Tag: #caseanalysis

Case Number

Special Reference No. 1 of 1964

Case Citation

AIR 1965 All 349, 1965 CriLJ 170

Bench

J Takru, G Mathur

Decided on

10 March 1965

Relevant Act/Section/Article

Art. 211, Art. 22, Art. 194, Art. 21, Art. 143

Introduction

The Kesavananda Bharti case is well-known and frequently discussed, yet few people are aware that the Kesavananda Bharti case was assigned to a bench with less than half the judges who decided the Keshav Singh case. It required the combined efforts of numerous justices of the Supreme Court, High Court judges, MPs and MLAs, and ultimately the Prime Minister and the Chief Justice of India to take on this case. One of the most remarkable examples from Nehru’s presidency is this one. This case is of utmost significance to the Indian judicial system, but it has never been talked about.¹

Facts: Who was Keshav Singh?

In the Uttar Pradesh city of Gorakhpur, Keshav Singh was born. He belonged to the socialist party or served in municipal politics. The Congress Party was in power during the time. When a leaflet titled “exposing the shortcomings of Narsingh Narain Pandey” was published, it implied that Pandey, a legislator for the Congress Party, was dishonest. Narsingh Pandey started working on a case against Keshav Singh as soon as he learned about the booklet or leaflet. Pandey and other MLAs from the Congress party disagreed with the leaflet. They claimed that the leaflet violated their right to privacy. When Singh was asked to confirm his name on this issue by the district of the legislative assembly in Lucknow, he remained silent regarding the accusations made against him. When queries were directed at him, he stood with his back to the speaker and stayed silent. On February 19, 1964, Keshav Singh was supposed to go before the assembly and accept a reprimand, but he didn’t because he didn’t have the money to go (according to his excuse). The assembly decided that whatever that couldn’t be achieved amicably would have to be taken by force after Keshav Singh’s defense. On March 14, Singh was apprehended and brought before the assembly. If it weren’t for the decision dismissing Keshav Singh and his attorney’s appeal, the litigation and the issue might have been over at that point.

When the speaker of the legislature keeps asking questions, Singh chooses the challenging course. After then, things started to get worse, and the speaker called Congress MLAs to the assembly. Singh had written to the speaker to protest his conviction, attest to the veracity of the charges made in the leaflet, and denounce the authoritarian nature of the arrest warrant. By entering the home, Chief Minister Sucheta Kripalani imposed seven-day house detention on Singh after the MLAs had enough consensus on the same. The legislature approved a resolution in the format suggested by the chief minister, and Singh was then taken to prison for his one-week sentence. One day before Singh was scheduled to be released after serving his sentence, a lawyer on his behalf submitted a petition to the Allahabad High Court asking for his immediate release. The petition claimed that Singh’s imprisonment was unlawful because the assembly lacked the right to imprison him and because he was not allowed to defend himself after being brought before the court.

Issues

1. Whether or not the Legislative Assembly has no criminal jurisdiction and no authority to punish anyone for its contempt;
2. Whether or not the Legislative Assembly has such authority, the petitioner’s detention is illegal and violates Article 22(2) of the Constitution.
3. Whether or not the Legislative Assembly’s action in punishing the petitioner was malicious.

Observations and Decisions of the Court

The Supreme Court concurred, pointing out that the resolution of the assembly violated the independence of the judiciary. Article 211 was an essential component of the system that allowed courts to make difficult decisions, even if they were wrong, without worrying about political retaliation, therefore it could not be reduced to a meaningless assertion. The Supreme Court ruled that Keshav Singh can be granted bail while awaiting a decision and that the high court has the authority to consider his appeal. The parliament lacked the legal right to order Solomon’s arrest or to ask Justices Beg and Sehgal for an explanation. If the consent of the justice addresses the audience, the drama may compromise the independence of the judiciary. On the other hand, if they show up and make a strong defense, the assembly might be forced to stop acting to avoid being accused of harassing well-meaning judges. The judges have the option of filing a petition with the supreme court, but there was no guarantee that the judges would share the same outcome as the justices who heard the plea. They petitioned the Allahabad High Court, arguing that the assembly’s actions were against Article 211 of the Constitution, which forbids state legislatures from discussing the conduct of any high court or Supreme Court judge. While the case was still pending in court, Justices Beg and Sehgal requested a hold on the resolution against them.²

The court referred to English law, which states that any detention is prima facie unlawful, and the act is justified by the person who ordered the detention. Further, the court held that the appeal was flawed and could only succeed if the petitioner established his or her claims. Prima facie, the detention cannot be considered illegal, and the petitioner must prove that the duty was illegal, the court must decide whether the obligation is lawful. The court does not understand why the defendant should not be allowed to argue that the bond, warrant, and commitments used to detain the petitioner were valid. In any event, the court is entitled to the assistance of the defendant’s attorneys in resolving the issues raised in the case.

Legislature has not yet passed legislation regulating the powers, privileges, and immunities of the House, but the power to do so is granted by Entry 39 of List II of Schedule VII of the Constitution. The powers and privileges of the Legislative Assembly must therefore be determined according to Article 194(3). There is no express or implied prohibition in the Constitution against the Legislative Assembly exercising the privilege enjoyed by the House of Commons to commit for its contempt. The possession of power or privilege The argument is that the House of Commons had a similar penal power and that the inclusion of a separate provision in Article 193 regarding the penal power indicates that the Constitution’s authors did not intend to include any penal power under Article 194 (3). In other words, the argument is that Article 193 encompasses all penal powers conferred on the Legislative Assembly and that no penal power can be assumed as a result of the provisions of Article 194(3). The court didn’t agree with this assertion. Article 193 merely limits the power and privilege of state legislatures to punish people who sit or vote in the legislature without authority, in our opinion. This Article cannot be read as exhaustive of all the penal powers of the State Legislatures to commit for contempt is a judicial power is, in our opinion, not a compelling reason for denying the power to the Legislative Assembly because our Constitution does not provide for a rigid separation of powers. Since, even according to the petitioner’s learned counsel, Article 193 gives the Legislative Assembly the power to punish a person who sits or votes as a member of the Assembly in certain circumstances, which is also like judicial power, it cannot be said that the idea of the Assembly exercising judicial power was abhorrent to the Constitution-makers.

The HC rejected Keshav Singh’s argument that the facts discovered against the petitioner by Parliament did not constitute contempt of Parliament. The HC also ruled that the defendants did not violate Article 21 or natural rights because the Legislatures had established procedures for investigating allegations of violation of privilege. The HC also said the county jail warden is within the jurisdiction to execute the chairman’s warrant. Noting that the provisions of Part III of the Constitution do not apply where Article 194(3) of the Constitution applies, the HC notes that the fundamental rights of Part III are governed by Article 194(3) of the Constitution. The HC also ruled that the applicant was deprived of his liberties following the legal procedure set out in the last part of Article 194(3). Petitioners also argued that Congress’ decision to arrest him was motivated by political animosity and hatred. The Court couldn’t prove it for that reason alone. The Supreme Court dismissed the Keshab Singh case and refused to infer parliamentary malice. In dismissing Keshav Singh’s motion, the High Court said only the House could decide whether there was contempt of the House of Commons in a particular circumstance and that the court had not addressed the question of legality.

While the case is about violations of fundamental rights and constitutional crises, the focus is on symbolic gestures of solidarity by judicial authorities and how they collectively resolve disputes while they exist. It is about upholding the dignity and basic rights of citizens. enshrined in the Indian Constitution. This case highlights the importance of the separation of powers as one of the key building blocks of the constitution and how each can control excesses and respond appropriately. This decision ensured a proper balance of power between the two peers.

The Supreme Court also ruled that Articles 105(3) and 194 should not be used to limit the rights of citizens and lawyers to bring cases before the court. The Supreme Court has ruled that the House of Commons, as the highest court of record in the country, not Congress, can only try someone for contempt with an unwarranted general arrest warrant. The principles of Fundamental Rights and Judicial Review, especially Articles 32 and 226, not only empower but also impose obligations on the Supreme Court and the Supreme Court to exercise fundamental rights. The Indian Parliament and the State Legislatures are entitled to such privileges. As a result, courts may view the House’s implied warrant as a statutory order to punish someone for contempt. The SC not only wanted to recognize that the House has the power to punish insults and violations of privilege. The independence of the judiciary is seriously undermined if the House asserts the right to question the actions of judges. Not only that, the house has the power to punish disrespect and violation of privilege. Before a decision is made, the Privileges Committee will conduct an investigation and allow the complainant to comment.

Conclusion

If it weren’t for several defects and errors in judgment, the conflicts between the high court and the Uttar Pradesh assembly would never have escalated to the extent that they did. It was unusual for Singh’s attorney to enter a plea with only one day left in Singh’s sentence. The judge would have promptly revoked Singh’s bail if the government’s attorney had arrived at the high court at 3 p.m. with a report on the case. The fact that this case shows how readily constitutional institutions can turn against one another and how tough situations are best resolved by statesmanship rather than brinksmanship makes it noteworthy in and of itself.

References

1. Keshav Singh vs Speaker, Legislative Assembly AIR 1965 All 349, 1965 CriLJ 170
2. Atharva Kulshrestha, Keshav Singh – Case commentary,aishwaryasandeep.com(Last Accessed: 09 July, 2022) https://aishwaryasandeep.com/2021/06/07/keshav-singh-case-commentary/

This blog is written by Jay Kumar Gupta, a student of the School of Law, NMIMS Bangalore, currently in the second-year of BBA LL.B.(Hons.).

Case No.

Civil Appeal No. 1013-1015 of 1987

Equivalent Citation

• (1997) 4 JT 124
• (1997) 3 SCALE 1
• (1997) 2 SCR 1086
• (1997) 4 Supreme 388
• (1997) 4 SCC 606

Bench

• Hon’ble Justice K. Ramaswamy
• Hon’ble Justice K. Venkataswami
• Hon’ble Justice G. B. Pattanaik

Decided On

14/03/1997

Relevant Acts

Constitution of India, 1950 – Article 14, Article 15, Article 16, Article 25, Article 26. Uttar Pradesh Sri Kashi Vishwanatha Temple Act, 1983– Section 16, Section 17, Section 18, Section 19, Section 20, Section 20(1), Section 20(2), Section 21, Section 22, Section 22(2), Section 23(2), Section 24(2), Section 25(8), Section 3, Section 4, Section 4(2), Section 5, Section 6, Section 6(1).

Brief Facts and Procedural History

The Supreme Court has received an appeal of the Allahabad High Court’s decision in this case. The two Honorable Justices of the High Court disagreed on whether the Kashi Vishwanath Temple is a place of worship, but they agreed that Parliament has the authority to pass laws governing its administration. The Pujaris commanded pilgrimages, the precincts were filthy, and Lord Shiva’s stolen jewellery was allowed into the premises. A committee was established with the recommendation that the government should seize control of the temple. Accordingly, two ordinances were promulgated one after the other until the Parliament enacted the Act for the management of the temple by the Government.

Issues before the Court

The Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983, which was to manage the temple of Lord Vishwanath, also known as Sri Adi Visheshwara of Kashi, has been questioned for its constitutionality.

The following issues were also up for decision by the Supreme Court:

• Whether Sri Kashi Vishwanath Temple is a denominational temple.
• Do followers of Lord Vishwanath have the constitutionally protected fundamental right to manage their religious affairs and manage the Temple’s assets following the law as guaranteed by Articles 25 and 26 of the Constitution?
• How important and integral are the traditional practices of the religion and religious practice protected by Articles 25 and 26?

Decision

1. Since it does not affect any of the rights of the religious denominations protected by Articles 25 and 26 of the Constitution of India, 1950, the Act passed to manage the temple is constitutional.
2. A denominational temple cannot be found at the Kashi Vishwanath temple. Shaivites are Hindus, and as such, they belong to no particular denomination. They are a part of the religion known as Hinduism. The Act protects the right to participate in ceremonies, rituals, or acts of worship that adhere to long-standing customs. 
3. Although Section 22 is regulated and extends the right to the means of subsistence under Article 21, the rights of those who work as archakas are unaffected.
4. The right to enter the temple, interact with Lord Sri Vishwanath’s Linga, and perform worship there is extended to everyone who practices Hinduism. The Act mandates that the State protect all manifestations of Hindu Lord Vishwanath worship, regardless of whether they are carried out following Hindu Sastras, regional custom, or temple-specific usage.  It is not restricted to a particular sect or denomination.  Shaiva worshipers are Hindus in general and do not belong to any particular denominational sect or group.
5. State regulation may apply to all secular activities that are connected to religion but do not directly relate to it or constitute an essential component of it. However, what constitutes an essential component of religion can be ascertained primarily from that religion’s doctrines following its tenets, historical context, change in evolved process, etc. The concept of essentiality in and of itself does not matter. When determining whether a particular religious matter, practice, or belief is an essential element of the religion, one consideration to make is whether the community as a whole sees the matter or practice as essential.

Analysis

The term “denomination” is extensively covered in this instance. A group that exists as a sect, group, class, or kind and has unique characteristics that set it apart from other groups is referred to as a denomination. The Constitution Bench had to decide on the precise definition of the term “denomination” in The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. It was decided, by the definition provided in the Oxford Dictionary, that the word “denomination” refers to a group of people or a class who are united under the same name as a religious group or body and who are known by a distinctive name. Even though Hinduism has many well-known denominations, not all of these groups are considered to be part of the denomination as a whole.

Every court ruling regarding a temple’s religious affiliation turns on the followers of that religion’s central doctrine. The denomination is not developed in a single day. The rituals will undoubtedly resemble Hindu religious rituals in general. However, that in and of itself is not sufficient to contest the status of a religious denomination. One of the twelve Jyotirlingas is Kashi Vishwanath. Jyotirlingas are worshipped following a predetermined set of rituals.  The temple’s followers provide endowments for such rituals by making donations. The pujaris are now considered to be a class that is a religious denomination for purposes of protection under Articles 25 and 26. Article 14 extracts class legislation. This class shall be accorded equal treatment under Article 14 for rights under Articles 25 and 26. 

The contested Act only affects secular activities; it does not affect religious freedom. The provisions of the Act make it abundantly clear what the purpose of the legislation is. It can only help to enhance the property’s management and upkeep. The Board will have the right to take possession of all real estate, including both movable and immovable property, money, valuables, jewellery, records, documents, tangible objects, and other assets that belong to or are a part of the Temple and its endowments under the terms of Section 13.

In State of Rajasthan and Others vs. Shri Sajjanlal Panjawat and Others¹, it was determined, following the ruling in the Durgah Committee of Ajmer case², that a religious denomination’s right to purchase property is distinct from its right to conduct its own business regarding religion. The former can be controlled by laws that the legislature can lawfully pass, whereas the latter is a fundamental right that cannot be taken away by the legislature.

The management of the endowments and property of the Temple shall be vested in the Board of trust for the deity of Sri Kashi Vishwanath temple. There is no controversy surrounding the selection of unofficial members. It is the appointment of the ex-official member of the board as the member in question. This amounts to the government having direct control over temple affairs. Non-Hindus cannot be appointed as board members, according to Section 3. While section 6 (1) calls for the ex-officio member to be appointed and to be of any religion.  But if ex-officio members are not Hindus, section 6 (3) allows for the appointment of the next available Hindu.

The term “Hindu” is currently undefined. According to the Supreme Court of India, a Hindu may or may not be someone who practices temple worship or professes a religion that originated in India.³ Sikhs, Buddhists, and Jain are all considered Hindus even though they don’t necessarily practice all the same rituals and worship as temple devotees. Hindus are guaranteed the right to enter the temple regardless of their religious affiliation under Article 25(2)(b). Can someone who doesn’t believe in the temple be given to the management of the temple?  Secondly, the non-Hindu official will authorize the Hindu official as a member of the board. Whether a non-Hindu will approve a Hindu’s appointment as a representative? The Act’s single goal is to administer the Temple more effectively and properly. Regarding effective management administration, there is no disagreement. It is only intended to usurp authority for the temple’s management. There are people on the board. These individuals need to be free from governmental control.

It has been decided that the Act protects the practice of Hindu religious doctrines, traditions, and usages.  However, the secular administration of the religious matters in the Temple is a secular component. The legislative branch has the power to impose restrictions on and make interferences with the efficient management of such resources. The Temple is not their property, even though Mahant, Panda, and Archaka are in charge. Simply put, the Act gave the Board control over the Pandas. On the designated day, only the pandas’ management rights were terminated and transferred to the Board for better and more suitable management. Neither does it belong to the State nor was it bought for that purpose. To put it another way, the Board has assumed control over the Lord Sri Viswanath Temple’s management now that the Pandas/Mahant are no longer in charge of it. It cannot be argued that this management change results in the property’s ownership rights being acquired or lost.

Hereditary individuals were in charge of running the temple. In the hands of the appellants, the management could still be carried out properly under the Act. There was no need for the appointment of the ex-officials to the board for the management of the temple. The court determined that managing the temple’s endowments and property, as well as other temple business, is a secular activity and is not protected by the religious freedoms guaranteed by Articles 25 and 26. Because of this, anyone, Hindu or otherwise, can control such activities. The Act only gives Hindus the chance to serve on the board that oversees the temple’s endowments and property and is considered a secular endeavour. Ex-official non-Hindu members who have every right to oversee secular activity are being mistreated.  Because if an activity, is secular, then every citizen of the country shall be eligible to be appointed without any discrimination. If an activity is religious, then it should not be interfered with by the government.

Conclusion

The Temple was managed by the descendants of the Mahant. The Act was enacted only for the excellent management of the temple since there was mismanagement by the descendants. Once the Act is established, it must make provisions for the committee’s creation and hand over management of the temple to the pujaris while making significant provisions for the punishment if mismanagement occurs again.

The case involved an appeal regarding the observance of the religious denomination’s fundamental rights, but it ultimately came down to ownership rights of the property and endowments. The court’s decision thus lies where religious and secular activity is distinguished. To keep balancing on this thin line, either the Act shall be amended to include the non-Hindus for maintaining the secular activities or the court shall include the management of the endowments and property of the temple as religious activity.

References

1. State of Rajasthan and Others vs. Shri Sajjanlal Panjawat and others, AIR 1993 SC 706.
2. The Durgah Committee, Ajmer and Another vs. Syed Hussain Ali and Others, AIR 1961 SC 1402.
3. M.P. Gopalakrishnan Nair And Another vs. State Of Kerala And Others, (2005) 11 SCC 45.

This article is written by Somnath Sharma, a law graduate.

CASE NUMBER

Appeal case filed in Calcutta High Court against the order of acquittal passed by Session Court of Midnapore in trial no 18 of March, 1980.

EQUIVALENT CITATIONS

1984 CriLJ 1535

BENCH

B. Chakrabarthi, J. Chaudhri

DECIDED ON

16 June, 1983

RELEVANT SECTION/ ACT

Indian Penal Code, 1860

Section 90 of the Indian Penal Code states that a consent is not a consent if given by the person under fear of misconception and injury or consent of a person who is of an unsound mind or intoxication unable to understand the nature and consequence of which he has given consent or consent of child unless contrary appears from context if the consent is given by the person who is under twelve years of age.

Section 376 of the Indian Penal Code states the punishment of rape offence except in sub-clause (2) any person proved to commit rape shall be punished with imprisonment that may not be less than seven years but for life or for a term that extends to ten years and also liable with fine unless the women raped was his own wife and is not under twelve years of age, in which he shall be punished with the imprisonment of term extended to two years or with fine or with both. Only in the special case of judgment, the imprisonment would be less than seven years.

FACTS OF THE CASE

It is the case where the de facto complaint is filed against the order of the acquittal passed by the Additional Sessions Judge acquitting the accused charged with section 376 of the Indian Penal Code.

In August 1978, the complainant filed a police report saying that the accused opposite party No. 2, a teacher at the nearby village school, used to visit her home and one day while the complainant’s parents were away from the house, told her he loved her and that he wanted to marry her. The complainant requested that the marriage be consummated. The person is accused of promising to do so and that he would personally secure her parents’ approval. Relying on this promise, she began living with the accused. This cohabitation lasted for a couple of months, during which time the accused would frequently drop by her home at odd hours and occasionally spend the night with her. She eventually became pregnant, and when she requested that the marriage take place as soon as possible, the accused suggested having the child aborted in exchange for agreeing to marry the complaint after the Panchayat elections. The accused eventually abandoned the commitment and ceased coming to the complainant’s house because she had refused to have an abortion. Debra P.S. Case No. 20 was started based on this accusation. The accused asserted his innocence and said that the accusation was brought against him by a political competitor in an effort to extort money from him; the accuser was a woman of easy virtue.

At the trial stage, it was to be seen whether the age of the consent was there and whether the consent was fraudulently obtained by section 90 of the Penal Code. The judge observed that even when there is a whole false promise is given yet the accused is not liable for the rape offence as the consent of intercourse is not given based on the misconception of fact. There is no concept of fake marriage. The accused did not come under the provision of section 376 of Indian Penal Code so the accused was acquitted. The petitioner has filed a revisional application and obtained the rule

ISSUE

1. Whether the girl was below the age of giving consent or not?
2. Whether the consent was obtained fraudulently or using any force or coercion and was hit by section 90 of the Indian Penal Code?

JUDGMENT

During the trial, two questions were asked about the age of the girl; whether the girl was below the age of consent for intercourse or not; and whether there was any fraud in obtaining the consent of the girl or whether the consent of the girl was acquired by the use of any force or coercion. Firstly, on the question of the age of the girl to give consent for this sexual intercourse, it was clear from the trial that the girl was over 16 years old at the time of the commission of the offence by the accused, as claimed by the accused. Regarding the other issue, whether the complainant’s alleged consent fell under the scope of Section 90 of the Penal Code, the learned Judge made the following observation: Given the circumstances of the case, even if it is assumed that a wholly false promise was made, the accused could not be held accountable for the crime of rape because the accused’s consent to the alleged intercourse was not given under a “misconception of fact” as defined by Section 90 of the Penal Code.

His exact finding is “In terms of the Code, a false promise is not a fact. If the accused had ravished the girl while pretending to be the girl’s husband or in a false marriage, the situation might have been different.” The learned Judge concluded that the act done by the accused did not fall under the purview of the Penal Code and, as a result, cleared him of the offence under Section 376 of the IPC. The failure to maintain the promise of marriage does not come under the misconception of fact under section 90 of the Indian Penal Code. In order to come up with the meaning of misconception, there must be proper evidence. This matter would be held differently if there is a belief made that they are already married. If a fully grown girl consents for sexual relationship and the sexual relationship continues until she becomes pregnant it is not an act induced in section 90 of the Penal Code that is the misconception of fact.  The revision application failed.

This article is written by Sree Lekshmi B J; third-year law student of Sastra University, Thanjavur.

CITATIONS

1950 AIR 124, 1950 SCR 594.

BENCH

• Justice Fazal Ali, Saiyid
• (CJ) Kania, Harilal
• Sastri, M. Patanjali
• Mahajan, Mehr Chand
• Das, Sudhi Ranjan
• Mukherjea, B.K.

JUDGEMENT GIVEN ON

26 May 1950

FACTS AND BACKGROUND OF THE CASE

Romesh Thappar was a publisher of a weekly magazine called Crossroads; certain articles were published in his magazine regarding the doubtful nature of public policies especially foreign policy. These articles created suspicion among the public about governmental policies leading to a communist movement rising in some regions of Madras forcing the state government to impose a ban on circulation of the magazine in areas where the communist movement was going on with enthusiasm.

LAWS INVOLVED

1. Madras Maintenance of Public Order Act, 1949 Section 9 (1-A): It allows the government to stop the circulation, selling, and distribution of any journal in any part of Madras to ensure ‘Public Safety’ or preserving ‘Public Order’.
2. Constitution of India Article 19 (1) (a): Provides freedom of speech and expression to citizens of India. Freedom of speech and expression gives one a right to speak and express their opinions and ideas about something through traditional media or social media.
3. Constitution of India Article 19 (2): Provides for the reasonable restrictions to freedom of speech and expression granted under Article 19 (1) (a). These restrictions include the sovereignty and integrity and security of the state and friendly relations with foreign states.
4. Constitution of India Article 13: Provides for the laws that may or may not be passed before the commencement of the Constitution of India if violates fundamental rights mentioned in Part 3 of the Indian Constitution must be declared null and void.
5. Constitution of India Article 32: Provides an Indian citizen right to approach Supreme Court if their fundamental right has been violated by any government authority. The article goes as ‘Heart & Soul of Indian Constitution’ due to its protective nature towards other fundamental rights specified in Part 3.  
6. Constitution of India Article 226: Provides High Courts the power to issue writs for enforcement of fundamental rights.

ISSUES

1. Whether the violation of the fundamental right can be dealt with by Supreme Court before State High Court?
2. Whether the order passed by the government under Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) violate the freedom of Speech and Expression?
3. Whether the existence of Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) was itself unconstitutional for it violates fundamental rights mentioned in Part 3 of the Indian Constitution?  

DECISION OF COURT

On the issue of whether the Supreme Court can be approached before the State High Court, the court believed that Article 32 gives power to Supreme Court to issue writs if any government authority violates fundamental rights provided in part 3 of the Indian Constitution, which in itself as a fundamental right that cannot be denied. Hence, the Supreme Court as the guardian of fundamental rights cannot refuse to entertain any petition for seeking against infringements of fundamental rights.

The order passed by the Madras government was declared unconstitutional as it violates the Freedom of Speech and Expression mentioned under Article 19 (1) (a) of the Indian Constitution. The ban imposed by the state government on the circulation of magazines prevents the freedom to propagate ideas, opinions, and viewpoints regarding any issue that concerns the general public.

The Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) was made with the interest of issues like ‘Public Safety’ and ‘Public Order’. Here, ‘Public Safety’ means the security of health of the general public from dangers that vary according to the situation. ‘Public Order’ means to deal with events that may lead to disruption of peace and tranquility of the province. Regarding the question of the unconstitutionality of the law, the Supreme Court invokes the ‘Doctrine of Severability’ to ensure if severing any law defeats the entire purpose of legislation or not. Thereby, declared that the said order contradicts the fundamental right given under Article 19 (1) (a) hence ultra vires. However, Court is of the view that entire legislation cannot be considered void as Article 13 of the Indian Constitution states that the law can be declared null and void only to the extent of its inconsistency with fundamental rights.

This article is written by Simran Gulia, pursuing BA LLB from Maharaja Agrasen Institute of Management Studies.

Case Number

Criminal Appeal No. 329/2021

Equivalent Citation

2021 SCC OnLine SC 230

Bench

• Justice S Ravindra Bhat
• Justice AM Khanwilkar

Decided On

March 18, 2021

Relevant Act/Sections

• Section 376 of the Indian Penal Code, 1860
• Section 506 of the Indian Penal Code, 1860

Brief Facts & Procedural History

The petition was filed by Advocate Aparna Bhat and eight other lawyers in response to an unjustified order issued by the Madhya Pradesh High Court on July 30, in which the accused of sexual assault was ordered to visit the victim’s home on the occasion of Raksha Bandhan with Rakhi and be tied by her as a condition of bail. The accused, who is a neighbour of the complainant Sarda Bai, entered her house on April 20, 2020, and attempted to sexually harass her, prompting the filing of (hereafter referred to as IPC). After the case was investigated, a charge sheet was filed. Under section 438 of the Code of Criminal Procedure, the accused filed an application for anticipatory bail (hereafter referred to as Cr.P.C.) The accused was granted bail by the Madhya Pradesh High Court on the affliction that he and his wife visit Sarda Bai’s house on the occasion of Raksha Bandhan on August 3, 2020, with a package of sweets and ask her to tie the Rakhi to him with the pledge that he will protect her to the best of his ability in the future. The accused was also directed to hand up Rs. 11,000 as a gesture of gift given by brothers to their sisters as part of the customary Raksha Bandhan rites, which the petitioners have challenged before the Hon’ble Supreme Court.

The petitioner filed a writ plea in the Supreme Court of India against the Madhya Pradesh High Court’s order. The following prayers were included in the petition:

1. The Supreme Court directed the High Courts and trial courts not to make such observations in situations of rape and sexual assault which would trivialize the anguish endured by the victim and impair their dignity.
2. The courts should not aim at compromises such as encouraging marriage between the accused and the prosecutrix and it should not be considered a judicial remedy. Compromises like this go against a woman’s honour and dignity. The petitioner cited the case of State of Madhya Pradesh v. Madanlal¹ in support of his claim.
3. The appellants further urged that no judge make any remarks or observations in the ruling that would reflect their prejudices and harm the woman’s dignity.
4. In circumstances of sexual assault, no such restriction should be imposed that permits the applicant to see the complainant or her family members. The court was requested to provide gender sensitization directives for the bar and bench, as well as law students.
5. Also, under Sections 437 and 438 of the Cr. P.C, the court was asked to set instructions on legally feasible bail terms.

Issues before the Court

• Can a compromise be struck between the accused and the victim in such instances?
• Is it acceptable for courts to issue such orders, and if so, what effect will such judgments have on society?
• Do such directions constitute to conduct of the trial in an unfair manner?
• Can the accused be permitted to meet the survivor or any of the members of her family?
• What, most importantly, should be the guidelines that courts should follow when granting bail and anticipatory bail?

Decision of the Court

In rape and sexual assault cases, the court clarified that no compromise can be made or even considered under any circumstances because it would be against her honour. Courts and other law enforcement authorities are intended to be neutral agencies and are tasked to guarantee the fair conduct of the trial by preserving impartiality and neutrality. And such techniques in rape and sexual assault trials would shatter rape survivors’ faith in the court’s impartiality. The court also noted that women’s status and society’s attitude toward them are both poor, and they suffer greatly. They are already experiencing numerous problems in their life for being a woman in our culture.

Judgements set precedents that the entire society adopts at different stages: By judicial decree, orders such as tying Rakhi on the accused’s wrist transform the molesters into brothers, reducing and degrading the charge of sexual harassment. Therefore, the use of reasoning/language which lessens the offence and seeks to belittle the victim is notably to be avoided under all circumstances. The law does not allow or condone such behaviour, in which the survivor may be traumatized several times or forced into some form of non-voluntary acceptance, or be pushed by circumstances to accept and condone behaviour that is a major violation.

The petitioners urged that the High Court’s decision should be overturned. The petitioners argued that Sections 437 (3)(c) and 438(2)(iv) of the CrPC permit courts to impose whatever condition they see proper in the public interest, but that the conditions must be consistent with the other provisions. When considering cases of rape and sexual assault, the court in Ramphal v. State of Haryana² concluded that compromise is irrelevant. The petitioner also requested that no judgement or order be passed by the court that could affect the dignity of women or the fair and unbiased conduct of trials, citing several cases where the apex court has rejected the idea of compromise on the grounds that it is antithetical to the woman’s honour and dignity and that it disparages and downgrades otherwise heinous crimes, implying that such offences are remediable by the judicial system.

The intervenors’ counsel argued that the court had the competence to impose sanctions under Sections 437(2) and 438. Requirements come in a broad variety of forms, and the court cited a number of cases in which judges imposed specific conditions for granting bail.

In its order, the Supreme Court framed various guidelines. These are as follows:

1. Contact between the accused and the complainant should never be allowed as a condition of bail, and if bail is granted, the complainant should be informed as soon as possible, along with a copy of the bail order being delivered to her within two days.
2. Bail conditions must precisely adhere to the stipulations of the Cr.P.C., and the order shall not represent patriarchal attitudes toward women.
3. Any offer to the accused and victim for a compromise, such as getting married or mandating mediation, should be ignored since it is outside the court’s authority.
4. The court has ordered a module as part of every judge’s basic training to ensure that judges are sensitive while considering cases involving sexual offenses and to minimize ingrained societal bias and sexism.
5. The National Judicial Academy has also been urged to integrate gender sanitization as soon as feasible in the training of young judges.
6. Similarly, the Bar Council of India has been mandated to incorporate gender sanitization in the LL.B. curriculum and as a mandatory topic in the All-India Bar Exam syllabus.

The Supreme Court commended the petitioner for his insightful ideas and overturned the Madhya Pradesh High Court’s bail terms. The court has established certain criteria in this regard. It also agreed to the recommendations for a gender sensitization curriculum in law schools, as well as for the bar exam and introduction training for newly appointed judges.

Conclusion

The victims of sexual abuse have always been blamed on Indian society. Women have been questioned repeatedly about their behavior, clothing choices, attitude, and when they plan to leave their homes. During trials, judges have frequently reinforced this practice by questioning the victim and making remarks that stereotype particular behaviors and threaten to disrupt the trial. With the Supreme Court openly criticizing such behavior on the part of the courts, hope for judicial reform has been reignited. Gender sensitization seminars will also aid in raising awareness of the issue among legal professionals.

By delivering this order, the Supreme Court has established a significant precedent for courts to follow in dealing with sexual assault victims in the future. Discussing the faults of a patriarchal culture has set an example for its enormous audience. This will go down in history as a significant step toward women’s independence. It is hoped that if the standards are followed, we will not see such arbitrary conditions in judicial orders in the future.

Almost certainly that judges assume the most essential part as the educator, as the defender, and as the watchman, and anything they say turns into the points of reference that is then trailed by lower courts in their decisions, and consequently it turns out to be vital for the judges to take the most extensive level of care while offering any expression which influences the actual premise of legal executive and confidence of individuals. In cases connected with the assemblage of ladies and particularly in sexual offenses cases, even little mistakes either as a judgment or any assertion made by courts might prompt genuine offense against the survivors. There have been different examples of orientation related cases as of late when courts have believed the victim to make split the difference by permitting the accused to marry her or as in the present case by requesting him to get Rakhi tied on his wrist by the victim or by making some other split the difference as the court might coordinate. Such translations are horrendous in nature and show the quality of judges towards the ladies yet as it is said Judiciary is a self-recuperating process, present judgment by Supreme Court validated the explanation. Outlining the guidelines for orientation sterilization and adding it to the curriculum of LLB will assist the legal advisors with instilling the impartial and nonpartisan quality towards the ladies which will most likely assist the victims in fair direct preliminary with practically no dread on their part.

Intentional or otherwise, such comments by trial courts and high courts should be avoided at all costs. Judicial stereotyping is another term for this. When judges attach specific attributes to someone based on their gender, religion, caste, or race, this is known as judicial stereotyping. Judges often reinforce hazardous prejudices as a result of this, rather than questioning them as they are intended to. Because of the vast audience that court declarations serve; such remarks can have a greater social impact. Stereotyping also has the potential to undermine the judge’s impartiality, obstructing a fair trial. Creating rape myths or an idealized picture of a sexual assault victim also undermines the incident’s credibility and the harm suffered by survivors of sexual assault who do not fit the public image of a chaste lady.

Women are underrepresented in the legal profession, and women lawyers frequently experience discrimination and discriminatory remarks. As a result, in order to assure gender-biased-free judgments, the first step should be to create an equal environment within the institution and raise awareness about the issue. The answer to these ills comes from public discourse and keeping organizations with the potential to make a difference responsible. Such sexist judgments should be condemned and held up as an example of what is not acceptable behavior.

Citations:

1. (2015) 7 SCC 681
2. 2019 SC 1716

This case analysis is done by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.

Case Number

CRL.A. 157/2013

Equivalent Citation

247 (2018) DLT 31

Bench

Justice S Muralidhar, Justice IS Mehta 

Decided On

November 30, 2017

Relevant Act/Section

• Code of Criminal Procedure, 1973
• The Indian Electricity Act, 1910
• The Indian Penal code
• The Companies Act, 1956

Brief Facts and Procedural History

An exhaustive judgment given on September 15, 2016, allowed the allure. Notwithstanding, on that date, the Court gave a different choice featuring three worries that emerged in a bigger setting and selected Prof. (Dr.) G.S. Bajpai, Professor of Criminology and Criminal Justice and Registrar, National Law University, Delhi, as amicus curiae to give guidance.

Issues before the Court

• Is the substantive law and procedure relating to the default in payment of a fine?
• Whether the existing law on suspension of sentence under Section 389 CrPC?
• Whether there is any provision that may enable the Court to suspend the order of conviction as normally what is suspended is the execution of the sentence?

Decision of the Court:

The Supreme Court communicated in Palaniappa Gounder v. State of Tamil Nadu¹ that “the fine discipline ought not to be pointlessly lavish”.

“However, there is the capacity to integrate a sentence of death or life imprisonment with a sentence of fine,” it was added. “That power should be polished with caution, considering that the life sentence is an outrageous discipline to force, and adding a fine to that grave discipline is not completely resolved to fill any accommodating need.”.”

The Supreme Court reaffirmed on account of Shantilal v. the State of M.P. that there was a total abuse of the arrangement of frameworks in Sections 63 to 70 IPC, causing legal to notice the instance of Shahejadkhan Mahebubkhan Pathan v. the State of Gujarat, where the Supreme Court totally abused the arrangement of frameworks in Sections 63 to 70 IPC.

Nonetheless, detainment for non-installment of fines is in another equilibrium. In the place where such a sentence is implemented, an individual is supposed to be detained in light of the fact that the person can’t pay the fine or won’t pay the fine. We are of the assessment that it is the occupant of the Court to keep an assessment of the case, the conditions under which it is held, the area of the case, the litigant, and other significant contemplations, for instance, the monetary conditions of the respondent in regard of and how much the offense prior to requesting that the culprit endure detainment when the individual in question is fined. The arrangements of Sections 63 to 70 of the IPC specify that the punishment rate ought not to be brutal or nonsensical. We additionally stress that in the case of a basic term of detainment, outlandish fines ought not to be forced by some other means than uncommon offenses. “

Clearly, no preparation is honored with use and purified in time that can’t be permitted to win in a circumstance where it attempts to cause disgrace. Each activity of the Court should be trailed by its governmental policy regarding minorities in society because of authentic worries about uniformity. Preparing not to give bail to an individual condemned to life detainment was going on in the High Courts and in this Court on the premise that assuming an individual is considered fit for preliminary and condemned to life detainment, the person ought not to be delivered. , as long as his endless sentence can be saved, yet the fundamental reason for this preparing was that the enticement of such an individual would be disposed of throughout some undefined time frame, so it was expected that he, at last, appeared to be dependable, he would have no need to endlessly remain in jail. The thought of this preparation may not have any significant bearing in the event that the Court isn’t in that frame of mind of interest for five or six years. Without a doubt, it would be a wrongdoing to compare and save an individual from jail for a time of five or six years for wrongdoing that at last seems to have not been carried out. When could the Court at any point pay him for his apparently outrageous captures? It would be fair regardless for the Court to tell the person: “We have admitted your enchantment as we suspect you are at legitimate fault for your appearance, yet tragically we have not had the potential chance to hear your temptation for a long time and, subsequently, up to this point. We hear your enticement, you ought to remain in jail, regardless of the way that you are straightforward? “the adjudicator could never have been overwhelmed by regret while eliminating such an individual in the wake of hearing the enticement? Could it not be an assault on his feeling of equity? in the past it ought to be reconsidered for quite a while as this Court isn’t in that frame of mind of hearing the temptation of the denounced as soon as possible, the Court ought to, except if there is valid justification to make a move regardless, delivering the indicted individual in situations where exceptional leave is taken into account the respondent to apply for conviction and sentence. “

Section 389 (1) states that in the repercussions of any allure against a respondent, the Court of Appeal may because it must be recorded as a held duplicate, demand that the sentence or allure be suspended in like manner, guaranteeing that he had the power, to be delivered on bail, or on his bond. This proviso acquaints the non-select power with suspending the condemning and award bail and notwithstanding suspending the activity of the basic allure.

This issue was completely inspected by a three-judge bench of this Court in Rama Narang v. Ramesh Narang and Ors.²

The legal position, appropriately, is clear that the Court of Appeal may suspend or grant an application for sentencing. However, the person wishing to remain guilty must clearly state the consideration of the Court reversing the consequences of his or her conviction. Unless the Court’s decision is based on the possible consequences of a conviction, the convicted person will not be able to apply for conviction. In addition, the reward for remaining guilty can be converted to extraordinary cases depending on the shocking facts of the case. “

The legal status of the Supreme Court under Section 389 of the CrPC is very clear, it is enough for this Court to repeat it.

There is a real need, right, for a formal (proper) administration to provide relief and rehabilitation for the injured through extrajudicial executions and arrests. Whether this should be a law that governs everything or a system that specifically addresses the needs of the survivor, and those who are unjustly imprisoned, including the family and guardians of the detainee, or these should be governed by different rules or arrangements for discussion, consideration, and consultation with The purpose of the article is to pay for those who are unjustly detained, questions about the circumstances and circumstances in which such assistance can be obtained, in what structure and at what stage and are matters for consideration. This is the best work left in the main case of a body tasked with informing government officials of control measures expected to fill an undeniable hole.

The Court, appropriately, compels the Indian Law Commission to attempt a thorough investigation of the matter referred to in paragraphs 11 to 16 of this application and to make its recommendation to the Government of India.

Conclusion

In this case, the Delhi High Court expressed profound concern over the plight of innocent people who have been unfairly convicted and imprisoned for crimes they did not commit. The Court emphasized the urgent need for a legislative framework to provide relief and rehabilitation to victims of wrongful prosecution and incarceration and urged the Law Commission to conduct a thorough review of the aforementioned issues and submit recommendations to the Indian government.

In the current state of the criminal justice system in the country, an adequate reaction from the state to victims of a miscarriage of justice resulting in erroneous prosecutions is absent. There is also no statutory or regulatory framework detailing the state’s approach to the problem.

According to the solicitation made by the court, the Law Commission of India introduced a report to the Government of India in August 2018 named “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies.” In this paper, the point is analyzed with regard to the Indian law enforcement framework, and the expression “wrongful prosecution” is suggested as the limit for a miscarriage of justice, rather than “wrongful conviction” and “wrongful imprisonment.” ‘Wrongful prosecution’ alludes to circumstances in which the blamed isn’t blameworthy for the wrongdoing, however, the police and additionally prosecution are occupied with bad behavior in exploring or potentially indicting the individual.

It would cover both cases in which the person served time in jail and those in which he did not; as well as those in which the accused was found not guilty by the trial court or was convicted by one or more courts but was ultimately found not guilty by the Higher Court. The report provides an outline of the various legal remedies and evaluates their shortcomings (also noted by the High Court in the aforementioned Order).

As a result, the Commission recommends enactment of a specific legal provision for wrongful prosecution redress – to provide monetary and non-monetary compensation to victims of wrongful prosecution within a statutory framework (such as counseling, mental health services, vocational / employment skills development, and so on). The Report lays out the core principles of the proposed framework, including defining “wrongful prosecution,” or cases in which a claim for compensation can be filed, naming a Special Court to hear these claims, the nature of the proceedings – timelines for deciding the claim, etc., financial and other factors to be considered in determining compensation, provisions for interim compensation in certain cases, and removing disqualification due to wrongful prosecution.

Hence, a legal (ideally legislative) framework for giving relief and rehabilitation to victims of wrongful prosecution and incarceration is urgently needed. In addition to the topic of paying persons who have been unfairly imprisoned, consideration should be given to the situations and conditions under which such relief would be available, as well as the form and stage at which such relief would be provided.

Citations:

1. (1977) 2 SCC 634
2. (1995) 2 SCC 513

This case analysis is done by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.

Case Number

Transfer Case (civil) 92-95 of 2002

Equivalent Citation

2004 (2) Mh.L.J. 1090

Bench

• Chief Justice Vishweshwar Nath Khare
• Justice Brijesh Kumar
• Justice Arun Kumar

Decided On

April 8, 2004

Relevant Act/Section

• Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002
• Essential Services (Maintenance) Ordinance Repeal Act, 2001
• Transfer of Property Act, 1882

Brief Facts & Procedural History

Here, the constitutionality of SARFAESI was challenged, particularly Sections 13, 15, 17, and 34, on the grounds that they are arbitrary and unjustified.

The Industrial Development Bank of India (for short, ‘the IDBI’) issued a notice to Mardia Chemicals Ltd. on July 24, 2002, under Section 13 of the then-current Ordinance, requiring it to pay the amount of arrears indicated in the notice within 60 days, failing which the IDBI, as a secured creditor, would be entitled to enforce the security interest without the intervention of a court or Tribunal, using all or any of the measures contained in sub-section (4) of S The petitioner was also prohibited from selling, leasing, or otherwise transferring any of the secured assets.

Other financial institutions and banks issued similar notices to other parties who filed petitions in various High Courts under the terms of Section 13 of the Ordinance/Act. This was united with a number of other writ petitions filed in several High Courts contesting the constitutionality of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act of 2002.

The petitioners argued that the Recovery of Debts Due to Banks and Financial Institutions Act 1993 was sufficient to address the difficulty created by NPAs and that the current statute was unnecessary. It is debatable whether the Court should delve into the necessity of a statute while considering its constitutional legitimacy. “The Parliament and Legislatures composed as they are of the Representatives of the people are supposed to be cognizant of the requirements of the people and what is good or harmful for them,” the Supreme Court has previously decided.
The Court is unable to sit in judgment of their wisdom… A law passed by Parliament or a state legislature can be overturned for two reasons:

1. inadequacy of legislative authority
2. infringement of any constitutional rights¹

In BALCO Employees Union v Union of India², the Supreme Court has ruled that the right place for discussing policy issues is the legislature, not the courts.

In light of the Court’s previous pronouncements, it is evident that the question to be answered is whether the legislation is constitutional. Any discussion of whether a statute is required, particularly in light of another Act whose scope is not in question in this case, was superfluous. As a result, the Court declined to hear the case.

Many petitioners argued that the existing rights of private parties under a contract cannot be interfered with, particularly by putting one party in a more advantageous position than the other. In the present case, for example, in a matter of private contract between the borrower and the financing bank or institution, the borrowers’ rights have been curtailed and enforcement of secured assets has been provided without the intervention of the court, denying them the remedy available under the law by approaching the civil court.

The Appellants are vague on where they find the legal validity of their claim. The Honourable Supreme Court has pointed out that, unlike the US Constitution, there is no bar to prospective contract invalidation in India, and hence such a statute is completely constitutional.³

Indeed, the 44th amendment removed the right to property as a basic right from the Constitution, leaving it only as a constitutional right. Indeed, even while the right existed in part III, the courts ruled that absolute contract freedom, as defined by the idea of leissez faire, was no longer valid.⁴

The Appellants have also been unable to locate the rights under Art 19(1)(g) and Art 298. The Supreme Court has ruled that these articles are subject to reasonable constraints and that what is acceptable is to be interpreted in the public interest, regardless of how onerous the restrictions are on the individual’s interests.⁵

In light of these precedents, it’s difficult to identify where the appellants’ reasoning originates. The respondents’ counsels, on the other hand, have not taken a position on the Constitution’s freedom of contract or right to trade, but have pointed out that a similar argument has been raised in a different context, namely statutes providing relief to agricultural borrowers, and has been repeatedly rejected.

It has been contended that certain facts must be determined before the power u/s.13 can be used, such as whether the person to whom notice is given is liable to pay, the magnitude of the liability, and so on. Furthermore, issues such as the law of limitation and bar under consortium agreements, set-off/counterclaim claims, creditors defaults as bailees or failure to disburse credit on time, the changeability of penal interest or compound interest, non-appropriation of funds already paid, and so on and so forth must be resolved.

So, using case law that will be covered in the main project, it was claimed that a lis exists in such a case and that the ability to resolve a lis is a judicial or quasi-judicial power, not solely an administrative function. As a result, a suitable forum must be established to resolve all such disagreements at an early stage.⁶

The statutory provision becomes arbitrary, procedurally, and substantively unfair if such a forum is not established. This is a false argument based on facts. S.13 does not preclude the use of any judicial venue; it just states that a judicial remedy can be sought only after the secured creditor has used his powers under s.13 (4). This is entirely correct. Many legislations provide for the use of a forum after the aggrieved party has exhausted self-help options.

It was also pointed out that the provisions of s.13 generate some practical challenges that could lead to serious legal errors. Section 2(f) of the Act, for example, specifies that the meaning of the term “borrower” includes the guarantor. A guarantor is relieved of his commitment under Section 135 of the Contract Act in certain circumstances. Now, if a discharged guarantee receives a notification under Section 13(2) of the Act, he cannot approach the Court to show and establish that he is a discharged guarantor because Section 34 prohibits him from filing an action in the Civil Court. As a result, notice under Section 13(2) is unfavourable.⁷

These concerns have been addressed by Section 35 of the Securitization Act, which states that the Act’s provisions have precedence over all other laws. Finally, it was pointed out that under s.13 read with s.34, the borrower has no right to go to court before the lender employs the rights granted under s.13 (4), exposing him to arbitrary and potentially fraudulent lending practises. It was argued in defence of this section that because the asset cannot be sold for 60 days under Section 9 of the Rules, the borrower has the option of approaching the Tribunal within that time frame. The Court accepted the plaintiffs’ argument in part and added two riders to s.13. To begin with, it was held that the lender had an obligation to reveal the reasons for not accepting the objections or points expressed in response to the notice issued to them before taking action under Section 13 (4). Second, the Court made a comparison to an English mortgage, pointing out that enforcement proceedings under an English mortgage can be contested on the basis of fraud. This section is also subject to such provisions.⁸

Another point that the Court has overlooked is that a statute must be read in context and in pari materia as a standard rule of legislative construction. The present Act’s s.13 is pari materia with the State Financial Corporation Act of 1951’s s.29. Art 300A, 21, and 14 have all been challenged on the basis of this section’s constitutional vires, specifically that it provides no right of appeal. Though the matter was never heard by the Supreme Court, it was considered by a number of High Courts. The courts have consistently ruled that the Act itself reveals a clear aim and objective and that the power granted under s.29 is intended to carry out that policy, namely, the prompt collection of dues.⁹

Issues before the Court

• Is it possible to challenge the statute on the grounds that it was unnecessary to create it given the circumstances, especially when another statute was already in effect?
• Whether the terms or existing rights under a contract entered into by two private persons could be altered by provisions of law conferring one-sided powers in favour of one of the contracting parties?
• Whether or not Section 13 of the Act is unconstitutional?
• Whether the requirement that 75% of the amount owing to be paid before filing an appeal with the DRT is onerous and thus Section 17 of the Act unconstitutional?

Decision of the Court

In this case, the Supreme Court held that:

a) The Parliament’s superiority in deciding the need for legislation was emphasised.
b) The connection between the RDB Act and SARFAESI was rejected since the latter deals with the highly particular issue of nonperforming assets (NPAs) (among other differences such as the latter dealing only with secured creditors).
c) As a result, it is up to Parliament to decide whether or not legislation is required.
d) Section 13 was found to be constitutionally legitimate by the Court.
e) The secured creditor is only exercising his entitlement because the default that led to the sec 13 measure might be considered a “second default”—NPA + 60 days extra time to repay following notice.
f) Prior to the 2016 Amendment, Section 13 acknowledged the Right of Redemption in a sense. Rule 8 and 9 of the SI Rules stated that the bank must serve a notice confirming the sale of secured property and that the borrower may pay off the obligation and reclaim possession at any point prior to the actual sale
g) While the Supreme Court confirmed the constitutionality of the section, it pushed hard for borrowers to have the right to representation.
h) The Supreme Court determined Section 17(2) to be arbitrary, and ordered that the heading be altered from “appeal” to “application.”

Impact of the Judgement

1. Section 13 now states that the bank must evaluate all of a borrower’s representations and respond within seven days (which was later changed to 15 days).
2. Within section 17, the word “appeal” was replaced by “application,” despite the fact that the marginal header remained the same (wow). In 2016, the appeal was superseded by an application in the marginal heading.
3. DRTs now have jurisdiction over the rights of tenants in a security property. In such instances, the property is given to the person who files the application (if he meets the requirements).
4. Section 18 was also considerably amended. When filing an appeal with the DRAT, you must deposit 50% of the total cost, which can be lowered to 25%. DRT was likewise granted a similar waiver right under Section 17.

Citations:

1. State of Andhra Pradesh v McDowell, AIR 1996 SC 1627
2. AIR 2002 SC 350
3. Raghubir Dayal v Union of India, AIR 1962 SC 263
4. YA Marmade v Authority under Minimum Wages Act, (1972) 2 SCC 108
5. Krishan Kakkanth v Government of Kerala, (1997) 9 SCC 495
6. Kihoto Hollohan v. Zachillhu & Ors1992 Suppl. (2) SCC p. 651 and Associated Cement Companies Ltd v. P.N. Sharma (1965(2) SCR p. 366 at pages 386-87).
7. Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., 1997(5) SCC
8. Adams v. Scott, (1859) 7 WR (Eng.) 213 (Z49)
9. K Surendranathan v Kerala Financial Corporation AIR 1988 Ker 330

This case analysis is done by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.

Equivalent Citation

[1992 SCR (1) 686, 1992 SCC Supl. (2) 651]

Bench

By Hon’ble Justice Sharma, L.M.,
By Hon’ble Justice Venkatachalliah, M.N.,
By Hon’ble Justice Verma, Jagdish Saran,
By Hon’ble Justice Reddy, K. Jayachandra and
By Hon’ble Justice Agrawal, S.C

Date of Judgment

February 18, 1992

Provisions Involved

Articles 102(2), Article 122(1), Article212(1), Article 368 of Constitution of India

Introduction

A constitution is a written document that contains rules, laws, and regulations for the government of a country. The Indian Constitution is regarded as the country’s supreme or “grundnorm” law. Its preamble speaks of people’s sovereignty, democratic polity, justice, liberty, equality, and brotherhood, all of which ensure the individual’s dignity as well as the nation’s unity and integrity. The Preamble is based on Nehru’s beliefs, which constituted the foundation for the constitution’s construction After the constitution was created, it didn’t take long for political insiders to convince Indian framers. Following Nehru’s death, India experienced a decline in political morals and an unpleasant increase in political corruption. The disorderly floor-crossing was a blow to the electoral system and weakened the government’s three organs. Parliament passed the Constitution (Fifty-Second Amendment) Act in early 1985, making defections illegal.

Factual Observations

The constitutional legitimacy of the Tenth Schedule established by the Constitution (Fifty-Second Amendment) Act, 1985, was challenged in the case of Kihota Hollohon v. Zachilhu and Ors. Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions, and other proceedings presenting common questions were all heard jointly, bringing the petitioners together. The Constitution (Fifty-second Amendment) Act substituted the tenth schedule for four articles of the Constitution, namely 101(3)(a), 102(2), 190(3)(a), and 191(2). In a 3:2 judgment in the case, the Hon’ble Supreme Court upheld the constitutional legitimacy of the Anti-Defection Law. Justices M.N. Venkatachaliah, K.J. Reddy, and S.C. Agrawal made up the majority, while Justices L.M. Sharma and J.S. Verma made up the minority. Simultaneously, the Supreme Court ruled that the speaker’s directives under the law barring an MLA from serving because of defection are subject to judicial review.

Issues Raised

1. Whether the changes made by the 52nd amendment are legally acceptable?
2. Whether the additions made by the 52nd amendment have constitutional validity?

Applicability of Doctrine of Severability

As stated in the definition itself, the doctrine of severability can be applied to a composite amendment that contains amendments that do not require ratification by States as well as amendments that do require such ratification, and the amendment can be upheld in respect of the amendments that do not require ratification and are within the competence of Parliament alone by applying the doctrine of severability. Only the revisions to the proviso’s provisions that require approval must be struck down or declared illegal. The severability test asks the Court to determine whether the legislature would have adopted the legislation at all if the severed element was not a part of it, and if what remains after severance can stand alone and is functional.

The doctrine of severability applies when a piece of otherwise lawful legislation contains a provision that is invalid due to a lack of legislative competence, and the invalid section is severable, leaving the remaining valid provisions intact. This theory does not apply where legislation is invalidly enacted because of non-compliance with a mandatory legislative procedure, such as the mandatory special procedure for exercising constituent power. The theory does not apply to legislation that has not yet been enacted. Even if it may be feasible to keep a stillborn alive by surgical skillfully removing a congenitally faulty portion, it is not possible to infuse life into a stillborn referred in The Bribery Commissioner v. Pedrick Ranasinghe¹.

Laws/Provisions Involved

Schedule 10
The first paragraph begins with definitions, the second with disqualifications, the third with divisions within the party (now deleted by the 2003 amendment to the constitution), the fourth with a few disqualifications that do not apply just in mergers, and the fifth with some exemptions. The sixth and seventh paragraphs state who will resolve disputes and restrict courts from hearing concerns about a member’s disqualification, and finally, the last paragraph allows a speaker to make rules for a House to give effect to the provisions of the Schedule.

Most of these provisions are subject to adjudication and interpretation by the courts of the land. Paragraph 2, which outlines a member’s disqualifications, is perhaps the one provision that has been scrutinized by the courts.

Ratio Decidendi

People’s lifestyles shape the law’s profile, not the other way around. A finality clause is not a magical legislative incantation that prevents Judicial Review from proceeding. A decision’s statutory finality assumes and is dependent on its adherence to the law. The scope of judicial review under Articles 136, 226, and 227 of the Constitution in relation to an order made by the Speaker/Chairman under would be limited to jurisdictional errors, such as infirmities based on constitutional mandate violations, mala fides, non-compliance with natural justice rules, and perversity. The courts follow the notion that, notwithstanding a finality provision, it is open to the court to determine whether the action of the challenged authority is ultra vires the powers conferred on it. An action can be ultra vires if it is carried out in violation of a mandatory provision of the law granting the authority the ability to do so. If the authority’s powers are vitiated by mala fides or a colorable use of power based on extraneous and irrelevant considerations, it will be supra vires.

Case Law Referred

Eight sections of the Bombay Prohibition Act, 1949 were found illegal by the court in State of Bombay v. F.N. Balsara² on the grounds that they were in violation of certain constitutional provisions and essential freedoms. The Supreme Court ruled that the sections of the law that were declared unconstitutional were valid because they were not inextricably linked with the remainder of the Act, they were severable from the rest of it. It was one thing to say that the Legislature would not have enacted the Act, but it was another to say that the Legislature would not have enacted it. It would be impossible to pass the Act without adding the elements that were judged to be illegal.

Likewise, the Supreme Court stated in A.K. Gopalan v. the State of Madras³ that if a law is unconstitutional, just the part that is unconstitutional will be declared void, not the entire law, and every effort should be made to save as much of it as possible. If the invalid part’s omission has no effect on the character or structure of the document, it will be considered a severable legislative object.

Judgment

The minority judges held that the Constitution was violated because the Constitutional scheme for deciding on questions of disqualification of members after being duly elected contemplates adjudication of such disputes by an independent authority outside the House, namely the President or Governor, in accordance with the opinion of the committee, all of whom are high Constitutional functionaries.

The Election Commission came to the same conclusion as the minority judges in this instance. It issued suggestions in 1977, recommending that disqualification for defection be referred to the Election Commission for an opinion to be given to the President or Governor, because the matter might potentially be, and as with other disqualifications alluded to in Articles 102 and 191 of the constitution, the President or the Governor will act on the Election Commission’s recommendation.

As a result, it was determined that paragraph 6 of the Tenth Schedule did not create a non-justiciable territory. The Speaker/power Chairman’s to resolve disagreements could be considered judicial. The ‘finality clause,’ which prepared the way for the majority to prevail in the verdict, is an important construction.

Own Analysis/Opinion

The Anti-Defection Law was enacted to counteract the “evil of political defections.” However, the phrase “voluntarily giving up membership in a political party” must be defined more clearly. The President/Governor should make agreements under the Tenth Schedule based on the Election Commission’s binding advice. Disqualification should be limited to situations in which a member voluntarily resigns from his political party, abstains from voting, or votes against the party whip in a confidence/non-confidence vote.

The law that has prevented individual defections must now be used to prevent mass defections. It’s also necessary to challenge the speaker’s function. For his tenure, the speaker is reliant on the support of the legislature’s majority. As a result, he does not meet the criteria for an ‘individual adjudicatory body.’ It is not practical to repeal the Anti-defection law completely, but the long-term solution is to keep a check on political culture, and legislators who act in contempt or with mala fide intent should be voted out in subsequent elections, as the ultimate agency in the world’s largest democracy rests with the Indian people. That’s why the doctrine of severability has made it easy to combat with kind of issues and help in avoiding any kind of misuse of arbitrary powers.

The president of the parliament, and the governor of the state legislature, may report the subject to the Election Commission under Articles 102 and 192, respectively. This appears to be the only way to avoid the speakers’ political biases in their judgments. If the government wishes to keep the current arrangement, the Supreme Court will have to exercise far more judicial review power over the Speaker’s decision under the Anti-defection law than the Supreme Court is willing to do now under the Kihota Hollohon case.

Concluding Observations

After analyzing the situation in the instant case, it can be concluded that the concerns of construction and severability are distinct because, where more than one reasonable interpretation is available, one upholding the legitimacy of the legislation and the other invalidating it, the former would be accepted, and in the situation that both are possible, the former would be accepted.

If this isn’t practicable, the court has no choice but to decide whether the entire statute should be repealed, stricken down, or the excellent and bad elements can be separated. Also, the Separation of valid and invalid provisions of a statute is not determined by whether the law is enacted in the same section or in distinct parts; what matters is the substance of the matter, which must be determined through a thorough examination of the Act as a whole, as well as the enactment of the applicable provisions. Despite its relative obscurity, the philosophy has far-reaching implications. On the one hand, rejecting entire legislation for one erroneous provision is the most invasive remedy; on the other hand, the Supreme Court is hesitant about amending statutes by removing portions of them. Prior to the passage of the Tenth Schedule, there was no such thing as a “political party” under the Constitution, but their existence is now acknowledged under the Anti-defection Act.

Citations:

1. [1965] AC 172
2. AIR 1951 SC 318.
3. AIR 1950 SC 27.

Analysis by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

Bench

By Hon’ble Justice Mr. Deepak Gupta and By Hon’ble Justice Mr. Aniruddha Bose

Advocates

Pritha Srikumar, Arunima Kedia (Appellant Side) & B.V. Balaram Das, Hrishikesh Baruah (Respondent’s Side)

Cases Referred

Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice [, SC (2014) 8 SCC 390]

Factual Observations

• A juvenile ‘X’, aged 16 to 18, is accused of committing an offense punishable under section 304 of the Indian Penal Code, 1860 (IPC)¹, which carries a maximum penalty of life imprisonment or up to ten years in prison and a fine in the first part and up to ten years in prison and a fine in the second part.
• The deceased in the car accident was the appellant’s brother. The Juvenile was between the ages of 16 and 18 at the time of the incident. The appeal to the Children’s Court was similarly turned down. Following that, the juvenile ‘X’ sought the High Court of Delhi through his mother, who ruled that because no minimum term had been set for the offense in question, it did not fall under the purview of section 2 of the Juvenile Justice Act, 2015. The deceased’s sister has now filed an appeal before the Supreme Court.
• Heinous, petty, and serious transgressions are defined in sections 2(33), 2(45), and 2(54). In the IPC or any other legislation in force, heinous offenses are those for which the sentence imposed is a minimum of 7 years in prison or more.
• Siddharth Luthra, counsel for the appellant, pointed out to the Court that the Juvenile Justice Act has left out the fourth category of offenses for which the minimum sentence is less than 7 years, or for which no minimum sentence is prescribed but the maximum sentence can be more than 7 years, including homicide not amounting to murder (offense of present case). He persuaded the Court to remove the word “minimum” from the definition of heinous crimes, allowing all crimes to be categorized as “heinous crimes” with the exception of minor and serious offenses.
• Furthermore, he argued that leaving out the fourth category of charges would result in absurdity, which could not have been the legislature’s objective.
• Mukul Rohtagi, a skilled senior attorney for the Juvenile, contended that the Court could not amend the law. He stated that the Court could not interpret the legislature’s meaning since a category of offenses was left out and that the Court could not interfere to close the gap in the Act.

Issues Raised

1. What does Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015 mean and how is it interpreted?
2. What is the uncertainty created by the word “minimum” in the Statute, and how is it interpreted?
3. How can a juvenile be treated under a category of an offense that is not defined in the statute but that the appellant argues should be included as an offense?

Contentions

APPELLANT

• The appellant claimed that there was one type of crime that was not addressed in the Act of 2015, claiming that heinous crimes are those that carry a “minimum” sentence of seven years or more.
• The unincluded category, it was said, would introduce absurdity, which the Legislature did not intend. The argument was that the Act had a gap in it that generated ambiguity and, as a result, did not specify anything.
• It was also claimed that the word “includes” was used in the definition of “heinous offenses”² implying that the definition is inclusive and encompasses things not mentioned in the definition.

RESPONDENT

• The appearing counsel argued that the Court was not in a position to rewrite the legislation and that the Court could not deduce the Legislature’s intent only based on an unincluded category of offenses.
• Even if the court had to fill the gap in the Act, it was claimed that this was not practicable in this case.

Difference of Opinion B/W Lower Court and SC

The crucial question before the court was whether the youngster should be tried as an adult or not. In this case, the child was over the age of 16 but under the age of 18 when he committed the offense.

Juvenile Justice Board– Because the youngster committed an offense under the definition of a ‘serious’ offense, the Juvenile Justice Board ordered that he be punished as an adult. The mother of the kid then petitions the High Court because the sentence for the offense was not passed under Section 2 (33) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

High Court– High Court stated that if a kid has committed any heinous offense such as rape or murder, which is punished for more than 7 years, a punishment similar to that given to an adult can be imposed. The order was found to be inconsistent, prompting an appeal to the Supreme Court.

Supreme Court– It was determined that this Act does not apply to the fourth category of offenses, which are penalized for more than seven years but do not include a minimum sentence or a sentence of fewer than seven years. As a result, under the context of this Act, this is referred to as a “serious offense”. This type of issue is to be dealt with according to this procedure unless the Parliament itself deals with it.

Judgment of SC

Luthra’s submission reasoned that it was not the Court’s responsibility to fill in the gaps and fix them. The Court stated that if the legislature’s purpose was clear, it might add or remove terms from the Act. However, in cases where the legislature’s intent is uncertain, the Court cannot add or remove words to provide meaning that the Court deems fit into the scheme of things. The Court was interpreting a statute, which had to be construed following its wording and intent.

The Court dismissed the appeal by resolving the issue and ruling that an offense that does not carry a minimum penalty of seven years cannot be considered terrible. The Act, however, does not address the fourth category of offenses, namely, offenses where the maximum sentence is more than seven years in prison but no minimum sentence or a minimum sentence of fewer than seven years is provided, shall be treated as ‘serious offenses’³ within the meaning of the Act and dealt with accordingly until Parliament takes a call on the matter.

Unless the Parliament acts with it, this type of matter must be dealt with using this approach. It was decided that the Legislature’s objective does not have to be the same as the judge believes it should be. When the statute’s wording is obvious but the Legislature’s intent is ambiguous, the Court cannot add or remove terms from the statute to give it a meaning that the Court believes fits into the scheme of things. However, if the Legislature’s aim is obvious, the Court can see behind the statute’s inartistic or clunky wording and determine the problem that must be handled under the code’s objectives. The court also ordered the High Court to remove the child’s name from the Child in Conflict with the Law registry. As a result, the case was resolved in favor of the child.

Ratio Decidendi:

The rationale or the ratio decidendi is one of the crucial aspects in analyzing the mindset behind a judgment. According to Section 14 of The Children Act, 1960, If the child offender has committed a heinous crime, the Juvenile Justice Board must conduct a preliminary examination to determine the child’s mental and physical capacity to commit the crime, as well as the child’s ability to comprehend the consequences of the crime and the circumstances in which the crime was allegedly committed. The Board has the authority to enlist the assistance of experienced psychologists, psychosocial workers, or other field experts. The statement makes it clear that the preliminary assessment will not focus on the trial’s merits or the child’s allegations.

Further, under section 15 of The Children Act, 1960 –
(1) There is a need to try the child as an adult under the provisions of the Code of Criminal The procedure, 1973 (2 of 1974), and pass appropriate orders after trial, subject to the provisions of this section and section 21, taking into account the child’s special needs, the tenets of a fair trial, and maintaining a child-friendly environment;
(2) There is no requirement for the child to be tried as an adult, and the Board may conduct an inquiry and issue appropriate directions in accordance with section 18. (2) In the case of a child in conflict with the law, the Children’s Court shall ensure that the final order includes an individual care plan for the child’s rehabilitation, including follow-up by the probation officer, the District Child Protection Unit, or a social worker.

In Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice…, on 28 March 2014⁴, only one of the five people was not sentenced to death by the session court on March 28, 2014, according to the Member Juvenile Justice… In their appeal, the petitioners demanded that the juvenile be prosecuted and punished alongside the other four defendants. The first appeal, which was dismissed by the Delhi High Court, was filed. Another appeal was filed with the Supreme Court, but it was dismissed. As a result, Dr. Subhramanian Swamy’s application was denied by the Supreme Court. Furthermore, the court dismissed the victim’s parents’ writ suit.

Concluding Observations:

After analyzing the situation in the instant case, while acknowledging that the court cannot legislate, the reasoning of the bench that if it did not address the issue, the Boards would have no guidance on how to deal with children who have committed fourth-category offenses is concluded to be to the point. The court stated, “Since two viewpoints are feasible, we would prefer to choose the one that is in favor of children.” The bench, therefore, invoked its authority under Article 142 of the Constitution to order that, as of the date the 2015 Act took effect, all children who committed fourth-category offenses to be treated in the same way as children who committed serious offenses. Still, there is a need to make some serious amendments in the BOOKS OF JUSTICE.

We all know the maxim ‘Salum Populi Suprema Lex’ which means ‘the welfare of the society is the supreme law’, but unfortunately the court failed to apply the same in the recent case. I believe that sending the accused to a reform center will not affect him because his parents, who were aware of his repeated infractions, did nothing to stop him and may be able to “buy the system completely.” I personally feel that these verdicts by the Apex Court only encourage teenagers to become criminals and nothing else. A perfect example of the same is NIRBHAYA CASE.

References:

1. Section 304 of the Indian Penal Code, 1860: Punishment for culpable homicide not amounting to murder
2. Defined in Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015
3. Defined in Section 2(54) of the Juvenile Justice (Care and Protection of Children) Act, 2015
4. Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice, SC (2014) 8 SCC 390.

Analysis by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

Bench

Justice Indu Malhotra, Justice L. Nageswara Rao

Date of Judgment

9th July 2020

Provisions

Order VII Rule 11(a) & 11(d), CPC, Section 73AA of Land Revenue Code, The Limitation Act, 1963

Cases Referred

Vidyadhar v. Manikrao [(1999) 3 SCC 573], Chandrashankar Manishankar vs. Abhla Mathur and others [AIR (39) 1952 Bombay 56]

Introduction

In Dahiben v. Arvindbhai Kalyanji Bhanusali & Ors., the Supreme Court of India stated that mere non-payment of the full amount of consideration cannot be held as a ground for cancellation of sale deed.

Factual Background

• The Supreme Court was considering an appeal from a Division Bench of the Gujarat High Court, which had upheld the Trial Court’s judgment admitting an O7R11 application and ruling that the Appellants’ complaint was prohibited by limitation. In the recent case, the plaintiff owned a piece of agricultural property in the hamlet of Mota Varachha, Surat Sub-District. According to Section 73AA of the Land Revenue Code, the land was subject to restricted tenure. The Plaintiffs applied to the collector of the district for permission to sell the property to Respondent 1. The collector allowed the property to be sold and set the sale price according to the jantri issued by the State Government. The purchaser was required to pay via cheque, with a reference to the payment in the Sale Deed. The plaintiffs sold the property to respondent 1 after obtaining all necessary permissions. Respondent 1 issued 36 cheques for the payment of Rs.1,74,02,000 towards the sale considerations in the favour of Plaintiff.
• Later, Respondent No. 1 got the Land from Plaintiff and sold it to a group of third parties, comprising Respondents Nos. 2 and 3, in a transaction dated April 1, 2013, for Rs.2,01,00,000.
• The Plaintiff filed a suit before the Principal Civil Judge of Surat in December 2014, more than five years after the Sale Deed was executed, alleging that the sale consideration for the Land had not been paid in full by Respondent No.1 and praying, inter alia (among other things), that the Sale Deed is declared void, illegal, and ineffective. Respondents No. 2 and 3 were impleaded in the complaint since the Land had already been sold to them and was in their possession at the time the suit was filed.
• The Plaintiffs claimed that they were completely illiterate, unable to read or write, and could only make a thumb imprint on the Sale Deed dated 02.07.2009. The Sale Deed was gotten without full consideration being paid. Just Rs. 40,000 had been paid through six checks by Respondent No. 1, and the rest 30 checks adding up to Rs. 1,73,62,000 were false checks.
• On the grounds that the Suit was precluded by limitation and that no cause of action had been disclosed in the plaint, the Respondent filed an Application for Rejection of the Plaint under O7R11 (Application for Rejection).
• The Trial Court determined that the time restriction for filing the lawsuit was three years from the date of the sale deed’s execution on July 2, 2009. The Trial Court further highlighted that the lawsuit was filed on December 15, 2014, and so was time-barred. The Trial Court dismissed the lawsuit and granted the Application for rejection. The Appellants sought an appeal with the Gujarat High Court after being aggrieved by the Trial Court’s decision, which in turn upheld the decision. As a result, Plaintiff petitioned the Supreme Court to set aside the High Court’s decision.

Issues Raised

1. Whether non-payment of the part of sale consideration is a ground for cancellation of registered sale deed?
2. Whether the case filed by Plaintiff is barred by the Limitation Act?

SC Analysis and Judgment

The Supreme Court outlined the law that applies while determining an application under Order VII Rule 11 CPC. The court cited Vidyadhar v. Manikrao¹ and Section 54 of the Transfer of Property Act, 1882, saying that the words “price paid or promised or part paid and part promised” indicate that actual payment of the entire price at the time of the execution of the Sale Deed is not a sine qua non for the sale to be completed. The Court stated that in the Plaint, the Plaintiffs established a case of claimed non-payment of a portion of the selling consideration and requested relief of cancellation of the Sale Deed on this basis. Even in case, the whole purchase price is not paid, as long as the paperwork is registered and signed, the sale is done, and the title transfers to the transferee under the transaction. If a portion of the sale price is not paid, the transaction’s validity is unaffected. The parties must intend to transfer ownership of the property in exchange for a price that can be paid now or in the future to be regarded as a sale. The Plaintiffs might have other remedies in law for recovery of the equity consideration but could not be allowed the relief of cancellation of the registered Sale Deed.

Further, the SC held that Plaintiff’s claim that it first learned of the alleged fraud in 2014 after receiving the index of the Sale Deed was completely false because receiving the index would not be a cause of action for initiating the complaint. It was also noted that Plaintiff had omitted the date of execution and registration of the Sale Deed on purpose. As a result, it determined that the present case was a classic situation in which the Plaintiffs tried to build up an artificial cause of action to bring the claim within limitation by skillful writing of the plaint and that it should be dismissed at the threshold.

In Chandrashankar Manishankar vs. Abhla Mathur and Ors.², it was held that the document’s recital indicating payment of the consideration may be false, but it doesn’t make the document invalid. The entire amount does not have to be paid for the sale to be effective, since Section 54 of the Transfer of Property Act stipulates that the price may be paid or pledged in whole or in part. The Court further concluded that if the consideration was not paid but the document demonstrates that there was an intention to pay, the document is not declared invalid because the consideration was not paid. If, on the other hand, there was no intention of paying any consideration, the document is null and void.

The bench so on held that the Plaintiffs’ current lawsuit is a misuse of the court’s procedure and devoid of any merit. In light of the foregoing discussion, the instant Civil Appeal is rejected, with costs of Rs. 1,00,000/- payable by the Appellant to Respondents Nos. 2 and 3 within twelve weeks of this Judgment’s date.

Conclusion

In the recent case, the court determined the fact that the parties should not waste the time of the court as already there is a huge number of cases pending before the court and the lawyers of the parties should reject the plaint at the threshold if it does not disclose any cause of action. Plaintiff should be diligent in safeguarding its legal rights and making sure that legal actions are started before the statute of limitations runs out. In addition, the plaintiff should make certain that the plaint is well constructed in order to highlight important problems. If the ownership of the property has been transferred to the other party, even if the money has not been paid in whole or in half, the party has no right to launch a lawsuit against the other, claiming that the contract is void or illegitimate. If the plaint is submitted beyond the deadline if the averments do not reveal a valid cause of action, the Courts will not hesitate to dismiss the case.

Citations

1. (1999) 3 SCC 573
2. AIR (39) 1952 Bombay 56

Analysis by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.