Supreme Court Weekly Round Up [April 19 to April 25, 2021]

JUDGMENTS THIS WEEK

1. 'Ad-Hoc Judges Not An Alternative To Regular Appointments' : Supreme Court Passes Guidelines On Appointment Of Ad-Hoc Judges In HCs Under Article 224A

Title : Lok Prahari through its General Secretary V N Shukla IAS (Retd) vs Union of India and others

Citation : LL 2021 SC 225

A bench comprising Chief Justice of India SA Bobde, Justices Sanjay Kishan Kaul and Surya Kant this week passed a slew of guidelines regarding the appointment of ad-hoc judges in High Courts under Article 224A of the Constitution.

The bench passed the judgment in the case Lok Prahari vs Union of India. Lok Prahari, an NGO, had approached the Top Court through a PIL filed under Article 32 seeking the invocation of Article 224A to tackle the problem of mounting case arrears in High Courts.

While agreeing that the discretion of the High Court Chief Justice cannot be curtailed, the bench said that certain general guidelines are needed so that the power under Article 224A is exercised in a transparent manner.

The Supreme Court has laid down 5 trigger points which can activate the process under Article 224A.

The Trigger Point cannot be singular and there can be more than one eventuality where the it arises –

a.If the vacancies are more than 20% of the sanctioned strength.

b.The cases in a particular category are pending for over five years.

c.More than 10% of the backlog of pending cases are over five years old.

d.The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court.

e. Even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more.

Read Also: 'If Vacancies Are More Than 20% Sanctioned Strength' : Supreme Court Lays Down 5 Trigger Points To Appoint Ad-Hoc Judges In High Courts

2. Consent Of Parties Cannot Obviate Duty Of Court To Indicate Its Reasons For Granting Or Refusing Bail: Supreme Court

Case: Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana Makwana (Koli)

Citation: LL 2021 SC 221

The bench comprising Justices DY Chandrachud and MR Shah observed that consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refuse bail.

The observation came while setting aside the orders of the High Court of Gujarat granting bail, under Section 439 of the Code of Criminal Procedure, to six murder accused who were arrested for their alleged involvement in five homicidal deaths. In the order granting bail, the High Court recorded that 'Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order'.

"The grant of bail is a matter which implicates the liberty of the accused, the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well-settled principle that in determining as to whether bail should be granted, the High Court, or for that matter, the Sessions Court deciding an application under Section 439 of the CrPC would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place. These observations while adjudicating upon bail would also not be binding on the outcome of the trial. But the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail." the Bench observed.

3. Indian Parties Can Choose A Foreign Seat For Arbitration: Supreme Court

Case: PASL Wind Solutions Private Limited Vs. GE Power Conversion India Private Limited [CA 1647 OF 2021]

Citation :LL 2021 SC 226

A three judge bench headed by Justice Rohinton Fali Nariman this week held that parties to a contract who are Indian nationals or Companies incorporated in India can choose a forum for arbitration outside India.

The bench was considering the question whether two companies incorporated in India can choose a forum for arbitration outside India in the case PASL Wind Solutions Private Limited v. GE Power Conversion India Private Limited.

4. Mandamus Cannot Be Issued For Setting Up An Adjudicatory Body Or Tribunal: Supreme Court

Case: John Paily vs. State of Kerala [WPC 428/2021]

Citation: LL 2021 SC 227

Bench comprising of Justices DY Chandrachud and MR Shah observed this week that a mandamus cannot be issued by this Court for setting up an adjudicatory body or tribunal.

The court observed thus while dismissing a writ petition filed by John Paily and others who sought a direction to set up an independent Tribunal comprising of retired High Court judges who can look into the claims of each parish Church to determine which faction/denomination must have control over each such Church. They also sought a direction to the said Tribunal to hand over the management of concerned Church to the denomination constituting majority, or in the alternative, to partition all disputed Churches and their properties equitably.

"Entry 11A of the Concurrent List of the Seventh Schedule to the Constitution deals with, inter alia, "constitution and organization of all courts, except the Supreme Court and the High Courts". Having due regard to the provisions of Articles 245 and 246 of the Constitution, no such mandamus can be issued by this Court. Nor can a direction be issued by this Court to the legislature of a State to enact a law." the bench observed.

5. GST - Provisional Attachment Power 'Draconian'; Not Intended To Authorize Commissioners To Make Preemptive Strikes On Assessee's Property: Supreme Court

Case: Radha Krishan Industries vs State of Himachal Pradesh [CA 1155 of 2021]

Citation: LL 2021 SC 222

Bench comprising of Justices DY Chandrachud and MR Shah held that the power of provisional attachment under GST laws must be strictly construed, being a draconian power, and that the same should be exercised only on the basis of tangible material.

The power to order a provisional attachment of the property of the taxable person including a bank account is draconian in nature and the conditions which are prescribed by the statute for a valid exercise of the power must be strictly fulfilled, the Supreme Court observed while interpreting Section 83 of the Himachal Pradesh Goods and Service Tax Act.

The bench held that the exercise of the power for ordering a provisional attachment must be preceded by the formation of an opinion by the Commissioner that it is necessary so to do for the purpose of protecting the interest of the government revenue. Before ordering a provisional attachment the Commissioner must form an opinion on the basis of tangible material that the assessee is likely to defeat the demand, if any, and that therefore, it is necessary so to do for the purpose of protecting the interest of the government revenue.

Moreover it was held that the formation of an opinion by the Commissioner under Section 83(1) must be based on tangible material bearing on the necessity of ordering a provisional attachment for the purpose of protecting the interest of the government revenue.

IMPORTANT APEX COURT UPDATES

1. Supreme Court Takes Suo Moto Cognizance Of COVID Issues

The Supreme Court this week took suo moto cognizance on issues related to oxygen supply, drug supply, vaccine policy in relation to COVID19 pandemic.

A bench comprising Chief Justice of India SA Bobde, Justices L Nageswara Rao and S Ravindra Bhat took this suo moto action in the case "In Re : Distribution of Essential Supplies and Services During Pandemic" after noting that at least seven High Courts have been considering matters related to supply of oxygen, medicines, hospital services etc., to COVID-19 patients.

Taking suo moto cognizance of issues related to distribution of essential supplies and services during the pandemic, the Supreme Court has issued notice to Centre, State Governments, Union Territories and the parties who have approached the High Courts to show-cause why uniform orders not be passed by the Supreme Court in COVID-19 related issues.

The Court had appointed Senior Advocate Harish Salve as an amicus curiae until he recused later.

Read Also: Show Cause Why Uniform Orders Not Be Passed By Supreme Court In COVID Related Issues : SC Issues Notice To Centre, States, UTs & Parties Before HCs

2. "I Don't Want The Case To Be Heard Under a Shadow": Amicus Curiae Harish Salve Recuses From COVID19 Suo Moto Case In Supreme Court

Senior Advocate Harish Salve recused himself this week as the Amicus Curiae in the suo moto case taken up by the Supreme Court on issues related to oxygen supply, drug supply, vaccine policy in wake of the COVID-19 pandemic.

"I don't want the case to be heard under a shadow that I was appointed because of my school friendship with the CJI. I did not know our bar was divided between advocates who appear for industries and against it. I don't want aspersions to be cast", stated Salve.

Furthermore, he stated "Today, we have lost the narrative when cases used to be fought gracefully".

To this, the CJI responded that he was pained to hear the same and that though they were not happy to read what Senior Counsels had written, but everyone had their own opinion.

3. Vedanta Seeks Supreme Court Permission To Reopen Sterlite Plant For Oxygen Production; Centre Supports

Copper manufacturer Vedanta Ltd has moved an urgent application before the Supreme Court seeking permission to re-open its plant in Tamil Nadu - which has been closed for violations of environmental laws - saying that it wanted to help the country with free production of medical oxygen for COVID patients.

Senior Advocate Harish Salve, appearing for Vedanta, mentioned the matter before Chief Justice of India SA Bobde earlier this week.

The Central Government supported the request of Vedanta. Solicitor General of India Tushar Mehta said that the country is in dire need of oxygen.

Read Also: 'Just Because There Is A Problem With Vedanta, You Won't Manufacture Oxygen And Let People Die?' Supreme Court Asks Tamil Nadu Govt

4. Plea In Supreme Court Seeks Independent Inquiry Into The Tragic Nashik Oxygen Leak Case, Which Claimed 24 Lives

A PIL has been filed before the Supreme Court seeking an independent judicial enquiry into the tragic Nashik oxygen leak case, that consumed the lives of about 24 patients this week.

The petition has been filed by a Mumbai based NGO, Save Them India Foundation through Advocate Vishal Tiwari.

At least 24 patients on life support died after a leak in the main medical oxygen tank disrupted the supply of the gas at Dr. Zakir Hussain Hospital in Maharashtra's Nashik on Wednesday.

Initial inquiry by the State attribute the leak to a valve malfunction and a high-level inquiry has been ordered to ascertain if there was any negligence on part of the hospital administration.

5. Supreme Court Stays Allahabad High Court Order Which Imposed Lockdown In 5 UP Cities

The Supreme Court this week stayed the Allahabad High Court judgment which directed the Uttar Pradesh Government to impose lockdown in five cities of Prayagraj, Lucknow, Kanpur, Varanasi and Gorakhpur till April 26 in view of the COVID19 pandemic.

A bench headed by the Chief Justice of India SA Bobde stayed the operation of the judgment after hearing the arguments of Solicitor General Tushar Mehta. The Solicitor General had made an urgent mention of the petition before the CJI today morning and requested for hearing of the matter today itself. Agreeing with this request, the CJI-led bench heard the SG after the listed matters were over.

Appearing for the UP Government, the SG submitted that the blanket lockdown in 5 cities by a judicial order will create immense administrative difficulties. He assured that the UP Government was doing the needful to contian the COVID-19 situation.

The Supreme Court has posted the matter after two weeks. It has sought a report from the UP Government on the steps taken by it in relation to the COVID-19 pandemic. The Court also appointed Senior Advocate PS Narasimha as an amicus curiae to assist it in the matter.

6. Supreme Court Forms Committee To Ascertain Quality & Quantity Of Yamuna River Water Released By Haryana To Delhi

The Supreme Court this week appointed a committee to conduct local inspection with regard to the quality and quantity of water released by the state of Haryana at Balla (upstream of the Yamuna river in Delhi), the level of the Wazirabad bank and whether the Delhi government is diverting the water to the Water Treatment Plants at Wazirabad, Chandrawal and Okhla before the water reaches the Wazirabad bank.

The bench of Justices L Nageswara Rao, AS Bopanna and V Ramasubramanian was hearing a writ petition by the Delhi Jal Board seeking appropriate directions to the state of Haryana over discharge of untreated pollutants, in view of the increased concentration of ammonia in the river water of Yamuna. It has been prayed that the Court ensure that enough water is supplied to the NCT of Delhi, at a level of 674.503 feet, in pursuance of the Supreme Court decision in the 1996 case of Delhi Water Supply, to ensure that the high concentration of ammonia in the water is diluted.

7. Supreme Court Forms Committee To Study Feasibility Of Under Grounding Of Over Head Power Lines To Protect Great Indian Bustard

The Supreme Court earlier this week passed directions regarding the under-grounding of over head electric lines in Rajasthan and Gujarat in order to protect Great Indian Bustard from extinction.

A High Level Committee has been constituted to examine the feasibility of under-grounding of over-head power lines.

The Supreme Court ordered that the recommendations of the committee shall be implemented by power-generators and other stake-holders. A bench comprising Chief Justice SA Bobde, Justices AS Bopanna and V Ramasubramanian passed the order in the case M K Ranjith Singh and others v. Union of India.

8. Supreme Court Hands Over Gokarna Mahabaleshwar Temple Management To Committee Headed By Former SC Judge Justice BN Srikrishna

The Supreme Court this week handed over the management of Gokarna Mahabaleshwar temple to an oversight committee headed by former Supreme Court judge Justice BN Srikrishna.

The Court passed the interim order in an appeal filed challenging Karnataka High Court's judgment of 2018 which quashed the Government's order handing over management of Mahabaleshwar temple at Gokarna to Ramchandrapura Math.

A three-judge Bench of CJI Bobde, Justice Bopanna and Justice Ramasubramanian said that in modification of all the interim orders passed by the Supreme Court earlier, the Gokarna Mahabaleshwar temple shall function under the oversight committee headed by Justice BN Srikrishna.