CONSTITUTION BENCH DECISIONS

1. Joseph Shine V UOI- Decriminalisation of Adultery 2023 INSC 87, DOJ:

31-01-2023

Joseph Shine v Union of India (2023)

On September 27th 2018, the Court decriminalised adultery. On January 31st 2023, the Court
clarified that decriminalising adultery did not impact members of the Armed Forces.

DECIDED

K.M. Joseph J Ajay Rastogi J Aniruddha Bose J Sanjiv Khanna J C.T. Ravikumar J

PARTIES Petitioner: Joseph ShinE, Lawyers: Kaleeswaram Raj; M.S. Suvidutt (AoR)

Respondent : Union of India Lawyers: K.K. Venugopal; B.V.Balaram Das (AoR)

Intervenor: Vimochana; Partners for Law in Development

Lawyers: Meenakshi Arora; Jayna Kothari; Anindita Pujari (AoR); Liz Mathew (AoR)

CASE DETAILS Case Number:WP (Crl.) 194/2017

Next Hearing:

Last Updated: June 15, 2023

KEY ISSUES

1. Whether Section 497 is an excessive penal provision which needs to be decriminalised?

2. Whether exemption granted to married women under Section 497 violates the right to
equality under the Constitution?

3. Whether Section 497 should be made gender neutral by including women as offenders?

CASE DESCRIPTION

The Court unanimously struck down Section 497 IPC. The Bench produced four concurring
opinions:

 Chief Justice Dipak Misra (on behalf of Justice Khanwilkar and himself)

Justice Nariman , Justice Chandrachud, Justice Malhotra

Joseph Shine, a non-resident Keralite, filed public interest litigation under Article 32 of the
Constitution. The petition challenged the constitutionality of the offence of adultery under
Section 497 of the IPC read with Section 198(2) of the Criminal Procedure Code, 1973.

Section 497 IPC criminalised adultery: it imposed culpability on a man who engages in
sexual intercourse with another man’s wife. Adultery was punishable with a maximum
imprisonment of five years. Women though were exempted from prosecution. Section 497
IPC was inapplicable when a married man engaged in sexual intercourse with an unmarried
woman.

Section 198(2) of CrPC specified how a complainant may file charges for offences committed
under Sections 497 and 498 IPC. Section 198(2) CrPC specified that only the husband
may file a complaint for the offence of adultery.

The Court reviewed the correctness of the precedents – Yusuf Abdul

Aziz, Sowmithri Vishnu and V. Revathi – which had in the past upheld Section 497
as constitutionally valid.

This case was first heard before a three-judge bench headed by the then Chief Justice Dipak
Misra.

The three-judge bench referred the matter to a five-judge Constitution Bench and noted:
‘Prima facie, on a perusal of Section 497 of IPC, we find that it grants relief to the wife by
treating her as a victim. It is also worthy to note that when an offence is committed by both of
them, one is liable for the criminal offence, but the other is absolved. ..Ordinarily, the
criminal law proceeds on gender neutrality, but in this provision, as we perceive, the said
concept is absent.’

On 11 July the Centre filed an affidavit, arguing that diluting adultery in any form will impact
the ‘sanctity of marriage‘.

The five-judge Bench started hearing the matter from August 1st 2018 onwards. On
September 27th 2018, the Bench delivered its judgment, decriminalising adultery.

On November 5th, 2020 the Union of India filed a miscellaneous application asking the Court
to provide clarity on how the Judgment would be applied to members of the Armed Forces.
This is with specific reference to Section 69 of the Army Act, 1950 which punishes members
of the armed forces for committing civil offences. The Union sought to clarify whether this
includes adultery practiced by armed forces members.

On January 31st, 2023 a 5-Judge Constitution Bench led by Justice K.M. Joseph passed the
final order on the matter. The Bench clarified that while passing the Judgment in 2018, the
Court was not concerned with the laws of the Armed Forces and therefore did not stand in
their way.

2. Bar Council of India v Bonnie FOI Law College

Challenge to the All India Bar Exams

Bar Council of India v Bonnie FOI Law College

The Supreme Court upheld the Bar Council of India's power to conduct the All India Bar
Examination, which is compulsory for advocates who wish the argue and practice before all
courts.

DECIDED: S.K. Kaul J, Sanjiv Khanna J, A.S. Oka J, Vikram Nath J, J.K. Maheshwari J

PARTIES

Petitioner: Bar Council of India

Lawyers: Ardhendumauli Kumar Prasad

Respondent: Bonnie FOI Law College

Lawyers: Mohan Pandey, B.K. Satija

Amicus Curiae: Attorney General K.K. Venugopal, Sr. Adv. K.V. Vishwanathan

Lawyers:

CASE DETAILS

Case Number:SLP (C) No. 022337/2008

KEY ISSUES

1. Can a pre-enrollment exam be prescribed by the Bar Council of India (BCI) as a condition
precedent for enrollment?
2. Can the BCI prescribe pre-enrollment training in terms of the BCI’s training rules issued
in 1995 as framed under Section 24(3)(d) of the Advocates Act, 1961?

3. If a pre-enrollment exam is impermissible, can the BCI prescribe a post-enrollment exam?

CASE DESCRIPTION

In April 2010, the Bar Council of India introduced the All India Bar Exam (AIBE) with the
objective of improving the standards of the legal profession in India. The AIBE assesses a
candidate’s basic understanding of the law and their analytical skills—the minimum
benchmark to qualify as an advocate. Candidates who pass the exam are awarded a
‘Certificate of Practice’ by the Bar Council of India to signify their qualification as an
advocate.

On April 30th, 2010, the Bar Council of India issued the ‘All India Bar Exam Rules, 2010’.
The Rules mandated advocates must pass the AIBE to practice law in India. Previously,
lawyers only needed a law degree and enrollment in their respective State Bar Council to be a
practicing advocate.

On October 30th, 2014, the Bar Council of India framed the Certificate of Practice and
Renewal Rules, 2014. These Rules declared that advocates enrolled in State Bar Councils on
June 2010 must obtain a Certificate of Practice within six months. Those who enrolled after
June 2010 had to appear for the AIBE to obtain their Certificate of Practice.

On January 13th, 2015, the Bar Council of India issued the BCI Certificate and Place of
Practice (Verification) Rules, 2015. The 2015 Rules create two classes of advocates—
practicing advocates and non-practicing advocates. Non-practicing advocates are barred from
benefiting from welfare schemes for advocates and are not allowed to vote in Bar Council
elections. The Rules further require advocates to renew their Certificate of Practice every five
years, failing which they will be listed as defaulting advocates.

On July 7th, 2008, Bonnie FOI Law College approached the Supreme Court in a matter
concerning the inspection, recognition and accreditation of law colleges in India. With the
passing of the 2010 Bar Council Rules, the issue of pre-enrolment qualifications and the All
India Bar Exam was also included in the scope of the petition. Subsequently, a number of
previously enrolled advocates and freshly enrolled advocates challenged the 2014 and 2015
Rules issued by the Bar Council of India.
The petitions argue that the Rules go against the decisions in V. Sudheer v BCI (1999)
and Indian Council of Legal Aid and Advice v BCI (1995). In these cases, the Supreme Court
held that the BCI cannot impose subordinate rules, which go against The Advocates Act,
1961 (the Act), on advocates. Section 30 of the Act extends to all advocates, enrolled in a
State roll of advocates, the right to practice before all Courts including the Supreme Court,
tribunals and other judicial authorities. V. Sudheer also ruled that the Bar Council of India
cannot impose pre-enrolment training on candidates. The Bar Council may issue rules
governing advocates only after their enrolment.

On March 1st, 2016, a 3-Judge Bench comprising former CJI J.S. Thakur and Justices R.
Banumathi and U.U. Lalit observed that the right to practice law was not only a statutory
right under the Act, but is also a fundamental right for LL.B. degree holders. The Bench
noted that an examination which grants licenses to advocates negated this right. The Bench
declared that they were not against the exam itself, but wanted to verify if the AIBE was
within the ‘parameters of law’.

On March 18th, 2016, the 3-Judge Bench referred the challenge to the All India Bar Exam to
a 5-Judge Constitution Bench.

On August 24th, 2022, the Supreme Court announced that it would hear 25 Constitution
Bench matters starting from August 29th, 2022. The AIBE challenge was on this list.

On August 20th, 2022, a 5-Judge Bench comprising Justices S.K. Kaul, Sanjiv Khanna, A.S.
Oka, Vikram Nath, J.K. Maheshwari directed the case to be listed for final hearings from
September 27th, 2022. The case was heard for two days on September 27th and 28th. On
February 10th, 2023 the Bench upheld the Bar Council of India’s power to conduct the All
India Bar Examination.

3. Election Commission Appointments

Anoop Baranwal v Union of India

The Supreme Court held that a committee comprising the Prime Minister, the Leader of the
Opposition and the Chief Justice of India will advise the President on appointments to the
Election Commission of India until Parliament enacts a law on the subject.

DECIDED: K.M. Joseph J, Ajay Rastogi J, Aniruddha Bose J, Hrishikesh Roy J, C.T.
Ravikumar J
PARTIES: Petitioner: Anoop Baranwal

Lawyers: Prashant Bhushan

Respondent: Union of India

Lawyers: Arvind Kumar Sharma

CASE DETAILS

Case Number:WP (C) 104/2015

Next Hearing:

Last Updated: May 26, 2023

KEY ISSUES

1. Does the current process for ECI appointments violate the right to equality?

2. Does the current process for ECI appointments violate the right to free and fair elections?

CASE DESCRIPTION

In January 2015, Anoop Baranwal filed a PIL on the ground that the current system for
appointing members of the Election Commission of India (ECI) is unconstitutional.
Currently, the Executive enjoys the power to make appointments, which the PIL contends has
degraded the ECI’s independence over time. The PIL pleads for the Court to issue directions
to set up an independent, Collegium-like system for ECI appointments. It claims that the
current system of appointments violates Article 324(2) of the Constitution.

Article 324 specifies that while the Chief Election Commissioner and Election
Commissioners will be appointed by the President, this is subject to Parliamentary law (if
such law exists). While this provision places an expectation on Parliament to draft a relevant
a law, it has not done so up until now. In the absence of such a law, the President has been
making appointments as per the recommendations of the Prime Minister.

The Union has defended the current mechanism of appointments, citing the ‘honest record’ of
all past Chief Commissioners. It has urged the Court to not intervene, submitting that the
matter falls within the executive domain.
On 23 October 2018, a bench comprising Chief Justice Ranjan Gogoi and SK Kaul referred
the matter to a five-judge Constitution Bench. On 6 January 2020, the Court tagged a similar
petition by Ashwini Kumar Upadhyay to the matter.

After hearing four days of substantial arguments in November 2022, the Constitution Bench
decided to change the process for Election Commission appointments in order to secure their
independence. The Bench created a committee comprising the Prime Minister, the Leader of
the Opposition in Parliament, and the Chief Justice of India. This committee will make
recommendations and advise the President on Election Commission appointments until
Parliament enacts a separate law on the subject.

4. Union of India & Ors. v. M/s. Union Carbide Corporation &

Ors.
Vikram Nath, Saniv Khanna, S.K. Kaul, Abhay S. Oka, J.K. Maheshwari

Petitioner: UOI V. UNION CARBIDE CORPORATION & ORS

Bhopal Gas Tragedy: Claim For ‘Top Up’ Has No Foundations In Any Known Legal
Principle- SC While Dismissing Centre’s Curative Petition

The Supreme Court has dismissed the curative petition filed by the Centre regarding
compensation to the victims of the Bhopal Gas Tragedy case saying that its claim for a ‘top
up’ has no foundations in any known legal principle.

The Centre had sought additional funds from Union Carbide Corporation’s (UCC) successor
firms to grant higher compensation to the victims of the said 1984 tragedy.

The Constitution Bench comprising Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna,
Justice Abhay S. Oka, Justice Vikram Nath, and Justice J.K.
Maheshwari observed, “Union of India’s claim for a ‘top up’ has no foundations in any
known legal principle. Either a settlement is valid or it is to be set aside in cases where it is
vitiated by fraud. No such fraud has been pleaded by the Union, and their only contention
relates to a number of victims, injuries, and costs that were not contemplated at the time the
settlement was effected.”
The Bench said that it is dissatisfied with the Union being unable to furnish any rationale for
raking up this issue more than two decades after the incident.

“Even assuming that the figures of affected persons turned out to be larger than
contemplated earlier, an excess amount of funds remained available to satisfy such claims”,
noted the Court.

Advocates Shreekant Neelappa Terdal and Karuna Nundy appeared for the petitioners
while Senior Advocates Harish Salve, Sanjay Parekh, Ravindra Shrivastava, Sidharth
Luthra, and AAG Saurabh Mishra appeared for the respondents.

Facts –

A curative petition was filed by the Centre in the year 2010 seeking an additional amount of
Rs. 7,844 crores from UCC’s successor firms to extend higher compensation to the victims of
the 1984 Bhopal gas tragedy that killed over 3,000 people and caused environmental damage.
The Centre demanded additional Rs. 7,844 crores from the UCC's successor firms over and
above the settlement amount of USD 470 million (Rs. 715 crores) received from the
American company as part of the settlement in the year 1989.

The UCC gave a compensation of USD 470 million (Rs. 715 crores) to the Union
Government at the time of settlement in 1989 after the toxic methyl isocyanate gas leaked
from the Union Carbide factory on the intervening night of December 2 and 3, 1984 resulting
in the death of 3,000 people and affected more than 1.02 lakh persons. A Bhopal Court in
2010 sentenced seven executives of Union Carbide India Limited (UCIL) to two years
imprisonment.

The Supreme Court after hearing the contentions of the counsel asserted, “There is no dispute
that the compensation was deposited within time. … Subsequently, certain endeavours were
made on behalf of victims from time to time to open up the settlement. However, these were
opposed by the Union of India and were not successful.”

The Court noted that while there is an increase in the amount required for compensation for
death and temporary disability, there is also a decrease in the amounts required for cases of
permanent disability and utmost severe cases, as also for loss of property and loss of life.

“Since this Court’s review jurisdiction itself is so restrictive, we find it difficult to accept that
this Court can devise a curative jurisdiction that is expansive in character. … We understand
that such a strategy was adopted as the Union of India’s endeavour is not to set aside the
settlement but merely to ‘top up’ the settlement amount. … We have great hesitation in
allowing such a prayer and granting such sui generis relief through the means of curative
petitions”, the Court further noted.

The Court said that while it sympathizes with the victims of the awful tragedy, it is unable to
disregard settled principles of law, particularly at the curative stage.

“Mere sympathy for the sufferers does not enable us to devise a panacea; more so while
looking into the nature of dispute, and the multifarious occasions on which this Court has
applied its mind to the settlement. … We are cognizant that no amount is truly adequate when
such incidents occur. Nevertheless, a monetary determination had to take place, and the only
compensatory mechanism known to common law is that of a lump-sum settlement”, observed
the Court.

The Court asserted that Union filed the curative petitions seeking to reopen the settlement
after opposing attempts by private parties to do so.

“The scenario arising in case of a shortage was clearly outlined in the review judgment, i.e.
the responsibility was placed on the Union of India, being a welfare State to make good the
deficiency and to take out the relevant insurance policies. Surprisingly, we are informed that
no such insurance policy was taken out. This is gross negligence on part of the Union of
India and is a breach of the directions made in the review judgment. The Union cannot be
negligent on this aspect and then seek a prayer from this Court to fix such liability on UCC” ,
the Court also asserted.

The Court directed that a sum of Rs. 50 crore lying with the RBI shall be utilised by the
Union of India to satisfy pending claims, if any, in accordance with the Bhopal Gas Leak
Disaster (Processing of Claims) Act, 1985 and the Scheme framed thereunder.

The Court, therefore, concluded, “Now the curative petitions have been filed by the Union of
India having not filed review petitions. Private parties who are here before us seek to ride on
the coattails of the Union. This is not something we can countenance.”

Accordingly, the Apex Court dismissed the curative petition.

Cause Title- Union of India & Ors. v. M/s. Union Carbide Corporation & Ors.
5. SHILPA SAILESH V VARUN SREENIVASANSupreme Court’s Power
To Directly Grant Divorce

Shilpa Sailesh v Varun Sreenivasan

The Constitution Bench held that the Supreme Court had the power to grant divorce to parties
who directly approached it, by using the SC's discretionary powers under Article 142 of the
Constitution of India.

DECIDED S.K. Kaul J, Sanjiv Khanna, A.S. Oka J, Vikram Nath J, J.K. Maheshwari J

PARTIES

Amicus Curiae: Indira Jaisingh, Dushyant Dave, V. Giri and Meenakshi Arora

Lawyers: N/A

CASE DETAILS Case Number:T.P.(C) No.1118/2014

Next Hearing: Last Updated: May 26, 2023

KEY ISSUES

1. Can Article 142 be used to decide divorce cases at all?

2.If yes, what rules should the Court follow to dissolve a marriage between the consenting
parties without referring them to Family Court?

CASE DESCRIPTION

In 2014, two parties moved the Supreme Court to grant them divorce using its powers
under Article 142. Article 142 of the Indian Constitution exclusively enables the Supreme
Court to issue or pass any order that it feels is necessary to provide ‘complete justice’ in a
case before it.

The petitioners were mutually consenting parties who said that their marriage was
irretrievably damaged—not a ground of divorce under the Hindu Marriage Act, 1955 (HMA).
Normally, mutually consenting petitioners must approach a Family Court under Section 13B
of the HMA. They had arrived at a settlement before they approached the SC. Meanwhile, the
Family Court was yet to hear their case.
In 2015, the SC granted them a divorce under Article 142. However, the Bench observed
there were many similar petitions pending before it. So, while the divorce was granted the
case was kept pending to decide all the other cases. The SC had to answer the following
questions:

1. Can Article 142 be used to decide divorce cases at all?

2. If yes, what rules should the Court follow to dissolve a marriage between the
consenting parties without referring them to Family Court?

The Court appointed Sr. Advs. V. Giri, Indira Jaisingh, Dushyant Dave and Meenakshi Arora
as amicus curiae to assist the Court in deciding what issues to address. In June 2016, a 2-
judge bench of the Supreme Court referred the case to a Constitution Bench. However, the
case was not heard till September, 2022.

The case was listed before a Constitution Bench led by Justice Sanjay Kishan Kaul on
September 20th, 2022. During the hearings, the Court noted that it would also decide how
Art. 142 could be used to dissolve a marriage when one of the parties does not consent to a
divorce.

The Constitution Bench, began hearing the case on September 28th, 2022.

On May 1st, 2023, Bench delivered the judgement in the case. They held that the Supreme
Court had the power to grant a divorce in cases of ‘irretrievable breakdown of marriage’,
even if the parties directly approached the SC without appealing a decision from a lower
court.

6. GOVERNMENT OF NCT OF DELHI V UNION OF INDIA 2023 INSC

517, DOJ 11/5/2023

Supreme Court judgment settling tussle between Delhi Govt and Centre In the spirit of
cooperative federalism, the Union must exercise its powers within the boundaries created by
the Constitution. NCTD, having a sui generis federal model, must be allowed to function in
the domain charted for it by the Constitution. The Union and NCTD share a unique federal
relationship. It does not mean that NCTD is subsumed in the unit of the Union merely
because it is not a “State”....
Supreme Court: In the matter dealing with the asymmetric federal model of governance in
India, involving the contest of power between a Union Territory and the Union Government,
the Constitution bench of Dr. D.Y. Chandrachud*, C.J., M.R. Shah, Krishna Murari, Hima
Kohli and P.S. Narasimha, J.J., held the following:

• There does not exist a homogeneous class of Union Territories with similar governance
structures.

• NCTD is not similar to other Union Territories. By virtue of Article 239AA, NCTD is
accorded a “sui generis” status, setting it apart from other Union Territories.

• The Legislative Assembly of NCTD has competence over entries in List II and List III
except for the expressly excluded entries of List II. In addition to the Entries in List I,
Parliament has legislative competence over all matters in List II and List III in relation to
NCTD, including the entries which have been kept out of the legislative domain of NCTD by
virtue of Article 239AA(3)(a).

• The executive power of NCTD is co-extensive with its legislative power, that is, it shall
extend to all matters with respect to which it has the power to legislate.

• The Union of India has executive power only over the three entries in List II over which
NCTD does not have legislative competence.

• The executive power of NCTD with respect to entries in List II and List III shall be subject
to the executive power expressly conferred upon the Union by the Constitution or by a law
enacted by Parliament

• The phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239-
AA(3) cannot be read to further exclude the legislative power of NCTD over entries in the
State List or Concurrent List, over and above those subjects which have been expressly
excluded

• With reference to the phrase “Subject to the provisions of this Constitution” in Article 239-
AA(3), the legislative power of NCTD is to be guided, and not just limited, by the broader
principles and provisions of the Constitution;
• NCTD has legislative and executive power over “Services”, that is, Entry 41 of List II of the
Seventh Schedule because the definition of State under Section 3(58) of the General Clauses
Act 1897 applies to the term “State” in Part XIV of the Constitution. Thus, Part XIV is
applicable to Union territories; and the exercise of rule-making power under the proviso to
Article 309 does not oust the legislative power of the appropriate authority to make laws over
Entry 41 of the State List.

Background: The question arose after a notification dated 21-05-2015 issued by the Union
Ministry of Home Affairs, that provided that the Lieutenant Governor (‘LG’) of NCTD shall
exercise control “to the extent delegated to him from time to time by the President” over
“services”, in addition to “public order”, “police”, and “land.” The LG may seek the views of
the Chief Minister of NCTD at his “discretion”.

The term “Services” are covered under Entry 41 of the State List of the Seventh Schedule to
the Constitution. The 2015 notification excludes Entry 41 of the State List, which has as its
subject, “State Public Services; State Public Services Commission”, from the scope of powers
of GNCTD.

The Delhi High Court declared that “the matters connected with ‘Services’ fall outside the
purview of the Legislative Assembly of NCT of Delhi.”1 On appeal, two-Judge Bench of
Supreme Court opined that the matter involved a substantial question of law about the
interpretation of Article 239-AA, which deals with “Special provisions with respect to Delhi”,
and hence referred the issue of interpretation of Article 239-AA to a Constitution Bench.

In 2018 Constitution Bench judgment, (2018) 8 SCC 501, it was held that NCTD is not
similar to other Union Territories and the constituent power of Parliament was exercised to
treat the Government of NCT of Delhi as a representative form of Government. It was held
that the executive power of NCTD is co-extensive with its legislative power, that is, it shall
extend to all matters with respect to which it has the power to legislate. Thus, the legislative
and executive power of NCTD extends to all subjects in Lists II and III, except those
explicitly excluded. However, in view of Article 239-AA(3)(b), Parliament has the power to
make laws with respect to all subjects in List II and III for NCTD. Further, it was held that
the phrase “insofar as any such matter is applicable to Union Territories” is an inclusive term,
and “not one of exclusion”. and cannot be used to restrict the legislative power of the
Legislative Assembly of Delhi.
Upon deciding the interpretation of Article 239-AA, the appeals were directed to be listed
before a regular Bench to decide the specific issues. In 2019, a two-Judge Bench of A.K.
Sikri and Ashok Bhushan, JJ. delivered two separate judgments. The judges differed on
whether “services” are excluded in view of Article 239-AA(3)(a) from the legislative and
executive domain of GNCTD.

In 2019 split verdict, Justice Ashok Bhushan held that the majority opinion in the 2018
Constitution bench judgment did not interpret the phrase “insofar as any such matter is
applicable to Union Territories”. Issue: Who would have control over the “services” in the
National Capital Territory of Delhi-The Government of NCTD (‘GNCTD’) or the Lieutenant
Governor acting on behalf of the Union Government?...

7. SUBHASH DESAI V PRINCIPAL SECRETARY,

GOVERNOR OF MAHARASHTRA, 2032 INSC 516, DOJ
11/5/2023
Disqualification Proceedings Against Maharashtra MLAs

Subhash Desai v Principal Secretary, Governor of Maharashtra

The Supreme Court referred Nabam Rebia v Deputy Speaker (2016) to a larger Bench. It held
that the Governor had no objective material to call for a floor test. Further, it stated the
speaker would decide whether the Eknath Shinde faction had defected from the Shiv Sena.

DECIDED: D.Y. Chandrachud CJI, M.R. Shah J, Krishna Murari J, Hima Kohli J, P.S.
Narasimha J,

PARTIES:

Petitioner: Subhash Desai

Lawyers: Mr. Kapil Sibal; Dr. Abhishek Manu Singhvi, Mr. Devadatt Kamat.

Respondents: Principal Secretary, Governor of Maharashtra; Secretary, Maharashtra

Legislative Assembly; State of Maharashtra; Eknathrao Sambhaji Shinde; Devendra
Fadnavis; Rahul Narvekar; Bharat Gogawale; 11 Other Rebel MLAs.
Lawyers: Mr. Harish Salve; Mr. Neeraj Kishan Kaul; Solicitor General Tushar Mehta, Mr.
K.M. Nataraj

CASE DETAILS

Case Number:W.P.(C) No. 493/2022

Last Updated: September 19, 2023

KEY ISSUES

1. Is splitting within a political party the same as defecting from the party?

2. Does the rebellion by Mr. Eknath Shinde and other MLAs against erstwhile Chief Minister
Mr. Uddhav Thackeray amount to defection?

3. Can the Shinde faction be subject to disqualification proceedings under the Tenth
Schedule?

4. Is the MLAs’ rebellion an exercise of inner-party democracy or a ‘constitutional sin’ of

defection?

BACKGROUND CASE

On June 21st, Shiv Sena party member Mr. Eknath Shinde, went missing, along with several
Shiv Sena MLAs. On the same day, Mr. Uddhav Thackeray called an emergency party
meeting which the rebel MLAs refused to attend. The Shiv Sena removed Mr. Eknath Shinde
as the Legislature-Party leader. Mr. Shinde responded claiming that he had the support of
over 40 MLAs, and represented a significant portion of the party. He further said that, with a
dwindling group of supporters, Mr. Thackeray was no longer the party’s chosen
representative.

On June 24th, 2022, Mr. Uddhav Thackeray urged the Deputy Speaker to begin
disqualification proceedings against the rebel Shiv Sena MLAs, including Mr. Eknath Shinde,
for defecting from the Shiv Sena. On the same day, two independent MLAs moved a ‘no
confidence’ motion against the Deputy Speaker Mr. Zirwal, stultifying his power to decide on
Shinde’s disqualification.

The next day (June 25th, 2022), Mr. Shinde’s faction of the Shiv Sena challenged the
disqualification proceedings before the Supreme Court on two grounds. On June 27th, 2022,
a Vacation Bench of the Supreme Court comprising Justices Surya Kant and J.B. Pardiwala
issued an unusual Order, staying the disqualification proceedings.

On June 28th, 2022, the Shinde faction requested the Governor of Maharashtra, Mr. Bhagat
Singh Koshyari to direct a floor test in the Assembly. Mr. Koshyari agreed to conduct the
floor test on June 30th, 2022. Immediately, the floor test was challenged by the Thackeray
faction in the Supreme Court. After four hours of arguments, on June 29th, 2022, the
Supreme Court refused to stay the floor test. Chief Minister Uddhav Thackeray resigned
within the hour, making way for the Shinde faction to consolidate power.

The Thackeray faction argued that the Shinde faction’s actions—disregard for the party
Whip, appointment of a new Deputy Speaker, call for a floor test, and insistence of the
Shinde faction’s majority—were all acts of defection.

Nabam Rebia v Deputy Speaker (2016) Referred to a Larger Bench

In Nabam Rebia, a 5-Judge Bench led by Justice Kehar held that a Speaker may not hear or
decide disqualification proceedings, after a notice of intention has been filed seeking their
removal. CJI Chandrachud’s Bench referred this Judgement to a 7-Judge Bench for
reconsideration. They cited three broad reasons for the reference.

First, according to Kihoto Hollohan v Zachillhu (1992), the Court cannot interfere in the
interlocutory stage of disqualification proceedings as per the Tenth Schedule. As per Nabam
Rebia, disqualification proceedings would be stopped if a notice of intention to remove the
Speaker was filed. This would amount to interference.

Second, the Bench in Nabam Rebia failed to consider the possible misuse of this decision.
MLAs undergoing disqualification would simply file a notice of intention against the Speaker
and stop the proceedings.

Third, disabling the speaker would take away the role of the Speaker as a Tribunal under the
Tenth Schedule. It would disrupt the functioning of the Speaker, and therefore the Tribunal, in
hearing disqualification proceedings. It would then create a ‘constitutional hiatus’.

Interim Measures to Ensure the Objective of the Tenth Schedule is Maintained

The SC laid down the procedure to be followed while Nabam Rebia is being reconsidered by
the SC. A Speaker facing removal may examine whether the motion of removal is done in
good faith. If it is well founded, the disqualifications proceedings will be adjourned, If not,
the Speaker may reject the motion and continue the disqualification proceedings. This
decision of the speaker to accept or deny a motion will be subject to judicial review.

The Supreme Court will not Decide on the Disqualification of the Rebel MLAs

Citing Kihoto Hollohan and Rajendra Singh Rana, the SC stated that the disqualification of
the rebel MLA’s was entirely upto the Speaker of the House. They pointed out that the
incumbent Speaker of the Maharashtra Legislative Assembly Mr. Rahul Narwekar was
appointed as per procedure. The Supreme Court, therefore cannot intervene. The decision of
the Speaker however falls squarely within the scope of judicial review.

In response to the petitioners’ request to delegate this task to the Deputy Speaker, the SC
clarified that the Deputy Speaker may only act in absence of the Speaker. The petitioners had
sought to show the Court that Mr. Narwekar was partial and biassed, as he had removed Mr.
Sunil Prabhu of the Shiv Sena as the Chief Whip. The Court stated that the Speaker is
‘expected’ to act fairly, independently, and impartially in deciding defection matters. Any
indications of being biassed will be considered when the Court reviews the decisions of the
Speaker, but will not review a duly appointed Speaker themselves.

Validity of Actions Taken in the House by Rebel MLAs

The SC stated that an MLA has the ‘right to participate in the proceedings of the House until
they are disqualified.’ Article 189(2) of the Constitution prospectively states that no
proceedings in the legislature will be considered invalid, even if it is found that one of the
members that voted was ineligible to. CJI Chandrachud wrote that allowing the validity of
parliamentary decisions to not be subject to a disqualification, when disqualifications are
made prospectively. To subject legislative decisions to future assessments of validity would
lead to chaos.

The appointment of Mr. Rahul Narwekar as Speaker by the rebel MLAs, using appropriate
procedure stands good in law.

Appointment of New Party Leader and Chief Whip Illegal

Laying clear distinction between legislature party and political party, the SC held that the
legislature party acts as per the direction of the political party. It clarified that the Tenth
Schedule, Representation of the People Act, 1951, Maharashtra Legislative Assembly
(Disqualification on Ground of Defection) Rule, 1986 all indicate that the legislature party
acts on the behest of the political party, and are categorically distinct. To sever the two would
be to indicate that a legislator could rely on a political party to be elected, and then
completely distance themselves from it. The Tenth Schedule is built on to safeguard
democracy from this very outcome. The appointment of the whip and the leader of the party,
therefore falls squarely within the discretion of the political party.

However, when the Speaker made the decision to appoint Mr. Eknath Shinde as the Shiv Sena
leader and Mr. Sunil Prabhu as the Chief Whip, had been made aware that the Shiv Sena had
split. The Bench held that the Speaker should have attempted to identify if the resolution
seeking these appointments were made by the political party.

On Identifying the ‘Real’ Shiv Sena

On February 17th 2023, the Election Commission of India allotted the name ‘Shiv Sena’ and
the party symbol of the bow and arrow to the Shinde led faction. This decision was
challenged before the SC and remains undecided at the time of this Judgement.

The SC held that the ECI cannot be asked to wait while the disqualification proceedings
complete, to allot a faction of a party with the name and symbol. It clarified that the decision
applies prospectively. That is, at the time of allocation, such a decision stands. If the faction is
disqualified later, the remaining faction must apply for allotment of the name and symbol
afresh.

The Court clarified that the decision of the ECI had no bearing on the disqualification
proceedings. Decisions in both instances consider different facts, with different purposes.

8. Animal Welfare Board v Union Of India Citation: 2023 INSC

548 DOJ: 18/5/2023 Challenge to the Practice of Jallikattu

Animal Welfare Board v Union Of India

Citation: 2023 INSC 548

The Supreme Court upheld the practice of Jallikattu, as permitted by the 2017 Tamil Nadu
Amendment to the Prevention of Cruelty to Animals Act, 1960.

DECIDED: K.M. Joseph J, Ajay Rastogi J, Aniruddha Bose J, Hrishikesh Roy J, C.T.
Ravikumar J
PARTIES

Petitioner : Animal Welfare Board, PETA, Compassion Unlimited Plus Action, Federation Of
Indian Animal Protection Organisations and Animal Equality

Lawyers: Sr. Advs Sidharth Luthra, Shyam Divan, V. Giri, Anand Grover and Krishnan
Venugopal

Respondent: Union Of India, State of Tamil Nadu and State of Maharashtra

Lawyers: Sr. Advs Kapil Sibal, Nagamuthu, Rakesh Dwivedi and Solicitor General of India

CASE DETAILS

KEY ISSUES

1. Is the Tamil Nadu Amendment contrary to Entry 17 of the Concurrent List in the
Constitution of India, by perpetuating cruelty to animals?

2. Is the sport of Jallikattu protected as a cultural right under Article 29 of the Constitution of
India?

3. Is Jallikattu essential to ensure the survival and well-being of the native breed of bulls
involved in the sport?

4. Is the Tamil Nadu Amendment Act violative of Articles 51A(g) and 51A(h) of the
Constitution of India, which place the duty of protecting the environment and developing a
‘scientific temper’ upon all citizens, as it promotes a bull taming sport?

5. Can the Act be said to be unreasonable and violative of Articles 14 and 21 of the
Constitution of India?

6. Is the impugned Tamil Nadu Amendment Act directly contrary to the Judgment in A.
Nagaraja?

7. Does the Tamil Nadu Legislature have to power to amend the Prevention of Cruelty to
Animals Act, 1960?

CASE DESCRIPTION

Jallikattu is a bull taming sport, played in Tamil Nadu around the time of Pongal festival in
January every year. Native breeds of bulls are released into a crowd of people, and multiple
participants attempt to grab the large hump on the bull’s back with both arms and hang on to
it while the bull attempts to escape. The Tamil Nadu government claims that the sport plays
an important role in preserving and promoting the culture of breeding native bull breeds, and
ensures their survival.

In May 2014, a Two-Judge Bench of the Supreme Court, in Animal Welfare Board of India v
A. Nagaraja, banned the use of bulls for Jallikattu events in the state, and bullock cart races
across the country. In 2015 the Court dismissed the Tamil Nadu government’s plea seeking a
review of the 2014 Judgement.

On January 7th, 2016, Union issued a notification directing the States to comply with the A.
Nagaraja Judgment. However, the notification allowed Jallikattu to be practiced while
imposing certain restrictions to accommodate animal rights concerns. Animal rights activists
from across the country challenged the notification at the Supreme Court in 2016. However,
while the petitions were pending, the Tamil Nadu government passed the Prevention of
Cruelty to Animals (Tamil Nadu Amendment) Act in January 2017 which permitted the sport
and introduced rules to govern the practice under Section 3(2).

Many organisations including People for Ethical Treatment of Animals (PETA), filed writ
petitions seeking directions from the SC to quash the Tamil Nadu amendment to
the Prevention Of Cruelty To Animals Act, 1960 (PCA Act) which permitted Jallikattu. The
challenges were primarily mounted on the ground that it circumvented Supreme Court’s
Judgment in A. Nagaraja. It further contended that only the Union government has the power
to frame rules under PCA Act and hence the rules framed by the Tamil Nadu Legislature are
invalid and therefore inapplicable. The petitions also argue that Jallikattu does not have any
religious significance, and was found to be cruel as per Nagaraja and against Section 11 of
the PCA Act which prohibits cruelty against animals.

On February 2nd, 2018, a Supreme Court Bench comprising Justices Dipak

Mishra and Rohintan Nariman referred this batch of writ petitions to a 5-Judge Constitution
Bench. The primary question is whether Jallikattu and bullock-cart are protected
under Article 29(1) of the Constitution as a cultural right. The Constitution Bench will also
decide whether States have the powers to enact rules under the PCA Act.

On May 18th, 2023, the Constitution Bench upheld the Amendments permitting the practices
of Jallikattu, Kambala and Bailgada Sharyat.
9. CBI v. R.R.Kishore: 2023 INSC 817 11/9/23

Supreme Court declares Provision of DSPE Act Void since

Inception
Judges: S.K. Kaul J, Sanjiv Khanna J, A.S. Oka J, Surya Kant J, J.K. Maheshwari J

Introduction

On 11.09.2023, the Hon'ble Supreme Court ('the SC') of India delivered a landmark
judgment addressing the retrospective effect of declaring a law unconstitutional. This case[i]
revolved around a constitutional challenge to s. 6A of the Delhi Special Police Establishment
Act, 1946, (‘DSPE Act’). S. 6A mandated prior approval from the Central Government for
the Central Bureau of Investigation (‘CBI’) to conduct inquiries or investigations into alleged
offences committed by public servants of the Joint Secretary level and above, under the
Prevention of Corruption Act, 1988 (‘PCA’).

The SC declared that the previous ruling by the Constitution Bench in Subramanian Swamy v.
CBI[ii], which had declared s. 6A of the DSPE Act unconstitutional, would apply
retrospectively rather than prospectively.

The SC emphasized that when a law is declared unconstitutional, it is void ab initio,

unenforceable, and non est. This implies that the law is considered never to have existed and
possesses no legal validity or binding authority. The SC also clarified that s. 6A of the DSPE
Act was purely procedural, offering protection to senior government servants without
introducing new offences or penalties. Consequently, its retrospective application would not
infringe upon a. 20 of the Constitution, which prohibits double jeopardy and retrospective
criminalisation.

Brief Facts

 This case originated from two writ petitions filed by Dr. Subramanian Swamy and the
Centre for Public Interest Litigation (‘CPIL’), challenging the constitutionality of s.
6A of the DSPE Act. These petitions were referred to a Constitution Bench by a three-
judge bench following the judgment in Vineet Narain v. Union of India[iii], which had
struck down an earlier version of s. 6A, known as the single directive[iv], deeming it
without legal sanction and contrary to the rule of law.
  The Constitution Bench in Subramanian Swamy (supra) declared s. 6A of the DSPE
Act unconstitutional on the grounds that it violated a. 14 of the Constitution by
creating an unreasonable classification among public servants based on their status
and rank, without any rational nexus with the objectives of the PCA or the DSPE Act.
The SC also noted that s. 6A impeded the independence and autonomy of the CBI and
undermined its credibility and effectiveness in combating corruption.

 However, the Constitution Bench did not decide whether its declaration would have
retrospective or prospective effect, given the provisions of a. 20 of the Constitution,
which stipulate that no person shall be convicted of any offence except for the
violation of a law in force, nor be subjected to a penalty greater than that which might
have been inflicted under the law in force at the time of commission of the offence.

 The case under consideration involved the CBI registering an FIR on 16.12.2004 for
offences under the PCA and setting a trap to catch the accused while accepting a
bribe. The accused sought discharge, arguing that the trap was set without the prior
approval of the Central Government, as mandated by s. 6A of the DSPE Act.
However, the Special Judge, CBI, rejected the discharge application. Still, the High
Court ruled in favour of the accused, permitting reinvestigation, subject to Central
Government approval. The CBI appealed, and this matter remained pending until
2014 when s. 6A(1) of the DSPE Act was declared unconstitutional.

A 5-Judge Constitution Bench declared that public officials cannot enjoy immunity against
arrest after the provision which granted such immunity is struck down following their arrest.
Justice Vikram Nath read out the judgement today.

Background

Section 6A is only procedural

The Court considered whether Section 6A forms a part of the procedure of investigation or if
it introduces a new offence or sentence under the Delhi Special Police Establishment Act,
1946. Justice Nath read out that Section 6A only mandated a process where the prior approval
of the Union government was needed before initiating an inquiry or investigation against
officials. It did not constitute a separate offence based on whether the approval was sought or
not.
Article 20(1) irrelevant in context of Section 6A

Article 20(1) deals with conviction of an offence by ‘a law in force at the time of the
commission of the act’. The Bench had to decide whether Article 20(1) also protects the
immunity of the accused at the time of the commission of the offence.

The Bench held that Article 20 is irrelevant in the context of the validity of Section 6A.
Presumably, because Article 20 deals with the conviction of an offence, whereas Section 6A
is procedural and only mandates the approval of the Union government.

Public officials do not enjoy immunity from arrest

The Bench held that Dr. Subramanian Swamy v Director, Central Bureau of Investigation
which struck down Section 6A, will have a retrospective effect. This means that public
officials do not have protection from arrest for offences committed before Subramanian
Swamy.

10. SUPRIYO @ SUPRIYA CHAKRABORTY V UNION OF INDIA 2023

INSC 920 DOJ 17/10/2023

In a closely-watched verdict, India's Supreme Court, by a 3:2 majority, ruled against granting
legal recognition to same-sex marriages. The decision came after a marathon 10-day hearing
by a five-judge constitution bench led by Chief Justice DY Chandrachud. During the
proceedings, petitioners emphasized the LGBTQIA+ community's equality rights and their
desire for a dignified life, just like heterosexual couples.

However, the Centre (defendant) opposed these pleas, stating that Indian laws recognize
unions only between biological men and women. So, this landmark judgment signifies an
important discussion on LGBTQ+ rights in India and marriage equality.

Let's delve into this article to know the highlights of the judgment and a brief timeline of the
entire case.

Highlights of the Judgment

 The bench comprised Chief Justice of India DY Chandrachud, Justice Sanjay Kishan
Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha
with Justices S Ravindra Bhat, Hima Kohli, and P S Narasimha in the majority and
 Chief Justice of India D Y Chandrachud and Justice Sanjay Kishan Kaul in the
minority.

 The Supreme Court, in this landmark case (Supriyo @ Supriya Chakraborty & Anr. vs
Union of India 2022), has entrusted the matter of same-sex marriage to Parliament, as
it is unable to alter provisions of the Special Marriage Act.

 Chief Justice Chandrachud and Justice Kaul advocated for civil unions for non-
heterosexual couples, marking a step toward marriage equality. However, all five
judges agreed that there's no inherent right to marry under the Indian Constitution.

 A majority verdict by a 5- member Bench therefore ruled against same-sex marriage,

emphasizing that Parliament should make this call. It failed to recognise the validation
of same-sex marriage in the country.

 The intense 10-day debate covered issues like equality, privacy, marriage benefits, and
child welfare, with opposition from the Central government, national child rights
body NCPCR, and Islamic scholars' group, Jamiat-Ulama-i-Hind.

 Also, talking about the queer community, while the bench stated that queerness as a
concept is a natural phenomenon known for ages and is neither urban nor elite, it
said the court couldn't make a law but only interpret it. The Justices also said that it is
for Parliament to change the Special Marriage Act.

 However, the bench directed the Centre, states and Union Territories (UTs) to ensure
the queer community is not discriminated against!

11. IN RE ARTICLE 370 OF THE CONSTITUTION 2023 INSC 1058 DOJ

11/12/23

Abrogation of Article 370 | Judgement Summary

Judges: D.Y. Chandrachud CJI, S.K. Kaul J, Sanjiv Khanna J, B.R. Gavai J, Surya Kant J

Gauri Kashyap and R. Sai Spandana | 11th Dec 2023

On 11 December 2023, five senior-most judges of the Supreme Court upheld the Union
government’s action to abrogate Article 370, which granted special status to Jammu and
Kashmir (J&K). The Court further refused to comment on the constitutionality of the
reorganisation of J&K state into two Union Territories: Jammu and Kashmir and Ladakh.

Chief Justice D.Y. Chandrachud on behalf of himself, Justices B.R. Gavai and Surya
Kant, wrote 352 pages of the 476 page judgement. Justice S.K. Kaul wrote 121 pages
and Justice Sanjiv Khanna wrote a concurring judgement of three pages.

Jammu and Kashmir did not retain sovereignty

CJI Chandrachud relied strongly on a proclamation by Yuvraj Karan Singh’s on 25 November

1949, the day before India’s Constitution was adopted. The proclamation stated that the
provisions of the Indian Constitution would govern the relationship between the J&K and
India. This, the Chief noted, negated two clauses of the Instrument of Accession (IoA).
Paragraph 7 of the IoA stated that the IoA was not a symbol of acceptance of “any future
Constitution of India” and Paragraph 8 stated that the IoA would not affect the sovereignty of
the Maharaja.

The Yuvraj’s proclamation said that “the provisions of the said Constitution shall, as from the
date of its commencement, supersede and abrogate all other constitutional provisions
inconsistent therewith which are at present in force in this State.”

Further, CJI Chandrachud wrote that there is much evidence in Article 370 and the J&K
Constitution to show that a merger agreement was not necessary for Kashmir to surrender its
sovereignty. Article 370(1) applied Article 1 of the Constitution (where J&K was listed as a
Part III State) with no modifications. Section 3 of the J&K Constitution explicitly states that
“the State of Jammu and Kashmir is and shall be an integral part of the Union of India.”
Section 147 prohibited any amendments to Section 3, further making the provision absolute.
Therefore, the Constitution of India, he said, “became the supreme governing document of
the land.” Further, the Preamble to the J&K Constitution shows a “clear absence of…a
reference to sovereignty.”

The Chief also disagreed with the petitioners’ argument that the autonomy enjoyed by J&K
was distinct from other states. In asymmetric federalism, one state may enjoy a
greater degree of autonomy than another. This does not mean that it has a different kind of
autonomy. He warned that if the Court held that J&K enjoys an elevated kind of sovereignty,
it would mean that “other states which had special arrangements with the Union also
possessed sovereignty.”
Justice Kaul differed on the question of sovereignty. He held that as per the Court’s decision
in Prem Nath Kaul v Union of India (1959), J&K had retained some part of its sovereignty.
Article 370, he said, recognised J&K’s internal sovereignty by recognising the Constituent
Assembly of the state.

Justice Khanna concurred with Justice Kaul’s reasoning.

Article 370 is a temporary provision

First, the Chief relied on the fact that the Constitution framers placed Article 370 with the
temporary and transitional provisions contained in Part XXI. Then, he pointed out that the
IoA made it “abundantly clear” that Article 1 which stated that “India that is Bharat shall be a
Union of States” applied in its entirety to J&K. When the Constitution was adopted on 26
January 1950, J&K was a Part B State. CJI Chandrachud wrote that with the introduction of
the Seventh Schedule, the distinction between Part A, B and C states was obliterated, making
J&K an integral part of India.

Petitioners had also argued that Article 370 was only temporary while the Constituent
Assembly of J&K existed. As the members chose to retain the provision, it transcended to
permanency, with the only authority that could have abrogated it having dissolved. CJI
Chandrachud held that the words “recommendation of the Constituent Assembly…shall be
necessary” should be read with the historical context in mind, as it indicates that this was
merely a “ratification process as decided by the Ministry of States.” The recommendation, he
said, is not binding on the President.

Further, the Chief held that the provision was introduced to “deal with the special
circumstances in the State.” At the time of the dissolution of the Constituent Assembly, these
special circumstances persisted, requiring the continuation of Article 370.

The Chief Justice also held that the dissolution of the Constituent Assembly could not limit
the powers of the President to abrogate Article 370. The President’s power, he explained, was
only limited under Article 370(1), which meant that they could not “make radical changes to
the provisions of the Constitution of India as it applies to Jammu and Kashmir.” If the
President exercises his power under 370(3) to abrogate the provision, no such limitation
under 370(1) would survive, all provisions of the Constitution of India would apply to J&K,
and integration would be complete. “Holding that the power under Article 370(3) cannot be
exercised after the dissolution of the Constituent Assembly would lead to freezing of the
integration contrary to the purpose of introducing the provision,” CJI Chandrachud wrote.

Justice Kaul agreed, citing that “Article 370’s historical context, its text, and its subsequent
practice” indicates its temporary nature. The President’s power can be exercised post-
dissolution “in line with the aim of full integration of the State,” he wrote.

Constitutional validity of proclamations under President’s Rule

CJI Chandrachud first clarified that the Court would not deal with the President’s powers to
invoke President’s Rule under Article 356, as the core challenge pertained to “actions taken
during the subsistence of President’s Rule and not independently to President’s Rule by
itself.” He then dealt with the petitioners’ claim that the President cannot use their powers
under Article 356 to “take irrevocable decisions” and “unsettle constitutional safeguards in
favour of States.”

First, the Chief Justice relied on Justice B.P. Jeevan Reddy’s decision in S.R. Bommai v Union
of India (1994), where he held that when President’s Rule is imposed, it was a “necessary
consequence” that the government is removed, to avoid simultaneous governance by the
Union and state governments. The federal structure then becomes “diluted because the Union
is empowered to take over the executive and legislative powers of the State.” Keeping in
mind the intent of Article 356, which is to “restore the functioning of the constitutional
machinery in the state,” actions taken by the President during the proclamation should be
“geared” towards fulfilling this objective. CJI Chandrachud, wrote that “it will be too
stringent an approach to suggest that every action of the President and Parliament must be
necessary to further the objects of the proclamation.”

Further, the Chief stated that there are “hundreds if not thousands” of decisions that the
President and Parliament must take, on behalf of the state legislature, to ensure effective day-
to-day functioning in the state. Every such action, he held, cannot be open to judicial review,
as it would “lead to chaos and uncertainty” and “put the administration in the State at a
standstill.”

Any action taken in the exercise of this power, he said, can be repealed or modified by the
state legislature after it resumes its functioning. Under Article 357(2) “federating units would
have the power to reverse or modify the changes which were brought by the Union during the
subsistence of the Proclamation.”
Holding that judicial review is only applicable to actions taken after President’s Rule has
been proclaimed, the Chief laid down a standard to assess the grounds for such review. First,
the “exercise of power by the President under Article 356 must have a reasonable nexus to the
object of the Proclamation.” Second, such an exercise of power will not be considered to be
invalid “merely on the ground of ‘irreversibility’ of the actions.” Third, in the challenge to an
action taken under President’s Rule, the onus lies on the petitioners to establish that a prima
facie assessment of the case shows a “mala fide or extraneous exercise of power.”

If a case of mala fide is made on a preliminary assessment, the onus then falls on the Union to
prove that a reasonable nexus exists between the action taken and the goal of proclaiming
President’s Rule. Finally, the President’s exercise of power for the day-to-day administration
of the state is “not ordinarily subject to judicial review.”

Justice Kaul concurred, stating that the President has the power to make “irreversible
changes, including the dissolution of the State Assembly.” He noted that the President’s
powers are kept in check by “judicial and constitutional scrutiny.”

Does Parliament enjoy both law-making and non-law-making powers of the state legislature
under President’s Rule?

Article 356(1)(a) states that the President may declare that the “powers of the Legislature of
the State” shall be exercised by or under the authority of Parliament. Petitioners had
suggested that there is a difference between “law-making and non-law-making powers” of the
state legislature, arguing that only legislative and not constituent power is transferred to
Parliament under President’s Rule.

CJI D.Y. Chandrachud held that no such distinction exists under Article 356. He noted that
interpreting the phrase “powers of the legislature” to allow Parliament to exercise all
constitutional powers of the Legislative Assembly would limit the power of the state.
“However,” he continued, “the Constitution recognises such reduction of federal power when
the Proclamation under Article 356 is in force.”

Is CO 272 of 2019 valid?

Next, the Chief considered the validity of the process by which Article 370 was abrogated.
The Union abrogated the provision through two Constitutional Orders (COs) CO
272 and 273.
In CO 272, the Union amended Article 367 (an interpretation clause) by replacing the words
“Constituent Assembly” in the proviso to Article 370(3) with “Legislative Assembly.” The
Union had asserted that this method was valid under Article 370(1)(d) which allows for
provisions of the Indian Constitution to apply to J&K, subject to exceptions and
modifications by the President.

This, the Chief held, was invalid and unconstitutional. The reason was twofold. First, an
amendment to Article 370 could only be made under the process prescribed by Article 370(3)
and not through an amendment to an interpretation clause of the Constitution. Second, the
“concurrence” of the state government was a necessary component under Article 370(1)(d).

Previously, in Maqbool Damnoo v State of Jammu & Kashmir (1972), a similar route was
taken by the Union to replace the phrase “Sadar-i-Riyaasat” in Article 370 with the word
“Governor” by amending Article 367. The majority held that it was not an amendment to
Article 370 but rather a clarification to reflect the state of affairs at the time. Similarly in
certain other COs where changes were made to Article 370 using the Article 367 route, they
did not modify the essence of the Article in a “manner that is appreciable or significant.”
Therefore, the Union could not use these examples to claim that CO 272 was valid.

With CO 272, the Court said, it was clear that “while the change sought to be made by
paragraph 2 of CO 272 may appear to be a modification or amendment of Article 367 at first
blush, its effect is to amend Article 370 itself.”

However, the Chief went on to hold that this did not render CO 272 as a whole as
unconstitutional because the President had the power under Article 370(1)(d) to make “all or
part of the Constitution” applicable to J&K. Petitioners had argued that 370(1)(d) “only
contemplates a piece-meal approach” and that the entire Constitution can only be applied by
exercising the power under Article 370(3), by abrogating Article 370. The Court held that
applying all the provisions of the Constitution of India to J&K under 370(1)(d) had the “same
effect” as declaring that Article 370 ceases to exist using the power under 370(3).

Further, the consultation of the state government was not essential under 370(3) as the
President had “unilateral” power to declare that Article 370 ceased to exist. In other words,
the President was not mala fide in issuing CO 272. To show that it was mala fide, the Court
said, “it is necessary to show that the power was exercised with an intent to deceive.”
Deception can “only be proved if the power which is otherwise unavailable to the authority or
body is exercised” or if the available power is “improperly exercised.” Since concurrence
under 370(3) was not necessary in the first place to apply the whole Constitution to J&K,
there was no improper exercise of powers when the President took the concurrence of the
Union of India (on behalf of the State Government).

Therefore, the Court held that CO 272 is valid to the extent that it applies all the provisions of
the Constitution of India to J&K.

Justice Kaul, in his concurring opinion, agreed that it was not permissible to use the
interpretation clause (Article 367) to amend Article 370. Therefore, he also held that
paragraph 2 of CO 272 was invalid to the extent that it modified Article 367 to effectively
amend Article 370. However, since the President had powers to apply the whole of the
Constitution to J&K under Article 370(1)(d), the rest of CO 272 was valid and constitutional.

CO 273 was not issued with malicious intent

In CO 273, the President exercising powers under Article 370(3) declared that “…all clauses
of the said Article 370 shall cease to be operative….”

CJI Chandrachud wrote that while deciding if the power under 370(3) must be exercised, the
President has to determine whether “the special circumstances which warranted a special
solution in the form of Article 370 have ceased to exist.” This was a “policy decision which
completely falls within the realm of the executive.” However, the Chief wrote that the
President’s decision was subject to review if his intention was mala fide.

The Chief found that the President’s intention was not mala fide. The reasoning he advanced
was that the Union and the state have integrated “through a collaborative exercise” through a
“slew” of Constitutional Orders since 1950. The President made the whole of the Indian
Constitution applicable to J&K under Article 370(1)(d) to ensure its complete integration into
India.

The Constitution of J&K stands inoperative

The Bench held that the Constitution of J&K was always subordinate to the Constitution of
India. The effect of CO 272 and 273, CJI Chandrachud wrote, was that the whole of the
Constitution of India applied to J&K just as it did to other states and Union Territories.

Under the Constitution of J&K, only certain provisions of the Indian Constitution applied to
J&K. “The implicit but necessary consequence of the application of the Constitution of India
in its entirety to the State of Jammu and Kashmir is that the Constitution of the State is
inoperative,” the Chief wrote.

Reorganisation of J&K: procedurally valid, substantive question left open

The J&K Reorganisation Act, 2019 was enacted by Parliament under Article 3 of the
Constitution. During the hearing, the petitioners contended that the Act was unconstitutional
for two main reasons. First, it was enacted without fulfilling the prerequisites of Article 3.
Second, it changed the character of a state entirely by “reducing” it to two Union Territories.
To determine the scope of Article 3, the Court delved into the history of states and union
territories, the need for union territories and the reason for introducing Article 3.

The Chief wrote that states and “constituent units” at the time of independence mirrored the
systems of bifurcations that existed during the British rule. Article 3, he said, was drafted to
“subserve an arrangement in place until a reclassification which was suited to the needs of the
local populace and which was based on a careful evaluation of administrative, cultural,
linguistic, financial, and other relevant considerations rather than on the expediency of the
colonial government.”

Federalism which comprises two units of Union and state, he said, was part of the basic
structure of the Indian Constitution. States are not dependent on the Union for their
autonomy. However, Union Territories are not ‘viable administrative units’ and do not have
the means to sustain on their own. They also do not have the degree of autonomy that states
do.

CJI Chandrachud discussed the difference between extinguishing a state and the character of
a state. Under Article 3, new states can be formed by the separation of territory from any
state, by uniting two or more states or parts of states, by uniting any territory to a part of any
state or by increasing the area of any state, by diminishing the area of any state, altering the
boundaries of any state, or altering the name of any state. However, an administrative unit
could lose its “character” if it is converted to a Union Territory without retaining any part of
its statehood.

In the present matter, the majority held that there was no need to go into the question of
whether or not J&K lost its “character” because of the reorganisation into two Union
Territories. The judges relied on the submission of Solicitor General Tushar Mehta who had
told the Court that J&K’s statehood would be restored in due time and this would not impact
the Union Territory of Ladakh. Therefore, they left the question of determining the contours
of Article 3 open to be determined in a different case where the question emerges.

Justice Kaul agreed with the Chief’s reasoning.

On the procedure under which the Reorganisation Act was introduced, the Bench held that
under Article 3, the Union ought to have sent the proposal to the state legislature for their
views. Since the Union Parliament had assumed the role of the state legislature of J&K at the
time, the Union sought the views of both houses of Parliament which agreed with the
Reorganisation Bill. The question to consider was whether the Union accepting its own views
was valid. To answer this question, the Chief held that it was necessary to test if the Union
was acting mala fide. As established before, there was no malicious intention on the part of
the Parliament as its powers under Article 356 were not limited to law-making powers. It
could give consent to the reorganisation of the state.

Next, the second proviso to Article 3 provided that when it comes to altering J&K, the
consent of the state legislature must be sought. However, with CO 272, the entire
Constitution applied to J&K without exceptions and modifications. Thus, “the issue of
whether the second proviso to Article 3 could have been suspended in the exercise of the
power under Article 356(1)(c) no longer survives” the Chief held.

The Court directed that J&K’s statehood be restored as soon as possible. They also noted that
the legislative assembly elections of J&K need not await the restoration of statehood, and
issued a direction to conduct elections before 30 September 2024.

Justice Kaul: Set up a truth and reconciliation commission to address human rights violations
in J&K

In the concluding pages of his judgement, Justice Kaul penned an emotional epilogue. He
recommended that the Union set up a “truth and reconciliation Commission” just like South
Africa did in its post-apartheid era. “This Commission should be set up expediently before
memory escapes. The exercise should be time-bound. There is already an entire generation of
youth that has grown up with feelings of distrust and it is to them that we owe the greatest
duty of reparation,” he wrote.

He acknowledged that to ask the Union to set up the Commission was beyond the scope of
the Court. However, he reasoned that transitional justice was a facet of transformative
constitutionalism and “encompassed responsibility of both State and non-State actors
concerning human rights violations.” The Court, he said, had previously taken steps in cases
such as Vishaka v State of Rajasthan (1997) to provide flexible solutions to fundamental
rights violations.

He cautioned that the Commission must not turn into a criminal court. Rather, he
recommended that the Commission “follow a humanised and personalised process enabling
people to share what they have been through uninhibitedly.”

12. IN RE: INTERPLAY BETWEEN ARBITRATION AGREEMENTS

UNDER THE ARBITRATION AND CONCILIATION ACT 1996 AND
THE INDIAN STAMP ACT 1899 2023 INSC 1066 13-12-2023

Judgement Pronouncement: Validity of an Unstamped Arbitration Agreement

The Supreme Court in a 3:2 split held that an unstamped arbitration agreement cannot be
enforced until the stamp duty has been paid.

A 5-Judge Constitution Bench led by Justice K.M. Joseph delivered a Judgement that could
have wide-ranging implications for the future of arbitration proceedings in India. The
majority held that an unstamped arbitration agreement is not enforceable until the stamp duty
and penalties have been paid.

Three Judges were in the majority. Justice A. Bose co-signed Justice Josephs’s decision and
Justice C.T. Ravikumar wrote a concurring opinion. Justices A. Rastogi and H. Roy authored
separate dissenting opinions and emphasised that the Court should limit its involvement in
arbitration disputes.

Background

Under the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’), if parties cannot agree
on an arbitrator they may approach High Courts or the Supreme Court to appoint one for
them. At this stage, the Court can only confirm the ‘existence’ of an arbitration agreement and
cannot get involved in the case any further. This restriction was imposed through the 2015
Amendment to the Arbitration Act so that arbitration disputes could be speedily disposed of.
However, the Supreme Court has gone back and forth on what constitutes a valid arbitration
agreement to prove its ‘existence’. Specifically, if the parties haven’t paid stamp duty on the
contents of the agreement, is it still valid?

In 2011 a Supreme Court Division Bench decided the case of SMS Tea Estate Pvt. Ltd. v
Chandmari Tea Company Pvt. Ltd. The Bench held that an unstamped arbitration agreement
cannot be enforced. This position was restated in Garware Wall Ropes Ltd. v Coastal Marina
Constructions and Engineering. Ltd (2019), where the SC held that contracts (including
agreements) are only enforceable if they are duly stamped.

Following a dispute over the invocation of a bank guarantee in a contract for coal
transportation between Indo Unique Flame Ltd. and N.N. Global Mercantile Pvt. Ltd., the
latter approached the Supreme Court and claimed the agreement was unstamped and
unenforceable. In January 2021, a 3-Judge Bench disagreed with the decisions in SMS Tea
Estates and Garware. However, despite overruling the two decisions the Bench also referred
the case to a 5-Judge Constitution Bench to settle the debate once and for all.

Majority Opinion: Paying Stamp Duty Necessary for Valid Arbitration Agreement

Justice Joseph in his Judgement held that an unstamped agreement would not be enforceable
and would be void as per Section 2(g) of the Indian Contract Act, 1872. This is in line with
the SC’s reasoning in Garware. Further, as per the Arbitration Act, the SC must be provided
with a ‘certified copy’ of the arbitration agreement which must indicate the stamp duty that
was paid. Without this, the SC cannot entertain an application to refer the parties to
arbitration.

He then highlighted the obligation of the Court under Section 33 of the Indian Stamp Act,
1899 (the Act) to ‘impound’ or take legal possession of any unstamped agreement until the
stamp duty is paid. The agreement will then be inadmissible as evidence and cannot be acted
upon as per Section 35 of the Act. The SC can only consider the agreement after the stamp
duty and the necessary penalties for non-payment have been paid as per Section 42 of the
Act.

Justice Ravikumar concurred with Justice Joseph and wished to add to the holding. Under
Section 11(6)(A) of the Arbitration Act the SC must ascertain the ‘existence’ of an arbitration
agreement. In order to do so, the arbitration agreement must be admissible as evidence which
requires the payment of stamp duty.
Dissenting Opinion: Requiring Stamp Duty at Appointment Stage Defeats Purpose of
Arbitration Act

Justice Rastogi was the first Judge to give their dissenting opinion. He emphasised that the
Courts must be cautious when they are examining an arbitration agreement so that they don’t
open the door to judicial intervention. This would be opposed to the purpose of the
Arbitration Act, which is to ensure effective and efficient arbitration proceedings. Further,
issues regarding stamp duty fall under the purview of the arbitrator as well. They can deal
with these issues instead of allowing judicial intervention.

Justice Roy dissented as well and agreed with Justice Rastogi on the purpose of the
Arbitration Act and how requiring stamp duty to be paid at the appointment stage would
frustrate this purpose. In order to avoid stalling the proceedings, he said the decision should
be deferred to the arbitrator. Finally, Justice Roy made a plea to the Legislature to amend the
stamp act to address any inconsistencies between the Stamp Act and the Arbitration Act.
 3 JUDGES BENCH Supreme Court of India

1. K.T.V. Health Food Private Limited vs Union Of India on 1 February,

2023

33. The appellants would contend that CRZ-I provides for the harshest regime having regard
to the fact that the areas are ecologically sensitive and the geomorphological features play a
role in the maintaining the integrity of the coast. They included mangroves. In case, the area
of mangroves was more than 1000 sq.mts, a buffer of 50 mts. along the mangroves was to be
provided. Sand dunes came under CRZ-I, as did corals and coral reefs and associated
biodiversity.

34. It may be true that the appellant had secured permission of the local authority. Shri Ranjit
Kumar may be correct in contending also that the laying of the pipeline ensured that
additional vehicle load was not thrust on the Chennai port. There may be merit also in the
contention of the appellants that the no objection certificate may indicate that the pipeline
would lead to increased evacuation of edible oil through the pipeline, leading to increased
port efficiency. As found by the NGT and not disputed by the fifth respondent also the power
to grant post facto approval flowed from paragraph-4.3 inserted in the 2011 Notification,
though in the year 2018. The case of the appellant that the storage facility is located in CRZ II
is beyond dispute. The storage facility being located on the landward side may be correct.
The appellants assertion that between the storage facility and the Bay of Bengal there exists
the Ennore Express Highway appears to be correct. We proceed on the basis further that the
distance between the entrance of the storage facility and the sea shore is ‘160 feet’. Laying of
pipeline is permissible in CRZ I. Appellant’s contention that there is no space at the Chennai
port is sought to be buttressed with reference to certificate dated 24.08.2016. We may notice
its contents:

 “The cargo through put and number of vehicles moving in and out of Chennai
Port has increased manifold over the past years. In order to reduce the road
traffic and resultant congestion, the port has been encouraging alternate modes
of cargo evacuation like Rail evacuation and evacuation through pipeline.
 Accordingly Chennai Port has permitted M/s. KTV Health Food Private
Limited to lay pipeline from BD2 berth where the firm is laying a 10 inch
 pipeline for evacuation of the cargo. This will result in increased evacuation of
edible oil through pipeline thus avoiding inter carting using tanker lorries.
 This will in turn result in better turnaround of the vessels thereby enabling the
port to handle more and more volume of edible oil cargo and vessels thus
increasing the port efficiency. This certificate is issued to enable the firm to
obtain the required statutory clearances for laying the pipeline.”

35. It will be noticed that the Certificate is silent as regards the storage facility and it being in
the port. The Certificate does not exactly declare that there is no space at the Chennai port.
Appellants may be correct in contending that edible oil is not hazardous and that edible oil
imports may be necessary to meet the requirement of a growing population. It may be true
that there is no manufacturing process which may be involved in constructing or maintaining
the storage facility.

36. The contention of the appellants that by decongesting the traffic and allowing the edible
oil to be transferred through pipelines for onward transmission to the factories of the
appellant, the baneful impact flowing from tanker lorry traffic by way of pollution is reduced,
overlooks the true purport of the 2011 notification. We must demystify the object of the law
as contained in the coastal regulation notification. As far as pollution is concerned, it is the
subject matter of laws specifically relating to regulation and prohibition of activities on the
said score. A perusal of the 2011 notification reveals the following as the avowed objects: (i)
ensuring livelihood security to the fisher communities and other communities living in the
coastal areas, (ii) conservation and protection of coastal stretches; (iii) the protection of the
unique environment of the coastal stretches and its marine area; (iv) promotion or
development through sustainable manner based on scientific principles taking into account
the dangers of natural hazards in the coastal areas; (v) the aspect of sea level rise due to
global warming. Therefore, we are unable to agree with the appellants that as the laying of
the pipeline would result in greater efficiency in the functioning of the port or for that matter,
it would reduce the traffic congestion, and what is more, thereby there would be a reduction
in the pollution may not by itself be relevant or for concluding the issue. It is the duty of the
Court to glean the true object of a law and give effect to it. It is equally the duty of the Court
to eschew from its consideration matters which may not be strictly germane to the object.
Hence, we proceed on the basis that the argument based on increased efficiency of the port
and avoidance of traffic congestion, and the decreased pollution in the landward area, as it
were, may not be by themselves relevant.
43. We have made this discussion only to remind ourselves that in interpretation of the
Notification we are concerned with, a pursuit of a purposive interpretation or a search for a
rationale which the Court finds fair may meet with limitations which flow from the object of
the maker of the notification being confined to the plain meaning of the words used. No
doubt, a situation found in the facts of the case reported in M. Nizamudeen (supra) may call
for a different approach.

55. We notice certain salient features. CRZ-II has been classified in para 7 as areas that have
been developed up to or close to the shore line. The storage tank of the appellant in the first
case appears to be located at a distance of 160 feet from the shore line. At the same time, it is
located a few kilometres away from the Chennai port. We have already noticed that under
CRZ III, the facility of storage of non-hazardous materials including edible oil is permitted
only at a distance between 200-500 meters. This is even though both handling and storage of
petroleum products is permitted, both within a distance of up to 200 meters from the high tide
line as also between 200-500 meters from the high tide line. It may defy logic. At least at first
blush. We have already set out the objects of the notification. They include guarding against
the dangers of natural hazards in coastal areas and the sea level rise due to global warming.
This is no doubt also to be balanced with the need for sustainable development. The coastal
regulation appears to be based on considerations which appear to accommodate conflicting
interests premised on considerations of what is felt as indispensably necessary and the nature
of the zone in question. Allowing storage facilities for non-hazardous activities like edible oil,
is, apparently, considered as an indispensable part of the operation of a port. The Port
Authorities would have full control over the storage facility located within its limits. No
doubt, Section 35 of the Major Port Trust Act, 1964, inter alia, empowers the port to execute
works outside its limits for securing and storing goods to be landed or to be shipped. The
storage tanks in question are not works executed by the port.

56. As far as the case that is sought to be built up on the basis that since CRZ-II permitted
buildings on the landward side of the existing road, we must notice that this is not the basis
for the decision of the first respondent which was successfully impugned before the NGT.
We, in fact, queried Smt. Archana Pathak Dave, learned counsel for the first respondent as to
whether this was the basis. She did not appear to support the decision on the basis that it
forms the basis for the decision. We may notice further, the following pleading of the first
respondent which has been adverted to by the NGT in their reply affidavit before the NGT
even:
“5. It is submitted that the said activity under scrutiny is a permissible activity and regulated
under para No. 8(I)(i) (b), para No. 8(I)(ii)(f) and para No. 8.II.(vi) of the CRZ Notification,
2011.”

2. Union Of India vs Parashotam Dass on 21 March, 2023

(2) An application to the Tribunal for leave to appeal to the Supreme Court shall be made
within a period of thirty days beginning with the date of the decision of the Tribunal and an
application to the Supreme Court for leave shall be made within a period of thirty days
beginning with the date on which the application for leave is refused by the Tribunal.

(3) An appeal shall be treated as pending until any application for leave to appeal is disposed
of and if leave to appeal is granted, until the appeal is disposed of; and an application for
leave to appeal shall be treated as disposed of at the expiration of the time within which it
might have been made, but it is not made within that time.”

ix. SLP(C) No.1788/2023 titled Davinder Singh v.

Union of India.

II. SLP(C) No.34797/2014 titled Union of India v. Parashotam Dass, which was filed by the
Union of India on merits challenging the judgment of the High Court granting relief to the
respondent. The matter would have to be considered by a two Judges Bench of this Court on
merits.

IV. The vires of Sections 31 and 32 of the said Act were under challenge in WP(C)
No.76/2016 titled Gurbux Singh Dhindsa v. Union of India, filed under Article 32 of the
Constitution by the father of an Air Force officer who was killed in an operational area in
J&K. He was claiming interest over the relief granted by the Armed Forces Tribunal but
could not have filed a direct appeal since the matter was personal to the litigant and did not
involve any point of law of general public importance and High Courts were not entertaining
matters in view of the judgment in Major General Shri Kant Sharma & Anr.29 case.

It was submitted that prayer for declaring Sections 30 & 31 as ultra vires would not be
pressed in case the writ jurisdiction under Article 226 is held to be maintainable and, thus, the
prayer was to dispose of this matter with liberty to approach the High Court. We accept the
plea and order accordingly.
34. The larger question having been answered, the aforesaid individual matters shall be dealt
with depending on the facts of each case, as per the aforesaid directions passed by us.

35. The appeals and the writ petition are disposed of in the aforesaid terms leaving the parties
to bear their own costs.

March 21, 2023.

Narayan Chetanram Chaudhary v. State of Maharashtra

A three-judge Bench of Justices Aniruddha Bose, KM Joseph and Hrishikesh Roy ordered
the immediate release of death row convict Narayan Chetanram Chaudhary after finding that
he was only 12 years old at the time of commission of the offence.

The Court ordered his release after concluding that his claim of juvenility was true.

The appellant had spent 28 years in prison, 25 of those as a death row convict for the 1994
Rathi family murders in Pune in which two children and a pregnant woman were murdered.

During his trial as well as appeals against his conviction, courts including the Supreme Court
had recorded his age as being between 20 to 22 years.

After his death sentence was confirmed, Chaudhary and one of his two accomplices,
Jeetendra Nainsingh Gehlot, submitted mercy petitions to the President. In October 2016,
Gehlot's death penalty was reduced to life imprisonment, while Chaudhary withdrew his
mercy plea and instead filed a review petition, claiming to have been a minor at the time of
the crime.

INDIRA JAISING V. SUPREME COURT OF INDIA THROUGH ITS

SECRETARY GENERAL

“Voting by secret ballot should not be the rule but clearly an exception”; Supreme Court
modifies guidelines for designation of Senior Advocates Supreme Court said that the process
of improvement is a continuous one and that it learns from every experience. This ruling is
one more step in the fine-tuning system of designation of Senior Advocates, and it hopes it
achieves the purpose.
Supreme Court: In an application filed by Senior Advocate Indira Jaising against the existing
system of designation of Senior Advocates, terming it flawed as it was not objective, fair, and
transparent, and thus did not take into account considerations of merit and ability, the 3-Judge
Bench of Sanjay Kishan Kaul*, Ahsanuddin Amanullah, and Aravind Kumar, JJ. has fine-
tuned the guidelines laid down in the 2017 Judgment to bring in greater transparency and
objectivity in the designation process.

The Court examined the History and rationale for designation of Senior Advocates in India
and said that the designation of Senior Advocates in India is a privilege awarded as a mark of
excellence to advocates who have distinguished themselves and have made a significant
contribution to the development of the legal profession.

Further, after perusing the criteria for designation of Senior Advocates, the Court said that
under Section 16(2) of the Advocates Act, the Supreme Court and the High Court have the
power to designate an advocate as a Senior Advocate with his consent. In the case of the
Supreme Court, this power is provided in Rule 2 of Order IV of the Supreme Court Rules,
2013. Further, before the introduction of the Advocates (Amendment) Act, 1973
(‘Amendment Act'), the criteria for designation as Senior Advocate was based on “ability,
experience and standing at the Bar”. Pursuant to the Amendment Act, this criterion was then
changed to “ability, standing at the Bar or special knowledge or experience in law”.
Therefore, the higher judiciary in India has the sole discretion to designate an advocate as a
Senior Advocate based on such parameters.

However, regarding the High Court, there was no uniform criteria and different High Courts
in the country had different criterion for designation of Senior Advocates. The Court noted
that in the Supreme Court, the applications for Senior Advocates were subject to deliberation
by the Full Court and were put to vote through secret ballots. Therefore, the designation was
not based on any objective criteria. The Court also referred to the 2017 Judgment1, wherein a
3-Judge Bench of this Court laid down a series of guidelines to bring in greater transparency
and objectivity in the designation process. Further, the 2017 Judgment was thereafter given
effect by the Supreme Court Guidelines to Regulate Conferment of Designation of Senior
Advocates, 2018 (‘2018 guidelines').

The Court noted that in paragraph 74 of the 2017 Judgment, the guidelines enumerated may
not be exhaustive and may require reconsideration by suitable additions/deletions in the light
of the experience to be gained over a period. Thus, the 3-JudgeBench left it open for
consideration by Supreme Court at such point of time that the same may become necessary...