will Henry
A Division bench headed by Justice Sanjay Kishan Kaul, recognising the rights of women to get equal status with their male counterparts in Army and Air force, held that the Short Service Commissioned women officers of the Air Force who had opted for PC and were not granted PC but was granted extension of SSCs and Short Service Commissioned women officers of the Army are entitled to PC at par with male Short Service Commissioned officers with all consequential benefits.
“If these officers have performed equally well in their task which are non-combat in nature and on that basis respondents have extended their period of SSC more than once, it would be gross violation to Articles 14, 16 and 21 of the Constitution of India to accept a situation where such women officers are deprived of a PC while male officers are granted this PC. If this is not discrimination what would be discrimination based on gender and denial of equal opportunity of employment to these women?”
Mahesh Bhatt v. Union of India, 2009 SCC OnLine Del 104
“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.”
– John Stuart Mill
In a writ petition filled under Article 226 of the Constitution of India, Sanjay Kishan Kaul, J. deciding the issue as to what extent government can regulate commercial speech to safeguard public health, observed that
“Directors of films should not have multifarious authorities breathing down their necks when indulging in creative art. The concept of censorship itself is a deviation and due care has been taken to incorporate the discouragement of any propagation or advertisement of smoking by incorporating the relevant provisions in the guidelines of the Censor Board.”
The Court struck down Rule. 4(6), 4(6A), 4(6B) and 4(8) of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004 as they ultra vires the parent Act and are violative of Article 19(1)(a) of the Constitution of India.
Maqbool Fida Husain v. Rajkumar Pandey, 2008 SCC OnLine Del 562
“Art is never chaste. It ought to be forbidden to ignorant innocents, never allowed into contact with those not sufficiently prepared. Yes, art is dangerous. Where it is chaste, it is not art.”
– Prablo Picasso
The Court observed that
“Ancient Indian art has been never devoid of eroticism where sex worship and graphical representation of the union between man and woman has been a recurring feature….. The ultimate essence of a work of ancient Indian erotic art has been religious in character and can be enunciated as a state of heightened delight or ananda, the kind of bliss that can be experienced only by the spirit.”
The Court ruled that nudity alone cannot said to be obscene. The Court relaying on the facts of the case and authorities cited held that offence alleged under Section 294 IPC cannot be made out. Similarly, the ingredients of Section 298 IPC are not present in this case as there was no deliberate intention on the part of the petitioner to huff the nationalist feelings of an individual or riot any religious feelings.
Explaining the dynamics between democracy and freedom of speech, Justice Kaul said that
“Pluralism is the soul of democracy. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends.”
The Court emphasized on liberal tolerance and observed that
“A liberal tolerance of a different point of view causes no damage. It means only a greater self-restraint… Our culture breeds tolerance both in thought and in actions.”
According to Justice Kaul,
“There are very few people with a gift to think out of the box and seize opportunities, and therefore such people’s thoughts should not be curtailed by the age-old moral sanctions of a particular section of society having oblique or collateral motives who express their dissent at every drop of a hat.”
Khushwant Singh v. Maneka Gandhi, 2001 SCC OnLine Del 1030
“He that publishes a book runs a very great hazard, since nothing can be more impossible than to compose one that may secure the approbation of every reader”
– Miguel De Cervantes.
A Division bench presided by Justice Sanjay Kishan Kaul, dismissing the injunction application filled by respondent, held that the truth regarding the part of the appellant’s autobiography “Truth, Love and a Little Malice” being derogatory, defamatory and incorrect will be determined at the stage of trial in the claim for damages and allowed the appellant to publish his autobiography.
“There is no doubt that there are two competing interests to be balanced as submitted by the learned counsel for the respondent, that of the author to write and publish and the right of an individual against invasion of privacy and the threat of defamation. However, the balancing of these rights would be considered at the stage of the claim of damages for defamation rather than a preventive action for injuncting of against the publication itself.”
[1] Lawyers Update – http://www.lawyersupdate.co.in/legal-luminaries/neeraj-kishan-kaul/
[2] Lawyers Update – http://www.lawyersupdate.co.in/legal-luminaries/neeraj-kishan-kaul/
[3] https://web.archive.org/web/20140819083005/http://www.samachar.com/justice-sanjay-kishan-kaul-to-be-new-chief-justice-of-madras-high-court-ofygMogdiae.html
[4] https://main.sci.gov.in/chief-justice-judges
