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A full bench of the Bombay High Court has held that a power distribution licensee cannot demand charges or consumption of electricity for a period of more than two years preceding the date of the first demand of such charges unless the amount of money owed is reflected in the electricity bill during the two-year period.

The bench comprised of Justice SC Dharmadhikari, Justice Bharati Dangre and Justice AM Badar. They were hearing a reference made to a larger bench after a single judge of the high court, while hearing a writ petition filed by the Maharashtra State Electricity Distribution Company Limited (MSEDCL), found two conflicting judgments of division benches of the high court.

The first judgment was passed by the bench of Justice FI Rebello and Justice Anoop Mohta in Awadhesh S Pandey vs. Tata Power and the second judgment was passed by the bench of Justice Ranjana Desai and Justice AA Sayed in Rototex Polyester & Anr. v Administrator, Administration of Dadra & Nagar Haveli (U.T.) Electricity Department, Silvassa & Others.

Case Background

According to the petitioner MSEDCL, the consumer who was using an industrial connection of three phase since 2003 has been paying electricity bills regularly. However, in December 2010, upon checking the meter installed at the premises of the consumer, it was noticed that there were errors in the multiplying factor. The MSEDCL issued a monthly bill dated February 8, 2011, for Rs.17,91,410. Thereafter, on May 10, 2011, a letter enclosing a final bill for the differential amount of Rs.28,37,845.25, after deducting the amount already paid, was raised for the period of September 2003 to December 2010. This is stated to be the final bill.

Aggrieved and dissatisfied with this bill, the consumer filed an application before the electricity ombudsman. However, the ombudsman passed an order in favour of the MSEDCL and held that this differential amount claimed is payable and that the said bill is legal and proper.

Thereafter, the consumer filed another application seeking quashing of the said bill which was allowed.

Multiplier Factor

Advocate General AA Kumbhakoni appeared on behalf of the MSEDCL and submitted that high tension consumers are supplied electric energy with voltage as high as about 11,000/22,000/33,000/EVH volts. If such high voltage/current supply is allowed to directly pass through an electric meter installed for measuring the quantity of electricity supplied, it would instantaneously burn or may explode.

Therefore, it is necessary that the electricity so supplied is converted by the transformation of current and voltage by providing Current Transformer and Voltage Potential Transformer units. In such cases, the actual electricity (with substantially reduced voltage and current) passes through the electric meter. The same is though proportionate to the one actually supplied, it is only a small portion of the electric energy actually supplied (like a miniature image). Thus, in such cases, the actual meter reading does not reflect the correct amount of electric energy supplied to the consumer. Resultantly, it becomes necessary to apply to such actual meter reading a proper multiplying factor so as to get the actual/correct amount of electric energy supplied to the High-Tension consumer, Kumbhakoni said.

Judgment

The court examined the Electricity Supply Act and noted-

"Section 56 deals with disconnection of supply in default of payment. Now, where the person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, then the power to disconnect is conferred and which power has to be exercised in the manner set out by subsection (1)."

Further, under Sub-Section 2, the consumer is covered-

"By subsection (2), the category or the beneficiary of electric supply, namely, the consumer, is covered. As far as that consumer is concerned, by an overriding effect, subsection (2) says that Section 56, which may have a marginal heading as disconnection of supply in default of payment, but so far as the consumer is concerned, no sum due from him under Section 56 shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrears of charges for electricity supplied. If this condition is satisfied, then alone the licensee shall cutoff the supply of electricity and not otherwise."

The court concluded that there was no conflict between the said two judgments and observed-

"We do not see how, therefore, there was any conflict for Awadesh Pandey's case (supra) was a simple case of threat of disconnection of electricity supply for default in payment of the electricity charges. That was a notice of disconnection under which the payment of arrears was raised. It was that notice of disconnection setting out the demand which was under challenge in Awadesh Pandey's case. That demand was raised on the basis of the order of the Electricity Ombudsman.

"Once the Division Bench found that the challenge to the Electricity Ombudsman's order is not raised, by taking into account the subsequent relief granted by it to Awadesh Pandey, there was no other course left before the Division Bench but to dismiss Awadesh Pandey's writ petition. The reason for that was obvious because the demand was reworked on the basis of the order of the Electricity Ombudsman. That partially allowed the appeal of Awadesh Pandey. Once the facts in Awadesh Pandey's case were clear and there the demand was within the period of two years, that the writ petition came to be dismissed.

In fact, when such amount became first due, was never the controversy. In Awadesh Pandey's case, on facts, it was found that after reworking of the demand and curtailing it to the period of two years preceding the supplementary bill raised in 2006, that the bar carved out by subsection (2) of Section 56 was held to be inapplicable. Hence there, with greatest respect, there is no conflict found between the two Division Bench Judgments."

"The Distribution Licensee cannot demand charges for consumption of electricity for a period of more than two years preceding the date of the first demand of such charges. In other words, the distribution licensee will have to raise a demand by issuing a bill and the bill may include the amount for the period preceding more than two years provided the condition set out in subsection (2) of Section 56 is satisfied. In the sense, the amount is carried and shown as arrears in terms of that provision," the court held.

Read the Judgment Here

The Supreme Court has reiterated that the principle of Res Judicata is applicable to Writ petitions as well.

In P. Bandopadhya vs. Union of India, a judgment of Bombay High Court was challenged before the Apex Court. The impugned judgment was passed in a writ petition filed by former employees in the Overseas Communications Service ["OCS"], a Department of the Government of India.The High Court dismissed their plea holding that they were not eligible to avail pensionary benefits under the Government of India, since they had served for less than 10 years on the date of their absorption into VSNL. It also held that the matter was squarely covered by the earlier decision of a Division Bench of the High Court in S.V. Vasaikar v. Union of India.

The bench comprising Justice Uday Umesh Lalit and Justice Indu Malhotra agreed with the High Court view and observed that the decision in S.V. Vasaikar was not challenged before the Supreme Court, and had thus attained finality. The court also noted the following observation in Constitution bench judgment in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra.

"The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32."

While dismissing the appeal, the bench added:

"Albeit the decision of the Constitution Bench was in the context of a Writ Petition filed under Article 32, it would apply with greater force to bar a Writ Petition filed under Article 226, like the one filed by the present Appellants, by the operation of the principle of res judicata."

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Chhattisgarh CJ AK Tripathi resigns after appointment as Member (Judicial) Lokpal, Justice PK Mishra appointed acting Chief Justice

As Justice Ak Tripathi tendered his resignation from the office of Chief Justice of Chhattisgarh High Court after his appointment as Member (Judicial), Lokpal, Justice PK Mishra has been appointed the Acting Chief Justice of the Chhattisgarh High Court.

In a notification of the Department of Justice, Ministry of Law and Justice dated March 22, 2019, it is stated that Justice PK Mishra has been appointed to perform the duties of the Chief Justice of the High Court of Chhattisgarh with effect from the date when Chief Justice Tripathi relinquishes charge of the office of Chief Justice.

Justice Prashant Kumar Mishra is the senior most judge of the Chhattisgarh High court. Born on August 29, 1964 at Raigarh (Chhattisgarh), Mishra enrolled as an advocate on September 4, 1987. He practiced law in District Court at Raigarh, High Court of Madhya Pradesh at Jabalpur and High Court of Chhattisgarh at Bilaspur and dealt with civil, criminal and writ branches of law. He was designated as a Senior Advocate by High Court of Chhattisgarh in January, 2005. He also served as the Advocate General for the State from September 1, 2007 till his elevation as a Judge of the High Court of Chhattisgarh on December 10, 2009.

Read the Notifications Here

Justice Thottathil B. Radhakrishnan has been transferred from Telangana High Court to Calcutta High Court, where he will be taking charge as the Chief Justice shortly.

In a notification issued today, the Central Government stated that the President of India has directed him to take charge on or before 6th April 2019.

The appointment comes after CJI Ranjan Gogoi wrote to Union Law Minister Ravi Shankar Prasad last week to act on the Collegium's January 10 resolution to transfer Justice Radhakrishnan to the Calcutta High Court. On February 19th, the collegium had reiterated its recommendation.

Justice Radhakrishnan was appointed as a Permanent Judge of Kerala High Court on 14 October 2004. After he served as Acting Chief Justice of the High Court of Kerala, for a brief period, he was transferred to the Chhattisgarh High Court as its Chief Justice. Thereafter, he was transferred to the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh. Presently, he is the Chief Justice of Telangana High Court.

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5970 Advocates on the Rolls of the Bar Council of Tamil Nadu and Puducherry, could not practice in any Court or Tribunal, until they clear Advocate Welfare Fund subscription dues.

Advocate Welfare Committee of Bar Council of India took this decision to suspend their practice in a meeting held last Thursday. The notification in this regard reads as follows:

"It is hereby informed that the Advocates Welfare (BCI) Committee has suspended the right of practice of 5,970 advocates in any court, tribunal or other authority till the payment of subscription under Rule 40, Part VI Chapter II of the Bar Council of India Rules vide Resolution No 242/2019 dated March 22."

On 30th January, the State Bar Council had cautioned Bar Associations regarding this non-payment of Welfare fund subscription.

Rule 40 of Chapter 2, Part VI of Bar Council of India Rules mandates every Advocate borne on the rolls of the State Bar Council to pay to the State Bar Council a prescribed sum every year towards the fund. Rule 42 empowers a Committee of three members constituted by the State Bar Council to pass an order suspending the right of the advocate to practise, if the advocate does not pay the amount or fails to show sufficient cause. Suspension ceases to operate when the said Advocate pays the subscription due along with late fee.

Advocates' Welfare Fund Act was enacted in 2001 for the constitution of a welfare fund for the benefit of advocates. The Act made it mandatory for every advocate practising, before the commencement of Act, to apply, within six months of the commencement of the Act, to the Trustee Committee for admission as a member of the Fund. An Advocate has to made such an application within six months of his enrolment.

The decision of the Bar Council of India to suspend the practise of advocates for defaulting payment of subscription dues of welfare fund has been challenged in the Supreme Court.

Advocate Welfare Committee of Bar Council of India took this decision to suspend the practice of 5970 advocates on the rolls of Bar Council of Tamil Nadu and Puducherry in a meeting held last Friday The notification in this regard read as follows:

"It is hereby informed that the Advocates Welfare (BCI) Committee has suspended the right of practice of 5,970 advocates in any court, tribunal or other authority till the payment of subscription under Rule 40, Part VI Chapter II of the Bar Council of India Rules vide Resolution No 242/2019 dated March 22."

The petition filed by Advocate Sabarish Subramanian states that no prior notice was served on the advocates before suspending their practice. The decision is applicable to advocates who are enrolled before 1993.The Bar Council used to collect the Advocate welfare fund once in 3 year from the advocates who enrolled before 1993. However, this rule was changed and from 1994 welfare fund subscription was collected along with the enrollment fees as one time affair at the time of enrollment.

The petition therefore states that the decision will affect the practise of advocates who have standing of 25 years and above. Many of them have well established practise by now, and the sudden suspension will lead to grave hardship and prejudice, the petitioner says. He points out that as a result of this decision, these advocates will not be able to appear in Courts and Tribunals from today.

"It is respectfully submitted that at the time of State Bar Council and Bar Council of India Election the member of Bar Council uses all latest technologies to reach out each members of the Bar to canvass their votes. However, to suspend 5970 advocates the State Bar Council and Bar Council of India not take any necessary steps to serve the warning notice to the concern advocates who defaulted their payment of Advocates welfare fund", states the petition.

Hearing an application for the transfer to itself of petitions over the Sabarimala Temple entry controversy pending in the Kerala High Court, the Supreme Court on Monday asked the government of Kerala to approach the High Court for the modification of the interim directions.

The petitions were filed in the High Court against the security measures adopted by the government like the deployment of police and declaration under Section 144 CrPC in the face of violent threats from extremist outfits against entry of women.

The petitions challenge the police arrangements and the prohibitory order as an invasion on the right to worship. Further, some allege excessive interference by the state government in the temple administration, and lack of amenities for devotees. Besides, there are pleas for police protection and security arrangements for women.

Last year in November, the High Court had ordered that "all unilateral restrictions imposed by Police except to the minimum required extent to meet the law and order situation shall stand deleted, particularly with regard to right of pilgrims to conduct "namajapam" and chant 'sharanamanthra'. So far as it does not amount to any protest or demonstration or design to indulge in any unlawful act or instigating others to indulge in any unlawful act, affecting the law and order situation, there shall be no intervention from the part of police adversely affecting the rights of pilgrims or as part of "Crowd Management Scheme". The Court also appointed a team of observers comprising two retired High Court judges and a police official in the rank of DGP to oversee the situation and to take spot decisions to implement its directions.

In this backdrop, the state government had approached the Supreme Court, stating that the directions issued by the High Court are contrary to the spirit of the Constitution Bench decision of the Apex Court delivered on September 28, 2018. The Government has stated that the Sabarimala issue has been politicised by right wing outfits; the holy chants of "sharana manthras" are being used as political slogans; bigots posing as devotees are creating law and order issues there.

The incidents of violence which occurred on October 17 and November 5 when a few women attempted entry were also narrated in the application. The interference by the High Court was claimed as affecting the measures adopted by the Government to protect genuine devotees.

Earlier on January 18, the bench headed by Chief Justice Ranjan Gogoi had directed the state of Kerala to ensure that Bindu and Kanaka Durga, the two women who had entered the Sabarimala Temple on Janaury 2, are provided "adequate security, round-the-clock". On that occasion, Senior Counsel Vijay Hansaria, for the state government, had advanced that the petitioners have already been given security, indicating a note from the DCP in that behalf." Not just these two, but 51 women-devotees have entered the Temple since then...", he had argued. However, the bench had not been inclined to entertain other prayers for a direction that menstruating women between the ages of 10 and 50 years be permitted to access the Temple without any hindrance and that the 'purification' rite carried out in the Temple post the entry of women be discontinued.

Subsequently, on February 6, a five-judge bench had reserved its verdict on a string of petitions seeking a review of the September, 2018 judgment.

Incidentally, on Monday, the same bench of Chief Justice Gogoi also dismissed a PIL challenging the fare of Rs. 49 for a bus ride to the top of the Sabarimala Temple. "Are we now going to decide how much the bus fare should be?", commented the CJ.

The Supreme Court on Monday dismissed a plea challenging the constitutional validity of an ordinance which makes the practice of instant 'triple talaq' a punishable offence.

A bench headed by Chief Justice Ranjan Gogoi dismissed a plea of a Kerala-based outfit and said it will not like to interfere.

The Muslim Women (Protection of Rights on Marriage) Ordinance was first notified on September 19 last year, hours after the Union Cabinet had cleared it.

Instant 'triple talaq', also known as 'talaq-e-biddat', is an instant divorce whereby a Muslim man can legally divorce his wife by pronouncing 'talaq' three times in one go.

The ordinance making the practice of instant 'triple talaq' a punishable offence was issued for the third time in less than a year on February 21.

The Supreme Court on Monday directed the Election Commission of India to explain on affidavit by Thursday its decision to cross-check the Voter Verifiable Paper Audit Trails (VVPAT) of only one randomly selected booth in each constituency.

The bench headed by Chief Justice Ranjan Gogoi also required the Commission to reply whether it is possible to increase the VVPAT sample survey in every assembly segment.

On March 15, the bench had issued notice on a petition filed by leaders from 21 political parties seeking a direction to the ECI to randomly verify at least 50 per cent votes using VVPATs in the polls to 17th Lok Sabha. The parties include the Congress, Nationalist Congress Party, Aam Aadmi Party, CPI (Marxist), CPI, Trinamool Congress, Samajwadi Party, Bahujan Samaj Party, Rashtriya Lok Dal, Loktantrik Janata Dal and the Dravida Munnetra Kazhagam (DMK).

It has been contended that the verification of only one will account for merely 0.44% of the votes polled and that the same would defeat the entire purpose of VVPAT, making it "ornamental" without actual substance.

Reference is made to the decision in Dr. Subramanian Swamy v. ECI [(2013) 10 SCC 500] which held that the VVPAT is an "indispensable requirement of free and fair elections".

In pursuance of the previous order of the court, a Deputy Election Commissioner was personally present on Monday to assist the court. When the bench seemed to favour an increase in the number of VVPATs, inquiring from the official if it was feasible, he replied that the ECI had not deemed it necessary.

"Then why didn't you bring in the VVPAT by yourself without the intervention of the court? Why had the ECI objected to the VVPAT arrangement then?...No institution, including the courts, can consider itself to be over and above suggestions, or that it is beyond the scope of improvement", observed the Chief Justice.

The Supreme Court Monday refused to entertain a plea challenging the Centre's Ordinance which restored the roster based reservation system for appointment of faculty members in higher educational institutions.

The pleas challenging the March 7 promulgation of 'The Central Educational Institutions (Reservation in Teachers' Cadre) Ordinance, 2019' came up for hearing before a bench of Justice S A Bobde and Justice Sanjiv Khanna.

The bench told the counsels appearing for the petitioner to approach the high court with the grievance.

"Why cannot you go to the high court?," the bench asked.

When one of the advocates said the issue will have ramification on entire country, the bench said, "Parliament legislation applicable all over India can be dealt with by the high courts. We are on the issue of jurisdiction. Why have you come here first?"

Advocate Gopal Shankarnarayanan, appearing for petitioners, said the Ordinance tends to nullify the apex court's order.

The top court in February dismissed the Centre's plea seeking review of its earlier verdict by which it had declined to interfere with the decision of the Allahabad High Court on the crucial quota issue.

While dismissing the review petition, the apex court said that individual departments and not universities or colleges will be considered as a unit for implementing reservation for SC/ST or OBC in appointing faculties members.

On January 21 this year it had dismissed the appeals of the Centre and the University Grants Commission (UGC) against the order of Allahabad High Court which had ruled that quota for SC/ST or OBC in posts of faculty will be calculated department-wise and not college or university-wise.

During the hearing on Monday, when one of the advocates said that the matter was urgent as it involves constitutional issues, the bench observed, "Every third matter here has a constitutional issue".

The apex court allowed the petitioner to withdraw the plea and granted him liberty to approach the respective high court.

As per the Ordinance, the new system will consider the university or college as one unit, instead of treating department or subject as one unit.

"The Cabinet has approved proposal for promulgation of The Central Educational Institutions (Reservation in Teachers' Cadre) Ordinance, 2019 to provide for the reservation of faculty in appointments by direct recruitment of persons belonging to Scheduled Castes (SC), Scheduled Tribes (ST) and Socially and Educationally Backward Classes (SEBL) in central educational institutions and for matters connected there with," Union minister Arun Jaitley had said at a press conference earlier this month.

The ordinance will ensure that constitutional provisions of reservation for SC, ST, and SEBL in the faculty recruitment will be protected and current impasse in recruitment would be resolved.

A series of protests took place over the issue by various students' and teachers' organisations urging the government to bring an ordinance to restore the 200-point roster taking college or university as a unit for reservation in teaching posts.

The University Grants Commission (UGC) had announced last March that an individual department should be considered as the base unit to calculate the number of teaching posts to be reserved for the SC and ST candidates, following an order by the Allahabad High Court in April 2017.

"Appointments are happening! As the Chief Justice, I am telling you that whatever is pending is pending before the Supreme Court collegium. There are almost 70-80 proposals before the Collegium and hardly 27 before the government", Chief Justice Ranjan Gogoi had said, while hearing a PIL seeking directions to fill up judicial vacancies.

The PIL by NGO Common Cause sought a direction that the names reiterated by SC collegium must be notified by Cent within 6 weeks. This prayer in the PIL is based on the principle in the 'Second Judges Case' that a name reiterated by the SC Collegium for judicial appointment is binding on the centre.

Despite the strong words by CJI Gogoi, three names reiterated by SC collegium during his tenure have not been yet accepted by the Centre.

The following are those names.

Amit Negi, Allahabad HC

Amit Negi's recommendation for elevation as judge of Allahabad HC was reiterated on December 4, 2018.

The Collegium resolution noted that Advocate Negi was recommended for elevation way back in in November, 2016. The proposal was, however, withheld by the Collegium in June, 2017, in light of certain inputs from CJ of Allahabad HC. Thereafter, the collegium under former CJI Deepak Misra had resolved to revive its earlier recommendation to elevate Advocate Negi to the Bench in August 2018. This recommendation was, however, referred back by the government to the CJI, for reconsideration.

Reiterating its proposal, the Collegium resolved, "The Collegium accordingly reiterates its recommendation dated 30th August, 2016, which was revived on 1st August, 2018, for appointment of Shri Amit Negi, Advocate as a Judge of the Allahabad High Court. The above proposal needs to be processed expeditiously."

No action has taken place on the reiteration made in December 2018.

Sandipan Ganguly, Calcutta HC

Advocate Sandipan Ganguly's proposal for elevation to Calcutta HC was reiterated by SC collegium on January 16 this year.

Advocate Ganguly had first been recommended on September 11, 2018, along with three Judicial Officers. His candidature was, however, referred back by the Department of Justice to the Chief Justice of India for reconsideration.

Rejecting the objections raised by the Centre, the Collegium, however, reiterated the proposal, resolving, "Since the Collegium does not find any fresh material in the file referred back to it for reconsideration of the above proposal, the Collegium is of the considered view that Shri Sandipan Ganguly deserves to be elevated to the High Court Bench. The Collegium accordingly reiterates its recommendation dated 11th September, 2018 for appointment of Shri Sandipan Ganguly, Advocate as a Judge of the Calcutta High Court."

P V Kunhikrishnan, Kerala HC

On February 12, the Collegium reiterated the proposal to elevate Advocate P V Kunhikrishnan as judge of High Court of Kerala.

The proposal in respect of P.V.Kunhikrishnan made on October 9,2018 was referred back by the Department of Justice to the Chief Justice of India for reconsideration in the light of the observations made in the file. The notification issued by Centre on November 1 split up the Collegium recommendation by accepting only the names of V G Arun, N Nageresh, T V Anil Kumar, and N Anil Kumar in omission of P V Kunhikrishnan.

The Collegium resolution of February 12 observed :

"As regards Shri P.V.Kunhikrishnan, we have carefully scrutinized the material placed on record including the reasons recorded in the file for seeking reconsideration of the proposal for his elevation. The Collegium while clearing his name on 9th October, 2018 has already considered material on the basis of which the proposal relating to Shri Kunhikrishnan has been referred back for reconsideration. As there is no fresh material in the file referred back to it for reconsideration of the above proposal, the Collegium is of the considered view that Shri P.V. Kunhikrishnan deserves to be elevated to the High Court Bench. The Collegium accordingly resolves to reiterate its recommendation dated 9 th October, 2018 for appointment of Shri P.V. Kunhikrishnan, Advocate as a Judge of the Kerala High Court"

Other reiterations made in 2018 during tenure of CJI Dipak Misra, which are pending.

Sanjay Kumar Medhi & Nani Tagia, Gauhati HC

On August 8 ,2018 the Supreme Court Collegium reiterated the recommendation for appointment of two Advocates— Sanjay Kumar Medhi and Nani Tagia— as judges of the Gauhati High Court.

C.Emalias, Madras HC

The name of advocate C Emalias was reiterated by SC collegium on August 3, 2018. The original proposal made in December 2017 was sent by centre. Advocate Senthilkumar Ramamoorthy, whose name was also reiterated along with Emalias, was appointed judge of Madras High Court on February 18.

No consistent approach by Centre

It can be seen the there is no consistent pattern in the responses of central government to Collegium reiterations. In some cases, they are accepted soon (in the case of Vishnukumar Prabhudas Patel, whose appointment as Gujarat HC judge was notified in January this year within weeks of reiteraton); in some cases, they are accepted after several months (Senthilkumar Ramamoorthy); and in most cases, they are kept pending for several months.

In cases of proposals to Kerala High Court and Calcutta High Court, the centre had sent back names by splitting up composite proposals made by Collegium.

In January 2018, a lawyer from Gujarat HC - Megha Jani- withdrew her consent for judgeship. This was understandably due to centre selectively withholding approval to her proposal, while accepting three other names which were cleared by the collegium.

The petition by Common Cause stated that in many cases Centre was selectively withholding approval to certain appointments despite the fact that the Collegium has reiterated their names for judgeship. Notably, it relies on a Live Law report titled, "Exclusive: Judges Appointments – A Ping Pong Game? Is indefinite sitting over the files choking the judicial system?", wherein Live Law had collected data to expose the sad state of affairs in terms of judicial appointments.

Since Collegium's reiteration is binding on the centre, its selective inaction in acting on the same can only be construed as a colourable exercise of power to scuttle judicial appointments.

The Supreme Court has recommended Advocates Conrad Stansilaus Dias, Mohammed Nias C.P., and Paul K.K., for appointment as Kerala High Court Judges.

The High Court collegium had recommended these three lawyers on 12^th April 2018.

The collegium comprising of CJI Ranjan Gogoi, Justice SA Bobde and Justice NV Ramana, after interaction with these recommendees of the High Court, found that they are suitable for appointment.

"For purpose of assessing merit and suitability of the above-named recommendees for elevation to the High Court, we have carefully scrutinized the material placed in the file including the observations made by the Department of Justice therein. Apart from this, we considered it appropriate to have interaction with all the recommendees", the Collegium resolution reads.

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The Supreme Court collegium has recommended the elevation of five lawyers as judges of the Bombay High Court.

The collegium comprising Chief Justice of India Ranjan Gogoi, Justice SA Bobde and Justice NV Ramana approved the following names:

Avinash G. Gharote

N.B. Suryawanshi

Madhav Jamdar

Anil Kilor

Milind Narendra Jadhav

The court had ten names before it. In addition to the five names listed above, it was also considering the candidature of Advocates Avinash S. Deshmukh, Manjari Dhanesh Shah, J.R. Shah, Abhay Kumar Ahuja and Devidas Pangam. The ten recommendations had been forwarded by the Bombay High Court collegium in May last year.

The Supreme Court collegium, however, deferred the proposal for elevation of Advocate Abhay Kumar Ahuja and remitted to the Bombay High Court the candidature of the remaining four Advocates.

The Supreme Court pulled up the West Bengal Government after it was brought to its notice that the film ""Bhobishyoter Bhoot" has not been screened within the limits of Kolkata.

The bench comprising of Justice DY Chandrachud and Justice Hemant Gupta also disapproved the action of Joint Commissioner of Police in directing the producer to arrange for a private screening of the film for a few senior officials, apprehending that the screening of the film may lead to "political law and order issues". The bench said:

"The State of West Bengal is duty bound, once the film has been certified by the Central Board of Film Certification ("CBFC") to take necessary measures to protect the fundamental right to free speech and expression of the producer and the director and, for that matter, of the viewers to see the film unrestrained by extra-constitutional restraints."

In an interim order passed on 15^th March, the court had directed the West Bengal Government to ensure that the screening of the film "Bhobishyoter Bhoot" takes place without unlawful obstruction. This order was passed while issuing notice to WB Government on a petition by the producers of the film complaining that the film was taken off from the theaters following an 'unofficial ban' by the Government.

The bench, on Monday, also directed the Joint Commissioner of Police to forthwith withdraw the communication that was addressed by him to the producer of the film. It also directed the Principal Secretary, Department of Home, Government of West Bengal and the Director General of Police to immediately issue communications to all the theaters where film was being originally screened intimating them that there is no ban on the screening of the film.

The state has also been asked to take necessary steps for protecting the properties of the theater owners and the safety of the members of the public who wish to view the film.

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Nirmohi Akhara, the original plaintiffs in one of the title suits in the Ayodhya-Babri Masjid land dispute, yesterday filed an application seeking modifications in the March 8 order of the Supreme Court Constitution Bench which had referred the matter to mediation.

The Akhara, which claims to have been looking after the best interests of the deity Ram Lalla and Ram Janmabhoomi as its Shebait since time immemorial, says that proceedings before the mediation panel on March 13 "left a lot to be desired".

It said that more than 25 parties along with counsel appeared before panel.The Akhara has suggested that as a first measure the original parties in the suits who claim title - the Akhara and the UP Sunni Waqf Board- should be encouraged to have dialogues with each other under the aegis of the panel, without having to give any proposal in writing.

It has also suggested including two more retired Supreme Court judges in the panel. Also, it has requested for change of mediation venue from Faizabad( the place where disputed land is located) to New Delhi or some other neutral place, where adequate and genuine security can be offered to the concerned parties.

The mediation proceedings are slated to continue on March 27, 28 and 29.

On March 8, the the five-judge bench constituted a three-member panel to be headed by (retd.) Justice F. M Khalifullah to explore a mediated settlement of the issue.Art of Living' founder Sri Sri Ravi Shankar and Senior Advocate Sri Ram Panchu were the other members. The panel has been given eight weeks' time by the SC to finish the process.

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The Supreme Court Tuesday refused to acknowledge the claim of the TTV Dhinakaran-led outfit over 'pressure cooker' as common election symbol.

The apex court, however, directed the Election Commission (EC) to consider granting common free election symbol to the candidates of the Dhinakaran-led outfit for the upcoming Lok Sabha polls and assembly by-elections in Tamil Nadu and Puducherry.

A bench headed by Chief Justice Ranjan Gogoi also made it clear that its order asking the EC to consider granting common election symbol would not amount to granting recognition to his outfit as a political group and its candidates would be treated as Independents for all practical purposes.

The bench, which also comprised Justices Deepak Gupta and Sanjiv Khanna, said that it was the duty and the rights of the Election Commission only to consider granting registration to Dhinakaran's outfit as a political party and it will be done in due course by the poll panel.

The bench said that its directions to EC to consider granting common free symbol to the list of 59 candidates furnished before it by the outfit was passed to ensure level-playing field and free and fair elections.

As per the list given by the Dhinakaran group, they have named 40 candidates for parliamentary elections in Tamil Nadu (39) and Puducherry (one).

The Dhinakaran outfit has also given a list of 19 candidates for the Assembly by-elections on 19 seats in Tamil Nadu (18) and Puducherry (one).

During the hearing, the counsel appearing for the EC told the court that a common symbol of pressure cooker cannot be given to the Dhinakaran-led group since they were not a registered political party.

The EC had on Monday told the apex court that it can allot a common symbol of "pressure cooker" to an individual but not to an unregistered group.

Dhinakaran had told the top court that the EC's stand would force the candidates of his Amma Makkal Munnetra Kazhagam (AMMK) to contest the upcoming Lok Sabha elections on different symbols.

The bench had asked senior advocate Kapil Sibal, appearing for Dhinakaran, as to when is the last date of filing nominations for Lok Sabha polls.

Sibal had replied that the last date of filing of nomination was Tuesday and if the party was not allotted the symbol, its candidates would have to contest on different symbols.

He had said that candidates of rival parties will win by default if a common symbol of 'pressure cooker' was not given to them.

The bench then asked the EC official to apprise it as to why a common symbol was not given to the AMMK.

The EC official had apprised the court that as per the rules a common symbol cannot be given to the AMMK, which was not a registered political party.

He had said the election process has already started and it would be difficult to allot a common symbol.

The bench, which asked for a detailed reply, was told by the official that the poll panel was not asked to file a response.

The bench, which was visibly unsatisfied with the reply of poll panel official, perused its March 15 order and said that court has issued notice to the EC.

On March 15, the apex court had agreed to hear a plea of Dhinakaran and V K Sasikala challenging a Delhi High Court order granting the 'two leaves' symbol to the AIADMK faction led by Tamil Nadu Chief Minister E K Palaniswami.

The court had issued notice to the EC on the limited plea of Dhinakaran that they be allowed to use 'pressure cooker' as a common symbol.

The Dhinakaran group had claimed that EC was not giving them a common symbol despite a direction from the apex court to allot "pressure cooker' as a common symbol to the party.

On February 28, the high court had dismissed the pleas of Dhinakaran and Sasikala challenging the EC order granting the 'AIADMK' name and the 'two leaves' symbol to the faction led by the Tamil Nadu chief minister, saying the figures showed the Palaniswami-led group "enjoyed a clear majority".

It had upheld the EC decision of November 23, 2017, saying none of the grounds of challenge raised by the Dhinakaran-Sasikala group were made out and there was "no infirmity" in the poll panel's order allotting the party name and symbol to the group led by Palaniswami and his deputy O Panneerselvam.

After the high court order was pronounced, Dhinakaran and Sasikala had urged the court to direct the EC not to allot the 'pressure cooker' symbol to anyone during the next 15 days so that they have time to move the apex court and seek an appropriate relief from there.

The EC, thereafter, had agreed not to allot the 'pressure cooker' symbol to anyone for next 15 days in Tamil Nadu and Puducherry.

Dhinakaran had floated Amma Makkal Munnetra Kazhagam after he and Sasikala were expelled from the Palaniswami-led AIADMK.

On March 24, 2019, we celebrated the four year anniversary of one of the most significant judgments in the digital rights sphere, the case of Shreya Singhal v. Union of India. Many of you may have kept abreast with this tumultuous journey over the years, so here is a brief recap timeline of our adventures.

2012: When 21-year-old student Shaheen Dhada was charged under Section 66A of the Information Technology Act, 2000 for her comment on the shutdown of public functions due to the death of late Bal Thackeray, the fight for internet freedom in India took flight. Section 66A criminalized the dissemination of certain types of messages that were offensive or menacing. This provision was used so indiscriminately for the prosecuting of individuals for their basic expression of free speech. As a result, a petition to amend this Section was filed in the Supreme Court against this disproportionate law.

2013: After the Supreme Court issued notice in this petition, there were several others that filed petitions challenging Section 66A. We mention the a few groups such Common Cause, the online review website Mouthshut, The Internet and Mobile Association of India and the Peoples Union for Civil Liberties, to draw importance to need for collaboration amongst various stakeholders from diverse backgrounds. Individuals, civil rights groups and industry associations who all came together to further and deepen constitutionality.

Shreya Singhal (Petitioner)

2015: The challenge to this section took two years to receive the landmark judgement by the Supreme Court declaring 66A unconstitutional, however, this was merely the beginning of things to come.

The Illegitimate Four-Year Reign

2016: Even after it was struck down, reports by the National Crime Records Bureau's (NCRB) Crime in India released during the year, informed that around 4,154 new cases were filed and 3,137 arrests were made in 2015, while 2,423 arrests were made the previous year. In addition, about 575 people were still in jail on January 1, 2016, twice as many as the 275 in prison when the law was in force a year earlier.

2017: There were whispers of a proposition by the Ministry of Home Affairs to strengthen Sections 153A and 505 (laws that deal with hate speech and statements of public mischief) of the Indian Penal Code through amendments, rather than modifying 66A. An idea that received support by the Ministry of Electronics and Information Technology.

2018: A working paper by the Internet Freedom Foundation through Abinav Sekhri and Apar Gupta published a study of the continued prosecution under 66A despite it's declaration as unconstitutional. It looked to media reports, online legal databases and reports of the National Crime Records Bureau to analyse cases. Through their study, they established that 66A lived on. However, we did see an update to electronic records of the IT Act and the Indian Penal Code on Indiacode that incorporated the changes the judgement brought about, making 2018 a little less grey.

Justice Rohinton Nariman , Author of Shreya Singhal Judgment

2019: Blue skies appeared when in collaboration with PUCL, we took this research to court to ensure these prosecutions were stopped once and for all. Victoriously, the Hon'ble Court once again took a positive stance by ordering that a copy of the Shreya Singhal judgement to all Courts, Prosecutors and Police Departments in India to ensure complete awareness through the grapevine.

The Current State of Affairs

But the Shreya Singhal decision was much more than about Section 66A. It concerned the intermediary rules which govern platforms such as Facebook and Twitter. It also dealt with website blocking. Both these issues stressed on the importance of protecting our fundamental right to freedom of speech and expression.

Over the past few months, the digital sphere has grappled with intense hurdles to its somewhat generally free and uninhibited state of being. We have brought to the forefront two further issues apart from the horrendous revival of Section 66A.

Website Takedowns: Late 2018 saw the introduction of the Draft Information Technology (Intermediary Guidelines) Rules which largely threatened to clamp down on the right to freedom of speech and expression through breaking encryption, automated censorship, further Government access to personal data (Read here for more). However, before this was released to public consultation, the Indian express reported that these changes were first debated in a private meeting. Subsequently, we thought it necessary to make these changes public. This was promptly followed by a call for comments.
Website Blockings: We portrayed in our very visual explanation, the violations of Net Neutrality through the rampant spike in blocking that are being carried out by various ISP's all over India over the last few months. Initially, we collated the data received through our online reporting form but most recently, we informed you of our re-activation of SaveTheInternet campaign in light these various threats to net neutrality.

We thought that in light of the four-year Shreya Singhal anniversary, it was necessary to highlight that these victories not only take time but continued efforts. These results require constant advocacy action and follow-up. More importantly, the joint-collaborations with various like-minded organisations activists that truly care for your digital rights is what enable these triumphs. Without any of this, we face the risk of scale-back and recession as is happening right now.

Therefore, as far as cliches go, we assure you that we along with many others will continue to rage and rage against the dying of the light.

The article was first published here

Picture Courtesy: LiveMint

The Supreme Court has observed that where a disease is caused or transmitted by insect bite/virus in the natural course of events, it would not be covered by the definition of an accident.

But, in a given case or circumstance, the affliction or bodily condition may be regarded as an accident where its cause or course of transmission is unexpected and unforeseen, the bench comprising Justice DY Chandrachud and Justice Hemant Gupta observed while dealing with what it called an 'interesting question of law'.

The question to be answered by the bench in Branch Manager, National Insurance Co. Ltd vs. Mousumi Bhattacharjee was whether a death due to malaria occasioned by a mosquito bite in Mozambique, constituted a death due to accident.

The bench was dealing with an appeal against the National Consumer Commission which rejected the Insurance company's contention that malaria due to mosquito bite is a disease and not an accident. After a conspicuous reference to many judgments, mostly of foreign jurisdictions, the bench observed:

"As the law of insurance has developed, there has been a nuanced understanding of the distinction between an accident and a disease which is contracted in the natural course of human events in determining whether a policy of accident insurance would cover a disease. At one end of the spectrum is the theory that an accident postulates a mishap or an untoward happening, something which is unexpected and unforeseen. This understanding of what is an accident indicates that something which arises in the natural course of things is not an accident. This is the basis for holding that a disease may not fall for classification as an accident, when it is caused by a bodily infirmity or a condition. A person who suffers from flu or a viral fever cannot say that it is an accident. Of course, there is an element of chance or probability in contracting any illness. Even when viral disease has proliferated in an area, every individual may not suffer from it. Getting a bout of flu or a viral illness may be a matter of chance. But a person who gets the flu cannot be described as having suffered an accident: the flu was transmitted in the natural course of things. To be bitten by a mosquito and be imbued with a malarial parasite does involve an element of chance. But the disease which is caused as a result of the insect bite in the natural course of events cannot be regarded as an accident. Particularly, when the disease is caused in an area which is malaria prone. "

The court also gave an instance where a bodily condition from which an individual suffers may be the direct consequence of an accident. A motor car accident, resulting in bodily injuries, the consequence of which is death or disability which may fall within the cover of a policy of accident insurance, it said.

"Hence, it has been postulated that where a disease is caused or transmitted in the natural course of events, it would not be covered by the definition of an accident. However, in a given case or circumstance, the affliction or bodily condition may be regarded as an accident where its cause or course of transmission is unexpected and unforeseen."

Setting aside the commission's order, the bench, on the facts of the case, observed:

"In a policy of insurance which covers death due to accident, the peril insured against is an accident: an untoward happening or occurrence which is unforeseen and unexpected in the normal course of human events. The death of the insured in the present case was caused by encephalitis malaria. The claim under the policy is founded on the hypothesis that there is an element of uncertainty about whether or when a person would be the victim of a mosquito bite which is a carrier of a vectorborne disease. The submission is that being bitten by a mosquito is an unforeseen eventuality and should be regarded as an accident. We do not agree with this submission. The insured was based in Mozambique. According to the World Health Organization's World Malaria Report 2018, Mozambique, with a population of 29.6 million people, accounts for 5% of cases of malaria globally. It is also on record that one out of three people in Mozambique is afflicted with malaria. In light of these statistics, the illness of encephalitis malaria through a mosquito bite cannot be considered as an accident. It was neither unexpected nor unforeseen. It was not a peril insured against in the policy of accident insurance."

The court, however, invoked Article 142 of the Constitution to direct that no recoveries shall be made from the amount already paid to the insured.

Read Judgment

The Supreme Court today adjourned the hearing of a batch of petitions challenging the scheme of electoral bonds for April 2.

CJI Ranjan Gogoi said that the court will not be able to hear the case today and ordered the listing of cases before an appropriate bench on April 2. The CJI indicated that the matter will be listed before another bench as the CJI is sitting in constitution bench from tomorrow. The application seeking stay on the Electoral Bond Scheme 2018 will be also be considered on that day, the CJI said.

The petitions have been filed by political party Communist Party of India(Marxist), and NGOs Common Cause and Association for Democratic Reforms(ADR),which challenge the scheme as "an obscure funding system which is unchecked by any authority"

ADR has filed a stay application stating that 95% of the electoral bonds sold so far have been in favour of one political party, that is the current ruling party. It also stated that most of the bonds that have been purchased since 2018 have been of the denominations of 10 lakh and 1 crores, indicating that it is not common citizens but corporates that have been purchasing these bonds while enjoying complete anonymity accorded by the scheme.

It sought immediate stay of the scheme, stating that these electoral bonds are being made available for a large number of days in three months leading to general elections solely to benefit big corporate donors. The scheme grants complete anonymity to corporate funding of political parties through electoral bonds, and this will lead to corporate funders lobbying to influence policy decisions, said the stay application.

Electoral bonds were introduced by amendments made through the Finance Act 2017 to the Reserve Bank of India Act 1934, Representation of Peoples Act 1951, Income Tax Act 1961 and Companies Act. On January 2, 2018, the Centre notified the scheme for electoral bonds, which are in the nature of bearer instruments like a Promissory Note capable of being purchased by an Indian citizen or a body incorporated in India. The bonds can be purchased from an authorized bank, and can be issued to a political party. The party can encash the bond within 15 days. The identity of the donor will be known only to the bank, which will be kept anonymous

The amendments made to Companies Act 2013 exclude the requirement of disclosure of names of political parties to whom contributions have been made. The petitioners voiced the apprehension that this will lead to "private corporate interests taking precedence over the needs and rights of the people of the State in policy considerations"

The petitioners further alleged that the scheme could not have been brought in through amendments made by Finance Act 2017, which was introduced and passed as a "money bill". According to the petitioners, the amendments were disguised as money bill to bypass the upper house.

Two weeks ago, the centre had filed counter-affidavit stating that the electoral bond schemes will bring in more transparency in political funding. The anonymity of the scheme was intended to protect the privacy of the donor, stated the centre.

The Supreme Court has made it clear that mere regulation by a statute on a private body cannot be conclusive of whether it discharges a public function, to hold it amenable to writ jurisdiction of a High court.

The bench comprising Justice DY Chandrachud and Justice Hemant Gupta, in a judgment delivered last month, held that Ramakrishna Mission and its Hospital at Itanagar would not constitute an authority within the meaning of Article 226 of the Constitution nor a 'State' under Article 12.

In Ramakrishna Mission vs. Kago Kunya, the division bench of the Gauhati High Court had held that the Mission is running a very large hospital in the State and utilised public funds for a part of its operation and thus would be amenable to writ jurisdiction. An employee of the Hospital managed by the Mission had filed a writ petition before the High Court seeking a direction to the management to allow him to continue in service until he completes thirty-five years of service, counting the appointment from 31 March 1982 when he was substantively appointed as a Nursing Aid.

In appeal, the Apex court bench noticed these two aspects particularly. One, under the Memorandum of Association and Rules and Regulations of the Mission, there is no governmental control in the functioning, administration and day to day management of the Mission. Second, the conditions of service of the employees of the hospital are governed by service rules which are framed by the Mission without the intervention of any governmental body.

Absence of State Control In Management Significant

The bench observed that before an organisation can be held to discharge a public function, the function must be of a character that is closely related to functions which are performed by the State in its sovereign capacity. It said:

"There is nothing on record to indicate that the hospital performs functions which are akin to those solely performed by State authorities. Medical services are provided by private as well as State entities. The character of the organisation as a public authority is dependent on the circumstances of the case. In setting up the hospital, the Mission cannot be construed as having assumed a public function. The hospital has no monopoly status conferred or mandated by law. That it was the first in the State to provide service of a particular dispensation does not make it an 'authority' within the meaning of Article 226. State governments provide concessional terms to a variety of organisations in order to attract them to set up establishments within the territorial jurisdiction of the State. The State may encourage them as an adjunct of its social policy or the imperatives of economic development. The mere fact that land had been provided on a concessional basis to the hospital would not by itself result in the conclusion that the hospital performs a public function. In the present case, the absence of state control in the management of the hospital has a significant bearing on our coming to the conclusion that the hospital does not come within the ambit of a public authority."

The court further added:

"We are of the view that in running the hospital, Ramakrishna Mission does not discharge a public function. Undoubtedly, the hospital is in receipt of some element of grant. The grants which are received by the hospital cover only a part of the expenditure. The terms of the grant do not indicate any form of governmental control in the management or day to day functioning of the hospital. The nature of the work which is rendered by Ramakrishna Mission, in general, including in relation to its activities concerning the hospital in question is purely voluntary."

Regulation Of A Body By Statute Does Not Make It A Statutory Body

As regard the contention that the hospital is subject to regulation by the Clinical Establishments (Registration and Regulation) Act 2010, the bench said:

"Private individuals and organizations are subject to diverse obligations under the law. The law is a ubiquitous phenomenon. From the registration of birth to the reporting of death, law imposes obligations on diverse aspects of individual lives. From incorporation to dissolution, business has to act in compliance with law. But that does not make every entity or activity an authority under Article 226. Regulation by a statute does not constitute the hospital as a body which is constituted under the statute. Individuals and organisations are subject to statutory requirements in a whole host of activities today. That by itself cannot be conclusive of whether such an individual or organisation discharges a public function."

Purely Private Contracts Not Subject To Writ Jurisdiction

The court also added that contracts of a purely private nature would not be subject to writ jurisdiction merely by reason of the fact that they are structured by statutory provisions. Only exception to this principle arises in a situation where the contract of service is governed or regulated by a statutory provision, the bench added.

The court also noted that the Clinical Establishments Act does not govern contracts of service entered into by the Hospital with respect to its employees. This fall within the ambit of purely private contracts, against which writ jurisdiction cannot lie. The sanctity of this distinction must be preserved.

Read Judgment

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