Holding that "a unilateral addition or alteration of a contract can never be foisted upon an unwilling party", the Supreme Court has set aside an arbitral award on the grounds of it being in conflict with "most basic notions of justice" and thereby conflicting with "public policy of India" as per Section 34(2)(b)(ii)(iii) of the Arbitration and Conciliation Act 1996.

In addition to that, the Court held that the award was also liable to be set aside under Section 34(2)(a)(iii) on the finding that the party was rendered "unable to present his case".

Background

The matter arose out of a 2005 work contract between the National Highway Authority of India(NHAI) and Ssangyong Engineering and Construction Company, a Korean company. The contract had a price adjustment formula, which applied the Wholesale Price Index published by Union Government based on the year 1993-94. From 2010 onwards, the Union Ministry started publishing WPI based on 2004-05. The contractor raised the bills accordingly. In 2013, the NHAI issued a circular adopting a new formula applying a "linking factor" based on 2009-10 to the old formula.

The contractor opposed the application of 2013 circular as a unilateral modification of the formula . The dispute was referred to arbitration.

The arbitral tribunal by a 2:1 majority upheld the application of 2013 circular. While doing so, the majority award applied certain government guidelines of the Ministry of Commerce and Industry, which stated that the establishment of a linking factor to connect the Old Series with the New Series is necessary. The majority award further made it clear that these guidelines are available on the official website, though they were not on record in the proceedings.

The dissenting arbitrator expressly stated that neither the Circular nor the guidelines could be applied as they were de hors the contract between the parties.

The challenge made to the award under Section 34 before the Delhi High Court was not successful and the matter reached the Supreme Court at the instance of the Korean contractor.

2015 amendment applicable in this case

At the outset, the bench of Justices R F Nariman and Naveen Sinha considered the applicability of 2015 amendments to Section 34 in the instant case.

Referring to BCCI v Kochi Cricket Club, the bench said "we declare that Section 34, as amended, will apply only to Section 34 applications that have been made to the Court on or after 23.10.2015, irrespective of the fact that the arbitration proceedings may have commenced prior to that date".

When arbitral tribunal could be said to have gone beyond the agreement

The appellant in SC had argued that Section 34(2)(a)(iv) of the 1996 Act was attracted to the facts of the case as the majority award contained decisions on matters beyond the scope of the submission to arbitration.

However, the bench did not accept this argument.

Referring to State of Goa v. Praveen Enterprises, the bench observed that "where an arbitral tribunal has rendered an award which decides matters either beyond the scope of the arbitration agreement or beyond the disputes referred to the arbitral tribunal, the arbitral award could be said to have dealt with decisions on matters beyond the scope of submission to arbitration"

The bench further added the Section 34(2)(a)(iv) has to be construed narrowly and that it was not possible to say that the misinterpretation of contract by the tribunal would mean that it had gone beyond the scope of submission to arbitration "if otherwise the aforesaid misinterpretation (which would include going beyond the terms of the contract), could be said to have been fairly comprehended as "disputes" within the arbitration agreement"(See para 43).

Applying this to the facts, the bench observed the the applicability of 2013 circular came within the ambit of disputes referred to the tribunal:

"It is enough to state that the appellant argued before the arbitral tribunal that a new contract was being made by applying the formula outside what was prescribed, which was answered by the respondent, stating that it would not be possible to apply the old formula without a linking factor which would have to be introduced. Considering that the parties were at issue on this, the dispute as to whether the linking factor applied, thanks to the Circular dated 15.02.2013, is clearly something raised and argued by the parties, and is certainly something which would fall within the arbitration clause or the reference to arbitration that governs the parties. This being the case, this argument would not obtain and Section 34(2)(a)(iv), as a result, would not be attracted."(para 47)

Party unable to present case

The bench however held that the award was hit by Section 34(2)(a)(iii).

It noted that the government guidelines that were referred to and strongly relied upon by the majority award to arrive at the linking factor were never in evidence before the Tribunal. In fact, the Tribunal relied upon the said guidelines by itself and stated that they are to be found on a certain website. The respondent also agreed that these guidelines were never, in fact, disclosed in the arbitration proceedings.

In this backdrop, the Court observed :

"This being the case, and given the authorities cited hereinabove, it is clear that the appellant would be directly affected as it would otherwise be unable to present its case, not being allowed to comment on the applicability or interpretation of those guidelines. For example, the appellant could have argued, without prejudice to the argument that linking is de hors the contract, that of the three methods for linking the New Series with the Old Series, either the second or the third method would be preferable to the first method, which the majority award has applied on its own. For this reason, the majority award needs to be set aside under Section 34(2)(a)(iii)"(para 46)

Most basic notions of justice violated

The Court observed that the 2013 circular, which was unilaterally issued by the NHAI, could not bind the contractor without its consent. In fact the Circular itself expressly stipulated that it cannot apply unless the contractors furnish an undertaking/affidavit that the price adjustment under the Circular is acceptable to them. 

"This being the case, it is clear that the majority award has created a new contract for the parties by applying the said unilateral Circular and by substituting a workable formula under the agreement by another formula de hors the agreement"(para 48), observed the Court.

This amounted to breaching the most basic notions of justice.

In the words of the Court :

"This being the case, a fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court"(para 48).

However,the Court cautioned that  this ground is available only in very exceptional circumstances.

"Under no circumstance can any Court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which, as we have seen, is contrary to the ethos of Section 34 of the 1996 Act, as has been noted earlier in this judgment".

"when it comes to the public policy of India argument based upon "most basic notions of justice", it is clear that this ground can be attracted only in very exceptional circumstances when the conscience of the Court is shocked by infraction of fundamental notions or principles of justice", clarified the Court. 

Though the award was set aside, the Court did not relegate the parties to fresh round of arbitration. Instead, the minority award was upheld, invoking Article 142 of the Constitution, to do complete justice.

Read Judgment

Supreme Court Collegium has recommended the names of Bombay High Court Judge Justice Bhushan Ramkrishna Gavai and Himachal Pradesh Chief Justice Surya Kant for elevation to the Supreme Court. 

"While recommending the names of Mr. Justice Bhushan Ramkrishna Gavai and Mr. Justice Surya Kant, the Collegium has taken into consideration combined seniority on all-India basis of Chief Justices and senior puisne Judges of High Courts, apart from their competence, conduct and integrity. The Collegium has also kept in mind the desirability of giving due representation on the Bench of the Supreme Court, as far as possible, to all the High Courts as well as to all sections of the society including those belonging to SC/ST/OBC categories, women and minorities. We are also conscious of the fact that some High Courts have remained unrepresented in the Supreme Court"

Mr. Justice Bhushan Ramkrishna Gavai was appointed as a Judge of the Bombay High Court on 14th November, 2003 and has been functioning there since then. He stands at Sl. No.8 in the combined seniority of High Court Judges on all-India basis. The Collegium while recommending his name has duly considered Mr. Justice Gavai's position (Sl.No.4) in the seniority of Judges hailing from Bombay High Court. His recommendation, in no way, is to be misconstrued to mean that three senior-most Judges from Bombay High Court (two of whom are serving as Chief Justices) are less suitable than Mr. Justice Gavai. On his appointment, the Supreme Court Bench will have a Judge belonging to Scheduled Caste category after about a decade.

 Mr. Justice Surya Kant was appointed as a Judge of the Punjab & Haryana High Court on 9th January, 2004 and was elevated as Chief Justice of Himachal Pradesh High Court on 5th October, 2018. Mr. Justice Surya Kant stands at Sl. No.11 in the combined seniority of High Court Judges on all-India basis. In the seniority of Judges hailing from Punjab & Haryana, Mr. Justice Surya Kant stands at Sl. No.2 and is already functioning as Chief Justice since 5th October, 2018. While recommending his name, the Collegium is conscious of the fact that on appointment of Mr. Justice Surya Kant there will be two Judges on the Bench of the Supreme Court from the Punjab & Haryana High Court, which has the distinction of being the common High Court for two large States, and is the third largest High Court in the country.

Read the resolution here

Supreme Court Collegium has reiterated the proposal for elevation of  Justices Aniruddha Bose And AS Bopanna to Supreme Court

Centre has recently returned the proposals forwarded by the Supreme Court collegium for elevation of Justice Aniruddha Bose and A S Bopanna citing the following reason

"The Supreme Court collegium's recommendation to elevate two judges has hit a hurdle, with sources claiming that the centre has returned it over seniority concerns. The government has sought a rethink on the decision".

Re-iterating the proposal, the Supreme Court Collegium said;

"The Collegium is of the view that, as laid down by the Supreme Court in its Opinion in Re: Special Reference No.1 of 1998 reported in (1998) 7 SCC 739, though inter-se seniority amongst Judges in their High Courts and their combined seniority on all-India basis should be given due weightage, merit should be the predominant consideration. The Collegium accordingly kept in mind these parameters while recommending the above two names".

Supreme Court has dismissed the petition filed by former BSF jawan Tej Bahadur Yadav against the dismissal of his nomination from Varanasi Loksabha constituency. 

"We don't find any merit to entertain this petition", said the bench headed by Chief Justice Gogoi

Yadav, who was dismissed from Border Security Force in 2017 for allegedly making false complaints about food quality, had filed his papers on April 29 as a candidate of the Samajwadi Party.

This was rejected by the Returning Officer on May 1 on the ground that the he was dismissed from the government service on April 19, 2017 and five years period from the date of such dismissal has not elapsed, in terms of section 9 of the Representation of the People Act 1951.

The Returning Officer also observed that "the nomination paper is neither accompanied by certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the state".

In 2017, Yadav had uploaded a video in social media where he complained that poor quality food was being served to personnels guarding the Indo-Pak border. This led to a huge furore and a court martial enquiry was held against him, which culminated in his dismissal on grounds of making false complaints in media. Yadav had initially announced that he will take on Prime Minister Narendra Modi in Varanasi as an independent candidate. Later, Samajwadi Party announced its support to him and fielded him as its candidate.

In the petition filed under Article 32 of the Constitution of India, Yadav asserts that he had produced his dismissal order along with the nomination paper, which showed that he was dismissed for alleged indiscipline and not for corruption or disloyalty to state. Therefore, he argues that his case is not covered by Section 9 of the 1951 Act and hence certificate by the Election Commission under section 33 (3) of the Act of 1951 is not required.

Also, he complains that sufficient time was not afforded to him for producing the certificate, as the show cause notice issued on April 30 at 6 PM required him to submit the certificate by 11 AM next day.

Without applying its mind on the argument raised him that the disability under the Act was not applicable to him, the nomination was rejected, Yadav contends in the petition, which is filed through Advocate Prashant Bhushan.

"It seems the impugned decision has been taken keeping in mind the sensitivity of the contest in Varanasi Constituency and to give walkover to the candidate of the ruling party by disqualifying the Petitioner whose candidature was gaining momentum and was therefore also supported by the main opposition alliance of two major political parties in the state", the petition states, terming the rejection "arbitrary, erroneous and mala fide".

He said that he was approaching the SC directly "in view of the abject failure of the Election Commission in exercising its constitutional power to ensure free and fair election and also total arbitrariness and malafide of the Returning Officer in disqualifying the Petitioner from contesting the Lok Sabha election". 

Everyone has to be responsible and careful in what they present to the Court, said the Supreme Court while reiterating that a lawyer demeans himself if he acts merely as a mouthpiece of his client.

The Supreme Court on Thursday dismissed the plea by two private persons to restrain Congress President Rahul Gandhi from contesting the 2019 General Elections until the determination of the 'dual citizenship' issue upon his supposedly procuring British citizenship.

"Some paper says he has British citizenship so he becomes a British citizen? Merely because a company speaks of him as a British citizenship so it means he has British citizenship?", observed the bench headed by Chief Justice Ranjan Gogoi.

"But he is aspiring to be the PM...", it was sought to be advanced.

"Each one of the 100 crore population of the country aspires to be the PM...if you got the opportunity, would you mind being the PM? It is a healthy aspiration to have", remarked the bench.

The 'activists' allege that Rahul Gandhi has acquired British citizenship which, according to them, is evident from documents filed by Backops Ltd before the Registrar of Companies for England and Wales. Rahul Gandhi's name is allegedly shown as one of the promoter of the Company. 

The activists have sought a declaration from the court that the Congress President is not competent to contest elections as he is not a citizen of India. The further seek a direction to Election Commission of India to decide the question of alleged acquisition of British Citizenship by Rahul Gandhi. Another prayer is to remove his name from electoral roll till the decision in this regard.

The returning officer of Amethi had set aside these allegations while accepting Rahul Gandhi's nomination papers. On a complaint filed by the Bharathiya Janata Party (BJP) leader Subramanian Swamy, the Home Ministry has also sought response from the Congress President.

A writ petition, raising similar allegations, moved by Advocate ML Sharma, was dismissed by the Supreme Court in 2015. 

The perjury application filed by review petitioners in the Rafale case is based on selective media reports and incomplete internal file notings procured illegally, says the counter affidavit filed by the Government.

"Media reports cannot form the basis for seeking initiation of 'perjury proceedings' since it is well settled that Courts do not take decisions on the basis of media reports", states the affidavit affirmed by Apurva Chandra, Director General Acquisition of Ministry of Defence

The incomplete file notings contain views expressed by various functionaries at different stages of decision making process, which cannot be used to allege perjury. The petitioners are relying on "selective leaks" in media from Ministry of Defence, and opinions expressed by individual officers, which only present an incomplete picture about the deal. The application is wholly "misconceived" and is an attempt to reopen the issues already sealed by the Court by its December 14 judgment, contends the government.

The perjury application has been filed by Yashwant Sinha, Arun Shourie and Prashant Bhushan, who were the petitioners in the PIL seeking probe into the alleged corruption and irregularities in the 2016 deal for procurement of 36 aircraft from the French company Dassault Aviation.

On 'parallel negotiations' by PMO 

According to the petitioners, the Government's submission that the entire negotiations were handled by the Indian Negotiating Team is discredited by the revelation made by The Hindu that Prime Minister's Office(PMO) held "parallel negotiations" with the French side, much to the objections of some of the officials of the Ministry of Defence. That the PMO intervened in the negotiations stands admitted by the statements of the then Defence Minister Mohan Parikkar, the petition states.

Responding to this, the affidavit states that PMO's monitoring of process cannot be construed as "parallel negotiations" or interference. The affidavit refers to the endorsement of the then Defence Minister Parikkar that the concern expressed by the Ministry officials appear to be "overreaction".

On dissent within Indian NegotiationTeam(INT)

The finding of the Court that negotiations by Indian Negotiating Team(INT) arrived at better terms relating to "price, delivery and maintenance", is based on erroneous and incomplete facts, say the applicants. Referring to the dissent of three officials of the INT, which was reported in "The Hindu", they submit that the interventions by the PMO led to the dilution of the several important clauses in the deal, like waiver of sovereign guarantee, non-insistence of payment in escrow account and incorporation of arbitration at Geneva as means of dispute resolution.

Rebutting this, the Government says : "The concerns raised by the members of INT were deliberated, recorded and addressed while ensuring utmost integrity and transparency in the process, allowing opinions to be freely expressed, recorded, discussed and if necessary modified. All the concerns raised were addressed in a collegiate manner".

Regarding the issue of Bank Guarantee, Arbitration seat etc, the applicants are trying to bring out contents of file noting of some functionaries selectively and are not bringing out the subsequent actions taken and how the concerns were addressed and decisions taken by the competent authority, states the affidavit. It mentions that waiver of sovereign guarantee is not an unusual practise in defence deals and cites the examples of contracts singed with Rosoboronexport of Russia, Foreign Military Sale of US.

The Government asserts that the Inter-Government Agreement(IGA) with French Government was vetted by the Ministry of Law and Justice and had the approval of Cabinet Committee on Security(CCS).

On benchmark prices

Also, the Court's finding that "broadly, the process was followed" does not stand against the information published by "The Hindu" and "The Caravan" regarding irregularities in the fixation of benchmark prices, argues the perjury application. "The note suppresses that Ministries/Officers were concerned that the way this agreement was structured, it did not meet the minimum requirements of an IGA and was IGA in nomenclature only", the petitioners submit.

Countering this the Government's affidavit refers to the report of the Comptroller and Auditor General which had brought out the unrealistic benchmark price fixed by INT and better price arrived at in the procurement of 36 Rafale jets, which was 2.86% lower than earlier process initiated during UPA regime for 126 Medium Multi Role Combat Aircraft(MMRCA).

The observations of CAG clearly negates the submissions put forward by the applicants.The petition for perjury filed on February 15 completely ignores the findings of CAG, states the Government.

On offset partner

According to the perjury petition, the Government's note made a reference to negotiations between Dassault Aviation and Mukesh Ambani-owned Reliance Industries in 2012, after the acceptance of bid under the 2007 Request For Proposal under the UPA era. It is alleged that the  note "mischievously" concealed the fact that Reliance Industries was owned by Mukesh Ambani, so as to confuse the Court. This confusion made the Court think that Reliance Industries was the parent company of Reliance Aerostructure Ltd(RAL), the Anil Ambani owned company which is at the centre of controversy. The petition speculates that this led the Court to ignore the fact that 2014-incorporated RAL landed the offset contract of Dassault, as the Court was under the mistaken impression that its parent company was anyways holding negotiations with Dassault since 2012.

Regarding this, the Government says that it has no role in selection of the Indian Offset Partner, which is a commercial decision of Dassault Aviation. The statement regarding negotiations between Dassault and Reliance Industries in 2012 was based on media reports, about which the the Government has no direct knowledge

On sealed cover note and correction application

The perjury petition states that the government had submitted an unsigned note in sealed cover in the Supreme Court, without the support of any affidavit, with 'misleading information'.

Refuting this, the Government states that the documents provided in sealed cover to the Court on November 12 were signed by the concerned Under Secretary and were based on official records. There was no direction to submit information by way of an affidavit.

Regarding the correction application, the Government states that it was filed to correct certain factual mistakes about the deal having been examined by the Parliamentary Accounts Committee and the CAG, and that such mistakes do not anyway affect the judgment, since the Court was concerned only with the decision making process and not pricing details of the deal.

Read Affidavit

Responding to the counter-affidavit filed by the Government terming the perjury application in Rafale case "misconceived", the applicants have filed a rejoinder.

The Government has placed heavy reliance on the report of the Comptroller and Auditor General to rebut the allegations levelled by the Yashwnat Sinha, Arun Shourie and Prashant Bhushan in the application.

Regarding this, the rejoinder casts doubts on the reliability of CAG report based on the following arguments :

• Much before the finalisation of CAG report, the Government had said in the sealed cover submitted to the Court that the report will redact the pricing details. The CAG report tabled in Parliament on February 15 had pricing details redacted, as "predicted" by the Government.
• CAG itself has admitted that there was no precedent of redacting pricing details from audit.
• CAG report is silent on the fact that the approval for the deal was given much after the announcement of it made by the Prime Minister during his France visit in April 10, 2015, whereas the Acceptance of Necessity for the deal was given later on May 13, 2015.
• CAG report is silent on "parallel negotiations" by Prime Minister's Office.
• CAG report is silent on dropping of standard clauses meant to ensure transparency and probity in every procurement deal.
• CAG does not address the issue of offset partner and proposes to do a separate audit for the same.
• CAG concedes that dropping of bank guarantee clause resulted in savings for Dassault. But this is not accounted in its final conclusion that deal was cheaper by 2.86% from the earlier deal for 126 MMCRA.

The petitioners contend that deal had several irregularities, such as the approval given after the announcement of the deal by PM, overruling of the objections by Ministry of Law and Justice regarding waiver of bank guarantee and selection of arbitration seat, overlooking of the dissent by domain experts in the Indian Negotiation Team. 

They also argue that a 'surreptitious amendment' was introduced in August 2015 in the procurement procedure to drop the condition that Indian Offset Partner should be disclosed in the Commercial Offset Proposal, which is to be approved by the Defence Ministry.

They assert that the Government had misled the Court by suppressing relevant and material information and that the December 14 judgment, which had declined to order probe into the corruption allegations in the deal, was obtained through "fraud played upon the Hon'ble Court by the government".

The rejoinder has annexed a document purported to be a note from the Ministry of Defence regarding "eight last minute changes" that were approved by the Defence Acquisition Council. Based on this document, the rejoinder states that Cabinet Committee on Security met in September 2016 to drop standard clauses in the deal pertaining to use of undue influence, agents/agency commission and access to books of accounts of industrial suppliers, which are usually included in procurement deals to ensure transparency and probity.

They allege that even now the Government is not disclosing to the Court these "last minute changes".

The "continued suppression of relevant and material information by the government is the reason for the petitioners to seek production of relevant and material documents", states the rejoinder.

Given that the impugned judgment has been obtained through multiple falsehoods and suppression of material and relevant information, it needs to be recalled, the petitioners contend.

The matter is listed for consideration tomorrow.

Read Rejoinder Affidavit

The Supreme Court has held that the "document" as defined in Section 29 of the Indian Penal Code is a "moveable property" within the meaning of Section 22 IPC and the information contained thereon in the documents would also fall within the purview of the "corporeal property" and can be the subject matter of the theft.

The Supreme Court constitution bench of CJI Ranjan Gogoi, Justices S A Bobde, Chandrachud, Ashok Bhushan and Abdul Nazeer will consider the Ayodhya-Babri Masjid land dispute matter tomorrow at 10.30 AM.

Two months ago, the Court had referred the matter for mediation to a court appointed panel of former SC judge Justice F M Khalifullah, Sri Sri Ravi Sankar and Senior Advocate Sriram Panchu.

It is understood that the panel has submitted a report to the Court about the progress in mediation. 

The proceedings were directed to be held at Faizabad in UP, where the disputed site is located.

The bench also clarified that the mediation process should be held in-camera, and had barred media from reporting on its developments.

The Supreme Court today dismissed the special leave petition filed by former IPS officer Sanjiv Bhatt against the March 7 judgment of the Gujarat High Court which had dismissed his bail application.

The sacked Gujarat cadre official has been in custody since September 2018 in a twenty three year old alleged drug planting case.

The bench of CJI Ranjan Gogi, Justices Deepak Gupta and Sanjiv Khanna observed that the Gujarat High Court had granted liberty to Bhatt to approach the Court again in case the trial in the case was not over within a period of six months. In that view of the matter, the Court observed that it was not inclined to interfere.

The case relates to an incident in 1996, when Bhatt, who was then a Superintendent of Police of Banaskantha district, had allegedly implicated one Sumersingh Rajpurohit, a Rajasthan-based lawyer, in a narcotics case. At the time, Banaskantha Police claimed that drugs were found in a hotel room occupied by Rajpurohit in the district's Palanpur town.

A later probe by Rajasthan Police in Rajpurohit's complaint concluded that he was falsely implicated by Banaskantha Police to compel him to transfer a disputed property at Pali in Rajasthan. It also claimed to have found that Rajpurohit was allegedly abducted by Banaskantha Police from his residence at Pali.

The investigation in the case remained frozen for long due to the pendency of special leave petitions filed by Gujarat Government in 2000 contending that the police officials were discharging bona fide duties .The "self imposed" stay on the investigation got vacated, when the Gujarat High Court directed on April 3, 2018 to expedite the investigation and handed over the case to CID. The special leave petitions were withdrawn by the Gujarat government in December 2018.  

After that Bhatt was taken into arrested in September 2018.

Following the rejection of his bail application by sessions court in Banaskantha district, he approached the High Court.

Dismissing the bail application, Justice Sonia Gokani of High Court observed that the delay of 23 years cannot be the sole guiding factor while deciding a bail application.  The Court, however, directed the Trial Court to expedite the process of completing the trial sooner as possible.

In April 2011, Bhatt had filed an affidavit in the Supreme Court accusing the then Chief Minister Narendra Modi of complicity in the 2002 riots. He claimed to have attended a meeting convened by the then CM, Mr. Modi, on February 27, 2002, the day of the communal riots, when instructions were allegedly given to the State Police to not take any action against the perpetrators of violence.

The Court appointed SIT however gave clean chit to Modi.

In 2015, Bhatt was removed from the police service, on the ground of "unauthorised absence". In October 2015, the Supreme Court dismissed Bhatt's plea for constituting a special investigation team (SIT) for cases filed against him by Gujarat Government.  The Court observed that, "Bhatt was in active touch with leaders of rival political party, was being tutored by NGOs, was involved in politics and activism of creating pressure, even upon 3-judge bench of this court, amicus and many others".

Read Order

The Supreme Court judgment in Birla Corporation Limited vs. Adventz Investments and Holdings Limited draws some parallels with its recent order in Rafale Review Petitions.

Constitution bench of the Supreme Court has extended the time given to the Ayodhya mediation panel to complete the process till August 15.

Chief Justice Ranjan Gogoi said that the report of the Chairman of the court-appointed mediation committee has been received and the progress made in the process is noted-

"The mediation is on and the Chairperson seeks an extension until August 15 to arrive at an amicable and complete solution which we are inclined to grant. But we would like for the progress (between the parties) to remain confidential for now"

While Senior Counsel Rajeev Dhawan, for the Sunni Waqf Board, expressed utmost support towards all attempts of mediation, Senior Advocate C. S. Vaidyanathan for Ram Lalla insisted that the committee be granted time only until the end of June.

"When they are seeking time till August, how can we do that? We don't want to short-circuit the process", observed the Chief Justice, proceeding the dictate the order allowing the extension.

The Committee had submitted its interim report in a sealed cover earlier this week.

The parties are next scheduled to meet to continue the endeavour to reach a compromise in June

Two months ago, the Court had referred the matter for mediation to a court appointed panel of former SC judge Justice F M Khalifullah, Sri Sri Ravi Sankar and Senior Advocate Sriram Panchu.

The proceedings were directed to be held at Faizabad in UP, where the disputed site is located.

The bench also clarified that the mediation process should be held in-camera, and had barred media from reporting on its developments.

This vacation will witness a rare instance of the Chief Justice of India himself presiding over a vacation bench.

The Supreme Court has observed that a defendant in a specific performance suit should plead in his written statement the hardship that will be caused if the decree of specific performance of the contract is passed against him.

The Supreme Court issued notice in the Special Leave Petition filed against the judgment of the Madras High Court that the Lieutenant Governor of Puducherry has no right to interefere in the daily affairs of the elected government of Puducherry.

The notice is issued in the Special Leave Petition filed by Puducherry LG Kiran Bedi.

"The Administrator is bound by the aid and advice of the Council of Ministers in matters where the Legislative Assembly is competent to enact laws as contemplated under Section 44 of the Government of Union Territories Act, 1962 though she is empowered to differ with the views of the Council based on some rationale which raises a fundamental issue regarding the action of the Government.", the High Court had ruled in a petition filed by Puducherry MLA K Lakshminarayanan

"The Administrator cannot interfere in the day to day affairs of the Government. The decision taken by the Council of Ministers and the Chief Minister is binding on the Secretaries and other officials.", added the High Court, holding that the Administrator has no exclusive authority to run the administration negating the Constitutional Principles and the Parliamentary Laws governing the issue.

The petition was filed in the wake of the July 4 Supreme Court Constitution Bench judgment which had upheld the primacy of the elected government of NCT of Delhi over the Lieutenant-General in matters of administration.

The Supreme Court has upheld the Constitutional validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018.

The said enactment provided for consequential seniority to persons belonging to the Scheduled Castes and Scheduled Tribes promoted under the reservation policy of the State of Karnataka.

The bench comprising Justice Uday Umesh Lalit and Justice Dhananjaya Y Chandrachud observed that this law has cured the deficiency noted in BK Pavitra judgment in respect of the 2002 law, and it does not amount to a usurpation of judicial power by the state legislature. The Reservation Act 2018 is a valid exercise of the enabling power conferred by Article 16 (4A) of the Constitution, the bench added. 

Reasons

• The state has studied in the present case the extent of reservation for SCs and STs in groups A to D, consisting of several cadres. Since, the group includes posts in all the cadres in that group, it can logically be presumed that the state has collected quantifiable data on the representation of SCs and STs in promotional posts in the cadres as well.
• The concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs.
• Provisions in regard to retrospectivity in the Ratna Prabha Committee report are neither arbitrary nor unconstitutional.
• The data submitted by the State of Karnataka indicates that if consequential seniority is not allowed, there would be under representation of the reserved categories

[to be updated]

Read Judgment

The Supreme Court bench headed by Justice SA Bobde today issued notice to the Centre on a PIL challenging mandatory death penalty under section 3(2)(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.

The provisions prescribes mandatory death penalty to a non-SC/ST person, if he is found to have knowingly fabricated or given false evidence in a criminal case resulting in the award of death penalty to a SC/ST person and his consequent execution.

The petition filed by Delhi-based lawyer Rishi Malhotra contends that the provision is "manifestly arbitrary, disproportionate, excessive, unreasonable, unjust, unfair, harsh, unusual and cruel".

Mandatory death penalty is against the dictum of the Supreme Court in Bachan Singh and Mithu cases, states the petition.

The petition also points out that in State of Punjab Vs. Dalbir Singh, 2012 (3) SCC 346, mandatory death penalty under sec.27(3) of the Arms Act was declared as ultravires the Constitution.  

An identical provision in the Indian Penal Code -Sec.194 IPC-  provides for an option of awarding death sentence or sentence of imprisonment of life.Similarly, sec.31A (1)(b) of the NDPS Act which initially provided for mandatory death sentence was rightly amended in the year 2014 by the legislature itself providing for an option of awarding death sentence or any other imprisonment as specified in sec.31 of the Act. Pointing out these aspects, the petition seeks to highlight that the provision in SC/ST Act is arbitrary.

"if the mandatory death sentences are allowed to continue in statutes, it would defeat the existence of very important provisions of Code of Criminal Procedure namely 235(2) Cr.P.C. as well as sec.354 (3) Cr.P.C. both of which provides for hearing of an accused on the quantum of sentence as well as giving reasons for imposing sentence by the Court", the petition states.

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In its judgment upholding the 2018 Karnataka Law granting reservation in promotion for staffs belonging to Scheduled-Caste and Scheduled-Tribe communities, the Supreme Court observed SC-ST Reservations are the true fulfilment of effective and substantive equality by accounting for the structural conditions into which people are born.

A Supreme Court Bench comprising Chief Justice Ranjan Gogoi and Justice Sanjiv Khanna on Friday issued notice to Delhi government on a petition against the decision of Delhi Government to install CCTV cameras in the classrooms and also the decision to provide live feed to parents.

The petition was filed by Amber Tickoo, a third-year law student, saying that students in the adolescent age would come under psychological pressure and get traumatized.

She has challenged the Delhi government decision on September 11, 2017,for installation of CCTV Cameras in classrooms and decision of December 1, 2017,providing live feed to parents from cameras installed in schools.

"That the impugned decision of installation of CCTV Cameras in school was taken in an emergency meeting convened on 11.09.2017 by the Minister of Education purportedly on the ground of 'incident of child abuse in the schools of Delhi/NCR', wherein it was decided that installation of CCTV cameras in all the schools of Delhi –run by Respondent No. 1, local bodies or aided/recognized by them will be mandatory"

She contended that the said decision was taken without undertaking any research/study into the ramifications of such installations, without consideration of the provision of data security as also the psychological impact of the said installations on young children. Further, no consent of the parents, or the teachers was considered before taking the impugned decision.

"The said installation of CCTV cameras and providing live feed of the same to anyone with a user id and password jeopardizes the safety and security of young girls as also the female teachers and shall directly give rise to the incidents of stalking and voyeurism".

Advocate Jai Dehadrai assisted by Advocate Srishti Kumar argued that 1.5 lakh CCTV cameras will provide live streaming from classrooms. The children would be under psychological pressure.

The petition was filed through Manisha Ambwani, Advocate-on-Record.

The petitioner contends that" the government's decision is in direct contravention of the Judgment of Supreme Court in Justice Puttaswamy (Retd.) & Anr. v. Union of India, which has unequivocally upheld Right to Privacy as a fundamental right under Article 21 of the Constitution of India.

"Further, the said decision is also in violation of the case of Indian Hotel and Restaurant Association and Anr v. State of Maharashtra, (W.P. (Civil) No. 576 of 2016) wherein installation of CCTVs has been held as violative of Right to Privacy," states the petitioner.