A zestful beginning of 2023 for Supreme Court as Constitution Benches assemble regularly in 10 matters in the month of January

Synopsis

In a 382-pages-long judgment dealing with the challenge to demonetisation of Rs 500 and Rs 1000 currency notes in 2016 alleging it to being poorly planned, unfair and unlawful, the Constitution Bench of S. Abdul Nazeer, B.R Gavai, A.S. Bopanna, V. Ramasubramanian, B.V. Nagarathna, JJ. had upheld the Centre’s 2016 demonetisation scheme in a 4:1 majority and had held that demonetisation was proportionate to the Union’s stated objectives and was implemented in a reasonable manner. While Gavai, J had written the majority opinion for himself and SA Nazeer, A.S. Bopanna, V. Ramasubramanian, JJ, Nagarathna, J was the lone dissenter who had held that though demonetisation was well-intentioned and well thought of, the manner in which it was carried out was improper and unlawful. The Constitution bench answered the 6 issues for consideration before them.

1. ‘Any’ series of notes under Section 26(2) if the RBI Act- Interpreted

2. Excessive Delegation

3. 08-11-2016 Notification- Flawed decision making.

4. 08-11-2016 Notification-Proportionality

5. Period of exchange of notes

6. RBI’s independent power

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In a 300-pages-long judgment on the issue relating to freedom of speech of public functionaries and whether the right to life and personal liberty of citizens impedes the same and has ruled against imposing further restrictions on freedom of speech of Ministers, a Constitution Bench of S Abdul Nazeer, AS Bopanna, BR Gavai, V Ramasubramanian & BV Nagarathna, JJ, delivered the verdict. While V Ramasubramanian, J delivered the verdict for himself and SA Nazeer, AS Bopanna, BR Gavai, JJ, BV Nagarathna, J agreed with the reasoning and conclusions arrived at by the majority on certain questions, went on to lend a ‘different perspective’ on some issues by way of separate opinion. The Constitution bench answered the following questions which emerged before them after SP leader Azam called the unfortunate incident of 2016 gang-rape of a minor and her mother in Uttar Pradesh a “political conspiracy only and nothing else”:

1. Exhaustive Reasonable Restrictions

2. Enforceability of Fundamental Rights against non-State actors

3. State’s duty to protect against threat to personal liberty by a non-State actor.

4. State’s collective responsibility for Minister’s statements

5. Irresponsible statements if a Constitutional Tort

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A 5-Judge Constitution Bench of K.M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, CT Ravikumar, JJ., delivered judgement on the miscellaneous application filed by Indian Society of Critical Care Medicine (‘ISCCM’) seeking modification of the guidelines for living will/advance medical directive that was issued in Common Cause v. Union of India, (2018) 5 SCC 1. In 2018, a 5-Judge Constitution Bench had unanimously held that the right to die with dignity is a fundamental right.

However, in 2019, ISCCM requested for modification of some of the guidelines prescribed in the 2018 Judgment, while claiming that the procedure for terminally ill patients to exercise their right to die is very inconvenient and requires simplification. The Court viewed that the directions require modifications or deletion. The new guidelines will remove the difficult three-tiered procedure, where a doctor and the patient’s family must get a judicial magistrate’s (first class) approval to withdraw life support. The Bench viewed that the directions contained in paragraphs 198 to 199 of the 2018 judgment required to be modified / deleted. Thus, made necessary changes.

The court considered two major issues in the case:

• Whether the Court should issue suitable directions or set in place norms to provide for what is described as Advance Directives?

• Whether even in the absence of Advance Directives, when a person is faced with a medical condition with no hope of recovery and is continued on life support system/medicines, life support system should be withdrawn?

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Union of India (‘UoI’) filed a Curative petition as parens patriae of the victims of the world’s largest industrial disaster – the Bhopal Gas Tragedy — seeking enhancement of compensation in the settlement. It was alleged that the quantum of damages payable, have vitiated the settlement affirmed in the ‘Settlement Judgement‘ (1989) 3 SCC 38 and ‘Review Judgement‘ (1991) 4 SCC 584. The Court in both the judgements had underscored the possibility for a second look at the settlement and the need that may arise to do so. UoI alleges that after comprehensive review, the basic underlying assumptions of the facts and data in the impugned judgments were in correct. The petition is based upon the difference in the estimated number of deaths, temporary disability and minor injury cases, thus, prayed for redetermining the payment of quantum of damages within a reasonable period. After hearing the parties at length, the Court reserved its order. A detailed order with redetermination of the quantum of damages is awaited.

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The Constitution bench of Chief Justice D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha J.J., reserved its judgement in the case concerning administrative control over transfers and postings of civil servants in National Capital Territory of Delhi. The issue arose in 2016, when the Division Bench of A.K. Sikri and R.K. Agrawal J.J., referred the matter to the Constitution Bench of Supreme Court which interpreted the insertion of Article 239AA of the Constitution of India which provides for a special status to NCTD. The court in that judgment had ruled that the LG is bound by ‘aid and advice’ of the CoM of Government of NCTD and must attempt to settle any point of difference by way of discussion and dialogue. The Division Bench of A.K. Sikri and Ashok Bhushan J.J., pronounced its split verdict and differed on opinion on issue relating to ‘service’ under Seventh Schedule. The issue before the Court was whether the exclusion of ‘services’ from the legislative and executive domain of GNCTD vide May 2021 notification of UOI, is unconstitutional and illegal. After hearing the parties at length, the Court reserved its judgement. A detailed order, determining the issue is awaited.

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The appellants challenged the scope of applicability of Section 33 and 35 of the Indian Stamp Act, 1899, in respect of an application under Section 11 of the Arbitration and Conciliation Act, 1966 (‘ACA’) which states the appointment of an Arbitrator. The appellants contended that if the scope of examination of the existence of the arbitration agreement was widened to include examination of whether or not the instrument was duly stamped, such interpretation, apart from being contrary to the plain language of Section 11(6A) of the ACA, wholly defeated the legislative intention of the Arbitration and Conciliation (Amendment) Act, 2015, and puts a spoke in the wheel of conduct of the arbitration process at its very inception. The 2015 Amendment Act was introduced to emphasise the speedy disposal of cases relating to arbitration with least court interference. The petitioner contended that after the amendment, all that the Courts needed to see was whether an arbitration agreement existed. The legislative policy and purpose were essentially to minimise the Court’s intervention at the stage of appointing the arbitrator. The Stamp Act was a fiscal measure enacted to secure revenue of the State and not to arm a litigant with a weapon of technicality. It was alleged that failure to stamp a document which is needed to be stamped under the provisions of the Stamp Act did not affect the validity of the transaction embodied in the document but merely renders the document inadmissible in evidence. Non-payment is a curable defect, which may be cured at any stage before the instrument was admitted into evidence by the Arbitral Tribunal. The adjudication of stamp duty is a time-consuming process that does not naturally align with the stated goal of the ACA to ensure expeditious appointment of arbitrators. It was further argued that compelling the judge under Section 11 to adjudicate stamp duty would be to encourage parasitical challenges and dilatory tactics in resisting reference to arbitration. A detailed order, determining the issue is awaited.

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An application for clarification of the Supreme Court Judgement dated 27-09-2018 was filed on behalf of Department of Military Affairs, Ministry of Defence.

By way of the 2018 judgement:

1. Section 497 of Penal Code, 1860 (‘IPC’) was struck down as unconstitutional being e violative of Articles 14, 15 and 21 of the Constitution.

2. Section 198 (2) of Code of Criminal Procedure, 1973 was held to be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

3. The decision of Sowmithri Vishnu v. Union of India (1985) Supp SCC 137, V. Revathi v. Union of India (1988) 2 SCC 72 and W. Kalyani v. State (2012) 1 SCC 358 stood overruled.

The petitioner posed important questions of law for consideration of the bench:

1. Whether the persons subject to Army Act by virtue of Article 33 of Constitution of India being a distinct class should continue to be subject to the rigors of Section 497 of IPC by making an exception in regard to application of ibid Section 497 of the IPC vis a vis person subject to Army Act

2. Whether the promiscuous or adulterous acts by persons subject to Army Act should be allowed to be governed by the provisions of Section 45 or Section 63 of the Army Act, 1950 under corresponding provisions of Navy Act and Air Force Act being special legislation irrespective of the Supreme Court judgment in Joseph Shine’s case by treating it as an abrogation of Fundamental Rights provided by law in terms of Article 33 of Constitution of India.

3. In view of Article 33 of the Constitution, whether the judgment in Joseph Shine would prevent the Armed Forces from proceeding against a person subject to the Army Act, who is guilty of what would in effect be an adulterous act.

Unlike Section 497, the Armed Forces do not make a difference between a male or a female, who is subject to the Army Act, if they are guilty of an offence.

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In a batch of petitions, the petitioner contended that the entire debate revolves around the issue of Citizenship. Assam has been facing a silent invasion for decades. It was feared of being extinct in the hands of illegal immigrants coming from erstwhile East Pakistan and present Bangladesh. It was further contended that if Section 6-A of the Citizenship Act, 1955 was not struck off being ultra vires, it would be impossible to free Assam from the clutches of illegal immigrants, who have entered Assam in view of the impugned provisions of the Citizenship (Amended) Act,1985.

The petitioners posed many issues for consideration before the Supreme Court:

a. Whether Section 6A of the Citizenship Act, 1955 suffers from any constitutional infirmity?

b. Whether the reason that immigrants from East Pakistan have enjoyed rights of citizens for over 40 years, can be a ground for grant of any relief?

c. Whether the Assam Accord-a Memorandum of Settlement between the Union of India, the State of Assam, All Assam Students Union, and All Assam Gana Sangram Parishad arrived at for resolving a long pending issue-being a political settlement and a matter of great policy importance can at all be judicially reviewed at this stage, as Courts will decline to enter into the ‘political thicket’ and annul matters of such magnitude and with immense consequences?

d. Whether delay is a factor that can be taken into account in fashioning reliefs in a petition filed under Article 32 of the Constitution of India, 1950?

e. Whether the Immigrants (Expulsions from Assam) Act, 1940 being a special enactment qua immigrants into Assam, alone can apply to immigrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners Act and the Foreigners (Tribunals) Order, 1964 made thereunder?

f. Whether the children born in India to illegal migrants who have migrated after 25 March 1971 from the specified territories in Assam are entitled to be granted citizenship?

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In a batch of petitions, Subhash Desai, General Secretary of the Shiv Sena Political Party challenged the ex-facie arbitrary, unconstitutional and illegal action of the Governor of Maharashtra for inviting Eknath Rao S. Shinde to be the Chief Minister of Maharashtra.

He further prayed for quashing the proceeding of Maharashtra Legislative Assembly held in July 2022, the election of the Speaker, confidence motion in favour of the respondent and call for records of all pending disqualification petition filed against the respondents under para 2(1)(a) and para 2(1)(b) of Tenth Schedule and Article 142 of the Constitution.

Sunil Prabhu, a member of the 14th Maharashtra Legislative Assembly sought to set aside the communication of the speaker of the house recognising the respondent as leader and Bharat Gogawale as Chief Whip. He also sought to quash the summons by the Speaker in the disqualification petitions filed against 14 MLAs of the Shiv Sena Legislature Party Leader and quash the proceedings initiated by Bharat Gogawale. He also sought to quash the direction issued to Uddhav Thackrey, President of Shiv Sena by the Governor, to prove his majority on the floor of the house by holding a trust vote. The matter is further listed for hearing.

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In a batch of petitions, issue involved around public remedies and Constitutional interpretation: judicial review of acts of persons who are not ‘State’ under Article 12.

The preliminary issue which arose in the present matter was to assess whether the judgement of a five-judge bench of Supreme Court in Kaushal Kishor v. State of Uttar Pradesh (2023) SCC OnLine SC 6 was in conflict with previous decisions of five judges in P.D. Shamdasani v. Central Bank of India Ltd., 1952 SCR 391, and Vidya Verma v. Dr. Shiv Narain Verma, 1955 (2) SCR 983 which had held that Article 19 of the Constitution was intended to protect freedom against State action other than in the legitimate exercise of its power to regulate private rights in public interest.

Petitioner in the matter posed 4 issues for consideration of Supreme Court.

1. In view of the observation in Kaushal Kishor (Supra) that fundamental rights under Articles 19 and 21 may be applied horizontally “on a case-to-case basis” and “considering the nature of the right violated and the extent of obligation on the part of the violator”, what conditions would need to exist and what tests would be applied to undertake judicial review of acts by a person who is not ‘State’?

2. Under what circumstances, would private contracts such as “Terms of Service” between the Respondents and members of the public be susceptible to judicial review for violation of fundamental rights?

3. Is there a duty placed on courts, whilst evolving principles of common law, to do so in a manner that furthers and betters the protection of fundamental rights?

4. If so, should the principle of absolute liability, or in the alternate, strict liability, be evolved to apply to public leaks of private data?

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