Supreme Court Quarterly Digest - Constitution Of India [Jan-Mar, 2023]

Constitution of India, 1950 - Constitution does not prohibit lawyers practicing in the Supreme Court to be appointed as a Judge of the High Court - in fact, the Supreme Court has given imprimatur to the principle that in suitable cases Advocates practicing in the Supreme Court can be considered for appointment to the High Court. Ashok Pandey v. Union of India, 2023 LiveLaw (SC) 5

Constitution of India, 1950 - Constitutional Tort - A mere statement made by a minister inconsistent with the rights of a citizen of Part III of the Constitution may not constitute a violation of constitutional rights and become actionable as a constitutional tort. But, if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person or citizen, then the same may be actionable as a constitutional tort. [Justice Nagarathna dissents] Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1

Constitution of India, 1950 - Whether Minister’s statement can be vicariously attributed to government - A statement made by a minister even if traceable to any affairs of the state or for protection of the government cannot be attributed vicariously to the government by invoking the principle of collective responsibility- Justice Nagarathna dissents to hold that statements in official capacity reflecting views of the govt can be vicariously attributed to the govt. Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1

Article 3 - Formation of new States and alteration of areas, boundaries or names of existing States

Constitution of India, 1950; Article 3, 4, 239A - Parliament by making a law can convert an existing State into one or more Union territories. Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951

Article 4 - Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters

Constitution of India, 1950; Article 3, 4, 239A - Parliament is empowered by law to create a body of legislature for the Union territories of Puducherry and J&K.- Even if the law made by Parliament creating a body of legislature for Union territories of Puducherry and J&K has the effect of amending certain parts of the Constitution, it shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951

Article 12 – Definition “the State’’

Constitution of India, 1950; Article 12 - Indian Association for the Cultivation of Science (IACS) answers to the description of “the State” within the meaning of Article 12 of the Constitution of India, for it being financially, functionally and administratively under the control of the Government of India. Pushan Majumdar v. Union of India, 2023 LiveLaw (SC) 115

Article 14 - Equality before law

Constitution of India, 1950; Article 14 - Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation, which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. (Para 13.2) Association of Old Settlers of Sikkim v. Union of India, 2023 LiveLaw (SC) 28

Constitution of India, 1950; Article 14 - classification between Pushtaini and Gair-pushtaini Landowners is based on one class of landowners being sons of the soil, while the other class being mere landowners, who are not directly attached to the land- not reasonable classification- The justification given by the GNOIDA Authority, and the Full-bench of the High Court assumes that only Pushtaini landowners permanently reside in the subject land or that the subject land is the primary source of income only for Pushtaini landowners, and this assumption has been backed by no empirical data produced by the authority-t. Many Gair-pushtaini landholders, whose main area of residence or their main source of income is also the subject land, would be subject to great discrimination and injustice, if the same compensation that has been granted to the pushtaini landholders is not extended to them. (Para 38 to 40) Ramesh Chandra Sharma v. State of Uttar Pradesh, 2023 LiveLaw (SC) 123 : AIR 2023 SC 1117

Constitution of India, 1950; Article 14 - Equality test for permissible amendments – Right to Equality – Even permissible amendments would have to be tested on the touchstone of the right to equality enshrined in Article 14 of the Constitution – Reducing cut-off marks only for the purpose of providing employment to a particular category when other candidates had already acquired some right – Held, violative of right to equality being based not on objective criteria such as the candidates’ suitability but on extraneous reasons namely to accommodate otherwise ineligible candidates – Further held, cut-off marks could not be reduced in the absence of a sound reason that would indicate that the reduced marks also would be sufficient to determine suitability for appointment to advertised posts. (Paras 25, 30) Sureshkumar Lalitkumar Patel v. State of Gujarat, 2023 LiveLaw (SC) 137

Constitution of India, 1950; Article 14 - Supreme Court holds the condition imposed by GAIL on IPCL to be arbitrary- the contractual exercise of providing such a clause runs contrary to every commercial and common sense and is manifestly arbitrary, as IPCL is not being charged under any general terms but for a specific purpose. This purpose cannot exist in the contract in view of the master authority, i.e., the Union of India, providing to the contrary. (Para 21) Gas Authority of India Ltd. v. Indian Petrochemicals Corporation Ltd., 2023 LiveLaw (SC) 88 : AIR 2023 SC 833

Constitution of India, 1950; Article 14 - Test of classification - To survive the rigors of Article 14, the impugned classification must not only make it through the test of reasonableness, but also clear the Wednesbury Principle, and by extension the Proportionality test. (Para 41) Ramesh Chandra Sharma v. State of Uttar Pradesh, 2023 LiveLaw (SC) 123 : AIR 2023 SC 1117

Constitution of India, 1950; Article 14 - Test of Proportionality - The classification, as discussed above, if allowed to exist, can lead to several Gair-pushtaini landowners who may also need to be rehabilitated, cannot rehabilitate themselves without compensation for the same. Such a mischief, if allowed to exist, would not only nullify the purpose of the Act, but also violate the third and fourth principle of the proportionality test, and hence is liable to be struck down. (Para 55) Ramesh Chandra Sharma v. State of Uttar Pradesh, 2023 LiveLaw (SC) 123 : AIR 2023 SC 1117

Article 15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Constitution of India, 1950; Article 14, 15 - The female heirs, subject to the statutory rule operating in that field, are required to be treated equally to the male heirs. Gender equality is recognised by the world community in general in the human rights regime - Exclusion of women from inheritance on the ground of gender was a clear violation of the constitutional prohibition against unfair discrimination. (Para 15) Association of Old Settlers of Sikkim v. Union of India, 2023 LiveLaw (SC) 28

Article 19 - Protection of certain rights regarding freedom of speech, etc.

Constitution of India, 1950; Article 19(1)(a) - The grounds lined up in Article 19(2) for restricting the right to free speech are exhaustive. Under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2) cannot be imposed on the exercise of the right conferred by Article 19(1)(a) - Constitution Bench judgment- Justices S Abdul Nazeer, BR Gavai, AS Bopanna, V Ramasubramanian and BV Nagarathna unanimous. [Para 155, Majority judgment] Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1

Constitution of India, 1950; Articles 19 & 21 - Horizontal Application - A fundamental right under Article 19 or 21 can be enforced even against persons other than the state or its instrumentalities - Justice BV Nagarathna dissents to say only habeas corpus remedy can be horizontally applied against private persons. Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1

Article 20 - Protection in respect of conviction for offences

Constitution of India, 1950; Article 20(1) - the legal position to be taken into consideration is that an Amendment Act cannot post facto criminalize possession. This proposition does not require much deliberation and is well settled that retroactive criminal legislation being violative of Article 20(1), one of the fundamental rights guaranteed under part III of the Constitution is prohibited. Swetab Kumar v. Ministry of Environment, Forest and Climate Change, 2023 LiveLaw (SC) 245

Article 21 - Protection of life and personal liberty

Constitution of India, 1950; Article 21 - Right to die with dignity - Passive Euthanasia - Supreme Court Constitution Bench simplifies the procedure for executing living will/advance directive by modifiying the he judgment reported in Common Cause (A Registered Society) v. Union of India and Another (2018) 5 SCC 1 - the Court allows the application filed by Indian Society of Critical Care Medicine seeking clarification of the judgment. Common Cause v. Union of India, 2023 LiveLaw (SC) 79

Constitution of India, 1950; Article 21 – The State is under a duty to affirmatively protect the rights of a person under Article 21 even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency. Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1

Article 21 - Protection of life and personal liberty

Constitution of India, 1950; Article 14, 15, 21 - Income Tax Act, 1961; Section 10(26AAA) - The exclusion of Old Indian settlers, who have permanently settled in Sikkim prior to merger of Sikkim with India on 26.04.1975 from the definition of “Sikkimese” in Section 10(26AAA) is hereby held to be ultra vires to Article 14 of the Constitution of India and is hereby struck down. (Para 13- 17) Association of Old Settlers of Sikkim v. Union of India, 2023 LiveLaw (SC) 28

Constitution of India, 1950; Article 14, 15, 21 - Income Tax Act, 1961; Section 10(26AAA) Proviso - Proviso to Section 10(26AAA) inasmuch as it excludes from the provision of exemption a Sikkimese woman merely because she marries a non-Sikkimese after 01.04.2008 is totally discriminatory and violative of Articles 14, 15 and 21 of the Constitution of India - A woman is not a chattel and has an identity of her own, and the mere factum of being married ought not to take away that identity. (Para 15-17.1) Association of Old Settlers of Sikkim v. Union of India, 2023 LiveLaw (SC) 28

Article 25 - Freedom of conscience and free profession, practice and propagation of religion

Constitution of India, 1950; Articles 25, 26 - Even assuming that the excommunication of members of the Dawoodi Bohra community is always made on religious grounds, the effect and consequences thereof, on the person excommunicated needs to be considered in the context of justiciable Constitutional rights. The excommunication will have many civic consequences which will, prima facie, affect his fundamental right to live with dignity and the right to lead a meaningful life guaranteed by Article 21. Therefore, the question is is whether the said right of the community to excommunicate its members can be balanced with the other fundamental rights under Part III of the Constitution and in particular, Article 21. (Para 31) Central Board of Dawoodi Bohra Community v. State of Maharashtra, 2023 LiveLaw (SC) 97 : AIR 2023 SC 974 : (2023) 1 SCR 293

Constitution of India, 1950; Articles 25, 26 - the protection under Article 26(b) granted by the decision in the case of Sardar Syedna1 to the power to excommunicate a member of the Dawoodi Bohra community, needs reconsideration as the said right is subject to morality which is understood as Constitutional morality-This issue will require examination by a larger Bench. (Para 28) Central Board of Dawoodi Bohra Community v. State of Maharashtra, 2023 LiveLaw (SC) 97 : AIR 2023 SC 974 : (2023) 1 SCR 293

Constitution of India, 1950; Articles 25, 26 - Right to Excommunicate - prima facie, we find that the exercise of balancing the rights under Article 26(b) with other rights under Part III and in particular Article 21 was not undertaken by the Constitution Bench in the case of Sardar Syedna- This question is substantially in issue before the Bench of nine Judges in Sabrimala Temple Review . Moreover, the question whether the protection can be given by Article 26(b) to the practice of excommunication is to be tested on the touchstone of the concept of Constitutional morality as the said right is subject to morality. (Para 34) Central Board of Dawoodi Bohra Community v. State of Maharashtra, 2023 LiveLaw (SC) 97 : AIR 2023 SC 974 : (2023) 1 SCR 293

Constitution of India, 1950; Articles 32, 226, 227 - Judicial Review of Disciplinary Proceedings - In exercise of powers of judicial review interfering with the punishment of dismissal on the ground that it was disproportionate, the punishment should not be merely disproportionate but should be strikingly disproportionate - Only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review - Even in a case where the punishment is found to be disproportionate to the misconduct committed and proved the matter is to be remitted to the disciplinary authority for imposing appropriate punishment/penalty which as such is the prerogative of the disciplinary authority. (Para 6-7) Union of India v. Const. Sunil Kumar, 2023 LiveLaw (SC) 49 : AIR 2023 SC 554

Article 30 - Right of minorities to establish and administer educational institutions

Constitution of India, 1950; Article 30 - If an employee is continued in service by the management of any registered minority Secondary School receiving Grant-in-Aid from the State-Government, then such school would not be entitled to receive any grant in respect of the expenditure incurred for continuing such employee beyond the stipulated superannuation age. State of Gujarat v. H.B. Kapadia Education Trust, 2023 LiveLaw (SC) 127 : AIR 2023 SC 1155

Constitution of India, 1950; Article 30(1) - It is not open to the appellant society to claim complete immunity in undertaking this exercise and seek exemption from any interference by the Admission and Fee Regulatory Committee. (Para 16) Icon Education Society v. State of Madhya Pradesh, 2023 LiveLaw (SC) 202

Constitution of India, 1950; Article 30(1) - Setting up a reasonable fee structure is also a component of the right to establish and administer an institution, within the meaning of Article 30(1) of the Constitution, and every institution is free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly or in any form - it is permissible to regulate admission and fee structure for achieving that purpose. (Para 12) Icon Education Society v. State of Madhya Pradesh, 2023 LiveLaw (SC) 202

Article 32 - Remedies for enforcement of rights

Constitution of India, 1950; Article 32 - A petition under Article 32 of the Constitution cannot be maintained in order to challenge a binding judgment of the Supreme Court. Vijayalakshmi Jha v. Union of India, 2023 LiveLaw (SC) 179

Constitution of India, 1950; Article 32 - It is trite law that this Court in the exercise of its jurisdiction under Article 32 of the Constitution cannot issue a mandamus to Parliament to legislate nor does it legislate. The constitutional power to legislate is entrusted to Parliament or, as the case may, the State Legislatures under Articles 245 and 246 of the Constitution - Supreme Court refuses to entertain pleas to increase age of marriage for women as 21 years. Ashwini Kumar Upadhyay v. Union of India, 2023 LiveLaw (SC) 143

Constitution of India, 1950; Article 32 - Plea of Supreme Court Bar Association for conversion of plot allotted to the Court as lawyers' chambers cannot be entertained on the judicial side - However, matter left open to be considered on the administrative side. Supreme Court Bar Association v. Ministry of Urban Development, 2023 LiveLaw (SC) 236

Constitution of India, 1950; Article 32 - SC refuses to entertain petition seeking a framework which would allow citizens to petition directly to the Parliament - The reliefs which have been sought fall exclusively within the domain of Parliament. Such directions cannot be issued by this Court in the exercise of its jurisdiction under Article 32 of the Constitution. Karan Garg v. Union of India, 2023 LiveLaw (SC) 235

Constitution of India, 1950; Article 32 - while exercising power of judicial review cannot issue a writ of certiorari quashing the recommendation, or mandamus calling upon the Collegium of the Supreme Court to reconsider its decision - it would amount to evaluating and substituting the decision of the Collegium, with individual or personal opinion on the suitability and merits of the person. [Para 10] Anna Mathews v. Supreme Court of India, 2023 LiveLaw (SC) 93 : AIR 2023 SC 886 : (2023) 1 SCR 463

Constitution of India, 1950; Article 32, 226 - Prevention of Money-laundering Act, 2002; Section 3 - The issue of territorial jurisdiction cannot be decided in a writ petition, especially when there is a serious factual dispute about the place/places of commission of the offence - This question should be raised by the petitioner before the Special Court, since an answer to the same would depend upon evidence as to the places where any one or more of the processes or activities mentioned in Section 3 were carried out. (Para 46) Rana Ayyub v. Directorate of Enforcement, 2023 LiveLaw (SC) 86 : AIR 2023 SC 875

Article 51A – Fundamental Duties

Constitution of India, 1950; Article 51A - casts an obligation on every citizen, and more so on every judge, to promote harmony, spirit of common brotherhood among all transcending religious, linguistic, regional or sectional diversities. [Para 12] Anna Mathews v. Supreme Court of India, 2023 LiveLaw (SC) 93 : AIR 2023 SC 886 : (2023) 1 SCR 463

Article 77 - Conduct of business of the Government of India

Constitution of India, 1950; Article 77 - A notification which is not in compliance with clause (1) of Article 77 is not invalid, unconstitutional or non-est for that reason alone. Rather, the irrebuttable presumption that the notification was issued by the President of India (acting for the Union Government) is no longer available to the Union Government. The notification continues to be valid and it is open to the Union Government to prove that the order was indeed issued by the appropriate authority. (Para 101) Orissa Administrative Tribunal Bar Association v. Union of India, 2023 LiveLaw (SC) 216

Constitution of India, 1950; Article 77 - the notification dated 2 August 2019 was not issued in the name of the President. However, this does not render the notification invalid. The effect of not complying with Article 77 is that the Union Government cannot claim the benefit of the irrebuttable presumption that the notification dated 2 August 2019 was issued by the President. Hence, the appellants’ argument that the notification dated 2 August 2019 is invalid and unconstitutional is specious. (Para 102) Orissa Administrative Tribunal Bar Association v. Union of India, 2023 LiveLaw (SC) 216

Article 136 - Special leave to appeal by the Supreme Court

Constitution of India, 1950; Article 136 - Concurrent finding of fact does not call for interference in an appeal under Article 136 of the Constitution of India in the absence of any valid ground for interference. (Para 3) Baini Prasad v. Durga Devi, 2023 LiveLaw (SC) 78 : AIR 2023 SC 894

Constitution of India, 1950; Article 136 - It is true that concurrent findings of facts of the Courts below, are usually, not to be interfered with. However, it is only in the presence of exceptional circumstances, this Court exercises its wide powers where there is travesty of justice and when absurd and erroneous conclusions are drawn by the Courts below. We are of the opinion that this is one such case fit for exercising the powers entrusted to us as a duty under Article 136 of the Constitution. (Para 17) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227

Constitution of India, 1950; Article 136 - Power of the Supreme Court - In the absence of very special circumstances or in the presence of gross errors of law committed by the High Court, the Supreme Court does not interfere with the concurrent findings of fact of the courts below. The limitations under Article 136 are self-imposed limitations where in the ordinary course appreciation of evidence is not to be done in the absence of manifest error or the judgment, subject matter of the special leave, being ex facie perverse. (Para 17.10) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225

Constitution of India, 1950; Article 136 - Scope of interference in respect of cases where concurrent findings are recorded by the Lower Courts – If doubt lingers with respect to the probability or conclusiveness of any circumstance relied on by the prosecution, forming a link in the chain of circumstances pointing to the guilt of convict, despite the existence of concurrent findings, the evidence has to be scrutinized by the Supreme Court so as to ensure that the totality of the evidence and circumstances relied on, did constitute a complete chain and it points to the guilt of the convict and it did not brook any hypothesis other than the guilt of the convict. (Para 13) Shankar v. State of Maharashtra, 2023 LiveLaw (SC) 212

Constitution of India, 1950; Article 136 - Though the Scope of Article 136 of Constitution of India is very wide, the power conferred thereunder being a very special and extraordinary power, it has to be exercised in rare and exceptional cases. (Para 15) Imtiyaz Ahmad Malla v. State of Jammu & Kashmir, 2023 LiveLaw (SC) 150 : AIR 2023 SC 1308

Article 142 - Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.

Constitution of India, 1950; Article 142 - Code of Criminal Procedure, 1973; Section 482 - In cases of offences relating to matrimonial disputes, if the Court is satisfied that the parties have genuinely settled the disputes amicably, then for the purpose of securing ends of justice, criminal proceedings inter-se parties can be quashed. Rangappa Javoor v. State of Karnataka, 2023 LiveLaw (SC) 74

Constitution of India, 1950; Article 142 - Insolvency of Reliance Home Finance Ltd (RHFL) - the Supreme Court allowed the Resolution Plan (RP) proposed by Authum Investments and Infrastructure Ltd. (AIIL) to cover the debenture holders of RHFL - the plan will not cover dissenting debenture holders - the dissenting debenture holders should be provided an option to accept the terms of the resolution plan who proposed such acquisition or they can pursue other legal remedies to recover their dues. Authum Investment and Infrastructure Ltd. v. R.K. Mohatta Family Trust, 2023 LiveLaw (SC) 173

Constitution of India, 1950; Article 142 - Under Article 142 of the Constitution of India, this Court cannot issue directions in violation of the statutory provisions; and sympathy or sentiment, by itself, cannot be a ground for passing an order beyond and contrary to the legal rights. (Para 23) State of Orissa v. Orissa Khadi and Village Industries Board Karmachari Sangh, 2023 LiveLaw (SC) 214

Article 162 - Extent of executive power of State

Constitution of India, 1950; Article 162, 44 and Entry 5 of the Concurrent List of the Seventh Schedule - Writ Petition Challenging constitution of the Committee on the Uniform Civil Code set up by the State of Uttarakhand - Dismissed - Article 162 of the Constitution indicates that the executive power of a State extends to matters with respect to which the Legislature of the State has power to make laws -In view of the provisions of Entry 5 of the Concurrent List of the Seventh Schedule, the constitution of a Committee per se cannot be challenged as ultra vires. Anoop Baranwal v. Union of India, 2023 LiveLaw (SC) 22

Article 167 - Duties of Chief Minister as respects the furnishing of information to Governor, etc.

Constitution of India, 1950; Article 167 - The Governor has a right to seek information from the Chief Minister in terms of Article 167(b) on matters relating to the administration of the affairs of the State and proposals for legislation. Once such information is sought, the Chief Minister is duty bound to furnish it - Not furnishing the information which was sought by the Governor would be plainly in dereliction of the constitutional duty which is imposed on the Chief Minister in terms of Article 167(b). (Para 24) State of Punjab v. Principal Secretary to the Governor of Punjab, 2023 LiveLaw (SC) 188

Article 170 - Composition of the Legislative Assemblies.

Constitution of India, 1950; Article 170 - Article 170 deals with only the State Legislature. It has no application to the Legislatures of Union Territories. The reason is that the Legislative Assemblies of the concerned Union Territories will be governed by the law made by the Parliament in accordance with Article 239A and not by the provisions of Chapter III of Part VI. (Para 23) Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951

Article 174 - Sessions of the State Legislature, prorogation and dissolution

Constitution of India, 1950; Article 174 - There can be no manner of doubt that the authority which is entrusted to the Governor to summon the House or each House of the Legislature of the State is to be exercised on the aid and advice of the Council of Ministers. This is not a constitutional arena in which the Governor is entitled to exercise his own discretion. (Para 22) State of Punjab v. Principal Secretary to the Governor of Punjab, 2023 LiveLaw (SC) 188

Article 217 - Appointment and conditions of the office of a Judge of a High Court

Constitution of India, 1950; Article 217 - Appointment and conditions of the office of a Judge of a High Court - Method of recommendation envisages that Collegium of the High Court consisting Chief Justice and two senior most judges recommends names; Government provides inputs; IB report is obtained; Supreme Court Collegium of three senior most judges takes a call. Ashok Pandey v. Union of India, 2023 LiveLaw (SC) 5

Constitution of India, 1950; Article 217(2) - observing that the consultative process is to limit the judicial review, restricting it to the specified area, that is, eligibility, and not suitability - judicial review lies when there is lack of eligibility or ‘lack of effective consultation’. Judicial review does not lie on ‘content’ of consultation. [Para 4] Anna Mathews v. Supreme Court of India, 2023 LiveLaw (SC) 93 : AIR 2023 SC 886 : (2023) 1 SCR 463

Constitution of India, 1950; Article 217(2) - prescribes the constitutional requirement of consultation - prescribes the procedure to be followed, which procedure is designed to test the fitness of a person so to be appointed; her character, her integrity, her competence, her knowledge and the like. [Para 3] Anna Mathews v. Supreme Court of India, 2023 LiveLaw (SC) 93 : AIR 2023 SC 886 : (2023) 1 SCR 463

Constitution of India, 1950; Article 217(2) - the Supreme Court refused to accept the interpretation that a person who may have been enrolled with a State Bar Council and subsequently shifted practice in the Supreme Court is ineligible to be appointed as High Court judges - because at the end of the day every lawyer is enrolled with the Bar Council of a particular State. Ashok Pandey v. Union of India, 2023 LiveLaw (SC) 5

Constitution of India, 1950; Article 217(2)(a) - Supreme Court rejects the petition filed by nine judicial officers from Andhra Pradesh for consideration for elevation as HC judges- Court holds that their service as ad-hoc judges cannot be reckoned for the purposes of Article 217(2)(a). (Para 8) C. Yamini v. High Court of Andhra Pradesh, 2023 LiveLaw (SC) 130 : AIR 2023 SC 1214

Article 222 - Transfer of a Judge from one High Court to another

Constitution of India, 1950; Article 222 - Supreme Court critices the Centre for delay in notifying transfer of High Court judges as per collegium recommendations- Delay in the same not only affects the administration of justice but creates an impression as if there are third party sources interfering on behalf of these Judges with the Government. Advocates Association Bengaluru v. Barun Mitra, 2023 LiveLaw (SC) 21

Constitution of India, 1950; Article 222 - Transferred judges do not carry label of 'bar judge' or 'service judge' - If a Judge is transferred from a Court, it is not as if a replacement can be provided from the Bar or the Service Judges of that Court as the total strength of the Court is specified. When the Judge is transferred to another Court, he is a transferred Judge neither categorized from the Bar nor from the Service. In the Court where he is transferred, he occupies a physical position in the strength of that Court and unless correspondingly Judges are transferred from that Court, there will be lesser person appointed in that Court from the Bar/Services as the total strength of the Court to which transfer is made cannot be exceeded. The transferred Judge does not carry the label of a Bar or a Service Judge and it is up to the Chief Justice where to he is transferred to reduce the inflow in the Court of transfer, i.e., from the Bar or Service. Similarly, if from the Court where to Judges are transferred, in turn Judges from either category are transferred to other Courts they in turn will carry the label of a transferred Judge and not from the Bar or the Service. This aspect has been clarified as there 5 appears to be some doubts expressed about how the system of transfer will operate. Advocates Association Bengaluru v. Barun Mitra, 2023 LiveLaw (SC) 21

Article 226 - Power of High Courts to issue certain writs

Constitution of India, 1950; Article 226 - Dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper - Mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition “not maintainable" - Where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high court instead of dismissing the writ petition on the ground of an alternative remedy being available. (Para 4-8) Godrej Sara Lee Ltd. v. Excise and Taxation Officer Cum Assessing Authority, 2023 LiveLaw (SC) 70 : AIR 2023 SC 781

Constitution of India, 1950; Article 226 - It was premature for the High Court to opine anything on whether there was any evasion of the tax or not. The same was to be considered in an appropriate proceeding for which the notice under section 130 of the CGST Act was issued. Therefore, High Court has materially erred in entertaining the writ petition against the show cause notice and quashing and setting aside the same. State of Punjab v. Shiv Enterprises, 2023 LiveLaw (SC) 56

Constitution of India, 1950; Article 226 - Writ jurisdiction can be exercised when the State, even in its contractual dealings, fails to exercise a degree of fairness or practices any discrimination. (Para 19) Gas Authority of India Ltd. v. Indian Petrochemicals Corporation Ltd., 2023 LiveLaw (SC) 88 : AIR 2023 SC 833

Constitution of India, 1950; Article 226 - Writ petition under Article 226 of the Constitution of India for recovery of money under the bills/invoices should not have been entertained by the High Court, more particularly, when in fact the original writ petitioner(s) availed the remedy before Civil Court and filed Civil Suit, which came to be dismissed in default. Director of Agriculture v. M.V. Ramachandran, 2023 LiveLaw (SC) 220

Constitution of India, 1950; Article 226 - Writ petitions challenging orders of Armed Forces Tribunal are maintainable - To deny the High Court to correct any error which the Armed Forces Tribunal may fall into, even in exercising jurisdiction under Article 226, would be against the constitutional scheme. Union of India v. Parashotam Dass, 2023 LiveLaw (SC) 224

Constitution of India, 1950; Article 226(2) - Concept of forum conveniens - Even if a small part of the cause of action arises within the territorial jurisdiction of a high court, the same by itself could not have been a determinative factor compelling the High Court to keep the writ petitions alive against the appellant to decide the matter qua the impugned notification, on merit. (Para 18) State of Goa v. Summit Online Trade Solutions (P) Ltd, 2023 LiveLaw (SC) 184

Constitution of India, 1950; Article 226(2) - Guiding tests to determine whether part of cause of action has arisen within the territorial jurisdiction of a High Court- In the context of a writ petition, what would constitute such ‘cause of action’ is the material facts which are imperative for the writ petitioner to plead and prove to obtain relief as claimed- Determination of the question as to whether the facts pleaded constitute a part of the cause of action, sufficient to attract clause (2) of Article 226 of the Constitution, would necessarily involve an exercise by the high court to ascertain that the facts, as pleaded, constitute a material, essential or integral part of the cause of action - In so determining, it is the substance of the matter that is relevant- It, therefore, follows that the party invoking the writ jurisdiction has to disclose that the integral facts pleaded in support of the cause of action do constitute a cause empowering the high court to decide the dispute and that, at least, a part of the cause of action to move the high court arose within its jurisdiction- Such pleaded facts must have a nexus with the subject matter of challenge based on which the prayer can be granted- Those facts which are not relevant or germane for grant of the prayer would not give rise to a cause of action conferring jurisdiction on the court. (Para 15) State of Goa v. Summit Online Trade Solutions (P) Ltd, 2023 LiveLaw (SC) 184

Constitution of India, 1950; Article 226(2) - Jurisdiction of a High Court to entertain a challenge to an order passed by a Tribunal situated outside its jurisdiction - Supreme Court refers to larger bench. Union of India v. Sanjiv Chaturvedi, 2023 LiveLaw (SC) 162

Constitution of India, 1950; Article 226(2) - Tax has been levied by the Government of Goa in respect of a business that the petitioning company is carrying on within the territory of Goa- Such tax is payable by the petitioning company not in respect of carrying on of any business in the territory of Sikkim- Merely because the petitioning company has its office in Gangtok, Sikkim, the same by itself does not form an integral part of the cause of action authorizing the petitioning company to move the High Court. (Para 16) State of Goa v. Summit Online Trade Solutions (P) Ltd, 2023 LiveLaw (SC) 184

Article 227 - Power of superintendence over all courts by the High Court

Constitution of India, 1950; Article 226, 227 - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - In view of alternative statutory remedy available by way of appeal before the DRAT, the High Court ought not to have entertained the writ petition under Article 226/227 allowing the borrower to circumvent the provision of appeal before the DRAT under the provisions of the SARFAESI Act. (Para 6) K. Sreedhar v. Raus Constructions Pvt. Ltd., 2022 LiveLaw (SC) 13 : AIR 2023 SC 306

Article 239A - Creation of local Legislatures or Council of Ministers or both for certain Union territories

Constitution of India, 1950; Article 3, 4, 239A - Parliament by making a law can convert an existing State into one or more Union territories. Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951

Constitution of India, 1950; Article 3, 4, 239A - Parliament is empowered by law to create a body of legislature for the Union territories of Puducherry and J&K.- Even if the law made by Parliament creating a body of legislature for Union territories of Puducherry and J&K has the effect of amending certain parts of the Constitution, it shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951

Article 243R - Composition of Municipalities

Constitution of India, 1950; Article 243R - The Constitution has imposed a restriction in terms of which nominated members who are brought in on account of their special knowledge or experience in Municipal administration do not have the right to vote- The same restriction finds statutory recognition in Section 3(3)(b)(i) of the Delhi Municipal Corporation Act. The above provisions indicate that persons who are nominated under the sub-clause shall not have the right to vote in the meetings of the Corporation. The Constitution and the Act place value on their experience but the right to vote is not granted to them at meetings of the Corporation. (Para 11) Shelly Oberoi v. Office of Lieutenant Governor of Delhi, 2023 LiveLaw (SC) 119

Article 300A - Suits and proceedings

Constitution of India, 1950; Article 300A - Assuming holding notes is a right under the Constitution, the rights vested in the notes was not taken away - only restrictions were with respect to exchange of old notes with the new notes. [Para 277 - 278] Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1

Constitution of India, 1950; Article 300A - To continue with the temporary acquisition for number of years would be arbitrary and can be said to be 9 infringing the right to use the property guaranteed under Article 300A of the Constitution of India. Even to continue with the temporary acquisition for a longer period can be said to be unreasonable, infringing the rights of the landowners to deal with and/or use the land. (Para 7) Manubhai Sendhabhai Bharwad v. Oil and Natural Gas Corporation Ltd; 2023 LiveLaw (SC) 55 : AIR 2023 SC 992

Constitution of India, 1950; Article 300A - Sick Industrial Companies Act, 1985 - Rehabilitation scheme under Section 18 of the SICA, 1985 shall bind all the creditors including the unsecured creditors - Dues cannot be recovered post revival of sick company - Compelling unsecured creditors to accept the scaled down value of their dues would not be violative of Article 300A of the Constitution of India. It was observed that the rehabilitation scheme is prepared under Section 18 of SICA, which has a binding effect on all the creditors. Modi Rubber Ltd. v. Continental Carbon India Ltd; 2023 LiveLaw (SC) 208

Article 311 - Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State

Constitution of India, 1950 - Article 311 - Departmental enquiry not necessary to terminate the services of a judicial officer on the ground of suppression of criminal case at the time of making application- It is not a case of termination of services for misconduct- t was the case of cancellation of the appointment on not disclosing the true and correct facts in the application form. Therefore, as rightly observed by the High Court, there was no question of holding any departmental enquiry under Article 311 of the Constitution of India. (Para 7) Yogeeta Chandra v. State of Uttar Pradesh, 2023 LiveLaw (SC) 142

Article 323A – Administrative tribunals

Constitution of India, 1950 - Article 323A does not preclude the Union Government from abolishing SATs. (Para 32) Orissa Administrative Tribunal Bar Association v. Union of India, 2023 LiveLaw (SC) 216

Article 324 - Superintendence, direction and control of elections to be vested in an Election Commission

Constitution of India, 1950; Article 324 (2) - Appointment to the posts of Chief Election Commissioner and the Election Commissioners shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India. This norm will continue to hold good till a law is made by the Parliament - As regards the relief relating to putting in place a permanent Secretariat for the Election Commission of India and charging its expenditure to the Consolidated Fund of India is concerned, the Court makes a fervent appeal that the Union of India/Parliament may consider bringing in the necessary changes so that the Election Commission of India becomes truly independent. Anoop Baranwal v. Union of India, 2023 LiveLaw (SC) 155

Entry 35 of List III of Seventh Schedule

Constitution of India, 1950; Entry 35 of List III of Seventh Schedule - The power on the Parliament as also the State Legislatures to make laws relating to mechanically propelled vehicles of all kinds and also to lay down the principles on which taxes on such vehicles are to be levied -The central enactment i.e. the law made by the Parliament has not laid down any principles for levy of taxes. The State Legislatures has the power to levy taxes not only under Entries 56 and 57 of List II but also to lay down the principles under Entry 35 of List III. (Para 46) State of Himachal Pradesh v. Goel Bus Service Kullu, 2023 LiveLaw (SC) 27 : AIR 2023 SC 390

Entry 36 of List I of the Seventh Schedule

Constitution of India, 1950; Entry 36 of List I of the Seventh Schedule - deals with currency, coinage and legal tender; foreign exchange which is a field of legislation - Central Government has the power to initiate the process of demonetisation on the strength of Entry 36 - apart from financial health of the country Central Government is also concerned about the sovereignty, integrity and security of the country - if it thinks fit to initiate a proposal for demonetisation to eradicate black money, fake currency, terror funding etc, it should be able to do so. [Para 15.7, 15.8 and 15.9] [Dissenting Opinion] Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1

Constitution of India, 1950; Entry 36 of List I of the Seventh Schedule - power of Central Government to demonetise banknotes - Central Government has the power to demonetise ‘all’ series of bank notes of ‘all’ denominations, even without the recommendation of Central Board; but not in exercise of Section 26(2) - such an extensive power is to be exercised only through a legislative process [legislation/Ordinance (if urgent)] and not by way of an executive act - the Parliament should be involved in the process of implementation of such a scheme of demonetisation. [Para 15.13, 15.4 and 15.22] [Dissenting Opinion] Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1