Spotlight On Recent Appointments To Supreme Court - Justice Ahsannuddin Amanullah

We traced the judicial career of Justice Pankaj Mithal in Part 1 and of Justice Dipankar Datta in Part II. In Part III, we offered a glimpse into the judicial philosophy of Justice Sanjay Karol. In Part IV, we offered some of the highlights of Justice P.V. Sanjay Kumar’s judicial pronouncements during his tenures as a High Court Judge and as the Chief Justice of the Manipur High Court.

In this part V, we highlight some relevant judgments of Justice Ahsannuddin Amanullah, during his career as a Judge of the Patna and Andhra Pradesh High Courts.

Background

Justice Amanullah was born on May 11, 1963. He pursued his B.Sc. (Hons.) (Chemistry) and LL.B. and enrolled with the Bihar State Bar Council on September 27, 1991. He practised predominantly in the Constitutional Courts, primarily the Patna High Court; appeared intermittently in the Supreme Court, and various High Courts (mainly Calcutta and Jharkhand High Courts), inter alia, in Constitutional, Civil, Criminal, Service, Co-operative, Taxation, Labour, Corporate, Forest matters and specialised in Constitutional and Service laws. He also appeared before the Central Administrative Tribunal, Commercial Taxes Tribunal, Board of Revenue, District Courts, the Consumer Disputes Redressal bodies, and in a few arbitrations.

He served as the Standing Counsel from March 2006 to August 2010 and later, Government Advocate from August 2010 onwards, for the State of Bihar in the Patna High Court. He was Special Counsel, Income-Tax Department, Government of India [Jharkhand High Court]. He served as the Counsel for the District Administration before the Commission of Inquiry into the Dalsingsarai (Samastipur) firing incident. He was specially nominated by the Advocate-General, Bihar at the request of the Advocate-General, Maharashtra to represent the State of Maharashtra and Maharashtra Police; and was empanelled by the Patna Legal Aid Committee for Criminal Appeals. He was Amicus Curiae in significant matters and was associated with social issues pro bono. He was pivotal in drafting, vetting subordinate/delegated legislation for the Bihar Legislature’s Acts during 2006-2011.

He represented various institutional and individual clients, including, but not limited to, Indian Railways, Unit Trust of India, Union Bank of India, RITES (previously Rail India Technical and Economic Services Limited), Indian Railway Catering and Tourism Corporation Limited (IRCTC), Bihar State Housing Board, Bihar State Electricity Board, Bihar State Text Book Publishing Corporation, Bihar State Cooperative Bank Limited, Bihar State Cooperative Marketing Union Limited (BISCOMAUN), Bihar Cooperative Land Development Bank Limited, Bihar State Agricultural Marketing Board, various Agricultural Produce Market Committees in Bihar, Bihar State Housing Cooperative Federation, Bihar State Credit and Investment Corporation (BICICO), Commercial Taxes Department (Government of Bihar), Magadh University (Gaya), Veer Kuer Singh University (Arrah), Bihar Industrial Area Development Authority, Bihar State Health Society, BSACS, Mahindra and Mahindra and Samsung Corporation Engineering & Construction Group.

His profile published on the Supreme Court’s website, gives the following additional information, which may be of interest to the readers:

He participated in the Bar Council of India Trust Inter-University Moot Court Competition, 1989 at Himachal Pradesh University, Shimla. He was the Assistant Returning Officer for the 2002 Bihar State Bar Council and 2006 Jharkhand State Bar Council elections. He was Member, General and Academic Councils, National Law School of India University. He was the first Judge to hold a paperless e-Court in the Patna High Court. He served as Chairman, Bar Council of India Committee for Qualifying Examination for Indian Nationals holding Foreign Law Degrees. He was Member, Bar Council of India Committee on the All India Bar Exam. He served as Chairman, Juvenile Justice Monitoring Committee, Patna High Court. He served as a Member, Board of Governors, Bihar Judicial Academy. He was Chairman, Patna High Court Legal Services Committee from May 21, 2021.

He was elevated as a Judge, Patna High Court on June 20, 2011, transferred to the Andhra Pradesh High Court on October 10, 2021 and re-transferred to the Patna High Court on June 20, 2022.

Elevated to the Supreme Court on February 6, he will retire on May 10, 2028, after completing a tenure of more than five years.

Highlights

Freedom of expression

In Vinay Kumar Pappu v The Union of India (2016), petitioners sought to restrain broadcasting of the film, ‘Jai Gangajal’ on the ground that it depicted defamatory references to the citizens, more particularly with regard to respondent No.2, who has been elected from the constituency which has not only been named in the movie, but also shows the role of the elected representatives of his constituency, ‘Bankipur’ as well as ‘Lakhisarai’ in a negative light.

Justice Amanullah concluded that the materials before the court were not sufficient to find that the apprehension of the petitioners were well founded or they were over sensitive to an innocuous portrayal with fleeting references having some connection with the post held by petitioner No.2, without justifiable ground. The petitioner No.2, having been elected much after completion of the movie, cannot complain of him being targeted with the object to identify him in real life.

Justice Amanullah considered the fact that the Film Certification Appellate Tribunal (FCAT), headed by a retired High Court Judge, had viewed the movie and after being aware of the objection of petitioner No.2, it could be deemed that such objection was considered, and still the FCAT did not direct any deletion or substitution with reference to the said objection.

He held that the court did not feel persuaded to itself once again undertake the exercise of viewing the movie for even if it reaches the conclusion that a different view is possible, it would rather lean in favour of freedom of speech and expression and not substitute its own views for that of the appellate body. Moreover, the law is also well settled that a decision may not be casually interfered with while exercising the power of judicial review merely on the ground that a different view is also possible. Once a statutory fact finding body has taken a conscious decision and there being no material on record to indicate that the same is perverse or apparently erroneous, it does not warrant interference, he held.

Legislative Privileges

In Kaushal Kaushik v The State of Bihar (2017), Justice Amanullah held that the House of the Bihar Legislature and the Committee of the Vidhan Sabha are two distinct and separate entities, and therefore, the latter is not under the purview of Article 212, for the purposes of invoking its protection. In this case, the challenge was to the jurisdiction of the Estimates Committee of the Bihar Legislative Assembly with regard to giving directions to the district officials relating to a matter which has been taken up by them and further follow up action by the state authorities. Article 212 relates to bar of interference by courts of any proceeding in the Legislature of a State on the ground of any alleged irregularity of procedure. Justice Amanullah held that the bar does not relate to the merits of a matter, and it is well settled that even the merits of proceeding of the Legislature of a State are open to judicial review, a classic example of the same being judicial review of a “No Confidence Motion’ by the State Legislature, which is a proceeding of the Legislature.

Quashed Criminal Proceedings Against Bihar CM

In March 2019, Justice Amanullah set aside the criminal proceedings against the Bihar Chief Minister, Nitish Kumar, in a 28-year-old murder case. He took note of the fact that Kumar had an alibi, as the then District Magistrate, Nalanda and the then Superintendent of Police, Nalanda had both categorically claimed that he was with them at the relevant time and in the district of Nalanda for the entire period of polling on the day of the incident on November 16, 1991 at Barh, which Kumar had represented in the Lok Sabha as an MP. Kumar was named as an accused for the killing of one Sitaram Singh during the Lok Sabha polls that year in the FIR lodged subsequently. The ACJM, Barh had initiated criminal proceedings in the case in 2009. This was challenged by Kumar before the Patna High Court the same year.

Divorced Muslim Women’s Right to Claim Maintenance Under Section 125 CrPC

In Bibi Mukbari Khatoon, W/o Md. Asfan Alam v State of Bihar (2019), Justice Amanullah set aside an order of a lower court which dismissed a maintenance application filed by a Muslim woman. The lower court had accepted the contention of the husband that since the wife had accepted divorce, she would be guided by the provisions of Muslim Women (Protection of Rights on Divorce) Act, and petition under Section 125 of the Code was not maintainable.

While considering the revision petition filed against this order, Justice Amanullah observed: “The petitioner has the option to seek maintenance under the Act or the Code. She, having chosen to move under the Code, cannot be said to be debarred under law on the ground that she is a divorced Muslim lady. This is in the teeth of and contrary to the law laid down by the Hon’ble Supreme Court in a catena of decisions, including that of Shabana Bano, in which also there is reference to earlier decisions as well as the Constitution Bench decision in Danial Latifi v Union of India.”

Environmental law

In Pawan Kumar Yadav v State of Bihar (2019, the truck of the petitioner was seized with sand located on it in the forest area in the district of Gaya. The petitioner argued that Section 52-D of the Indian Forest Act, 1927 does not authorize search and seizure by a person who is not a Forest Officer and in the present case, such seizure being made by the Forester, the very basis of such proceeding stood vitiated in law. The petitioner also claimed that sand being a minor mineral, is covered under the Bihar Minor Mineral Rules, 2017. Besides he also alleged that notice was not issued to the company, who is the owner of the sand, which was found loaded on the petitioner’s truck.

Justice Amanullah, interpreted the definition of ‘forest produce’ under Section 2(4)(b)(iv) of the Indian Forest Act, to include sand. Dismissing the petition, Justice Amanullah held that environmental laws, besides being substantive law, are required to be strictly implemented in today’s world as non conforming to these laws is leading to drastic and grave evil consequences on nature, which are irreversible and no slackness can be afforded or permitted on this front.

Significant Dissent

In Re: Suo Motu cognizance taken by the Court vide order dated March 1, 2021 of a structure on the north side adjacent to the Centenary Building of the Patna High Court which came up during the Covid-19 Pandemic v The State of Bihar (2021), the Patna High Court, by a 4:1 judgment, had directed the demolition of a structure being constructed close to the northern side of the newly inaugurated Centenary Building of the High Court.

The construction was a Waqf Bhavan, comprising a guest house, a guard room and a parking space on the ground floor, a library and a conference room on the first floor, and offices of the Waqf Board on the second and third floors. The Bihar State Building Construction Corporation Limited prepared the sanctioned map for the construction, approved by the Minority Welfare Department.

As per the directions of the Chief Justice of the High Court, the matter was registered as public interest litigation, and posted before a five-judge special bench consisting of Justices Ashwani Kumar Singh, Vikash Jain, Amanullah, Rajendra Kumar Mishra and Chakradhari Sharan Singh. The majority judgment ordered the demolition, on the ground that it compromised the security of the High Court, besides being illegal, and directed the Chief Secretary to inquire for legal non-compliances.

Justice Amanullah gave the dissenting opinion remarking that the said construction was irregular and not illegal. He observed that the violation was not of such magnitude that complete demolition was called for. Therefore, he suggested that the excess 10 feet height violating the bye-law could be demolished to fix the irregularity. He noted that the right of the Wakf Board and the Waqf Estate in question for construction of a building could not be curtailed as long as there is no violation of any legal provision. Considering the domino effect of ordering demolition, he noted that there were various buildings of the government/its agencies and courts in Bihar constructed similarly. This, he cautioned, would result in demolitions of multiple government buildings, which, besides burdening the State exchequer would deal a serious blow to such institutions which clearly would go against the public interest at large.

Right to Protest

In K.V. Krishnaiah v State of Andhra Pradesh (2022), the petitioner had filed the writ petition relating to grievance towards pay scales. The petitioner sought declaration that the state government order dated 17.01.2022 was illegal and arbitrary and contrary to the Andhra Pradesh Reorganisation Act, 2014 and the Constitution of India. The Andhra Pradesh Advocate General contended that when the Court had already been called upon by way of the writ petition filed by the Employees Union, it was not proper for the Union to give a call for, or proceed on strike, which could bring the State’s administrative machinery to a grinding halt.

After surveying the relevant case law, Justice Amanullah, sitting with Justice B.S.Bhanumathi had held that approaching a court would not prohibit the person in question from protesting in a legally permissible manner, subject to the caveat being the extant rules and regulations guiding the person concerned, inclusive of his status, if so, as a government employee. Clarifying that its remarks were in the nature of obiter, and it was not deciding the case on merits, the bench directed the listing of the case before the appropriate bench, as it was not listed before it according to the roster.

Possession of Secured Assets Under SARFAESI Act

In M/s Mangalagiri Textile Mills Private Limited v The State Bank of India (2022), the bench of Justice Amanullah and Justice Bhanumathi, interpreted Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, which enables taking physical possession of the secured asset/property, to mean that the borrower/occupier/person(s) in possession of the secured asset concerned, cannot be left in the lurch.

The main objective of the Act, the bench underlined, is to enable the secured borrowers to take physical possession of the assets of the defaulting borrowers in an expeditious manner; if no time limit is fixed it would be self-defeating inasmuch as though the statute indicates a time frame for the CMM/District Magistrate to pass an order, if the person/authority who is required to carry out the order does not do so within the time fixed, it would lead to an anomalous position in law as there is no remedy prescribed under the statute. “It would, thus, border on to extremity, as the authorised person/authority would be more powerful, in real terms, than the authority which passed the order conferring such power to take physical possession”, the bench held.

In Paragraph 31 of its judgment, the bench held that an essential component of judicial orders is certainty. If a CMM imposes a time-limit for taking over possession, such stipulated time has to be mandatorily adhered to; If the same is not done, be it for whatever reason, the appropriate course of action is to reapproach the CMM concerned for extension of time, the bench made it clear.

The judgment is considered significant for laying down the powers under Article 226 of the Constitution to mould relief.

Right to marry a person of one’s choice

In Amit Raj v The State of Bihar and others (2022), the bench of Justice Amanullah and Justice Purnendu Singh of the Patna High Court, held that societal approval of intimate personal relationships is not a basis for granting an adult couple, who married each other on their own volition, recognition in the eyes of law. In this case, the husband sought production of his wife, who was allegedly detained by her family members, for marrying against their wishes. The wife told the court that she married the petitioner voluntarily, and expressed her willingness to reside with him. The father of the girl, despite having some reservations initially, accepted their relationship, but claimed that his only concern was that his daughter should be safe and secure. The bench noted the petitioner’s submission that she would be safe and secure with freedom to pursue her interests.

After surveying the case law, the bench held that a woman’s choice of selecting her partner is a facet duly recognised by the Constitution The consent of the family/clan/community is unnecessary for two individuals to marry, as it is an act of choice, and enshrined under Articles 19 and 21 of the Constitution, the bench held. The bench ensured the safety and well-being of the petitioner and his wife, and dismissed a title suit before the Sub-Judge, Gopalganj, for declaring her marriage as null and void, as the same was not filed by her voluntarily.