Supreme Court Weekly Round-Up [Feb 17 - 23]

• 'Absolute Exclusion Of Women From Command Appointments In Army Illegal': SC Dismisses Centre's Appeals Against Delhi HC Verdict [The Secretary, Ministry of Defence v. Babita Puniya & Ors.]

In a significant judgment on gender equality, the Supreme Court directed that Permanent Commission should be granted to women in the army regardless of their service, in all the ten streams where the Union Government has already taken a decision to grant Short Service Commission to women. The Court also held that absolute exclusion of women from command assignments is against Article 14 of the Constitution and unjustified. Therefore, the policy that women will be given only "staff appointments" was held to be unenforceable by the Court.

● Community Kitchens: SC Imposes Additional Cost On States For Failure To File Reply

The Supreme Court imposed additional costs amounting to Rs. 5,00,000/- on Maharashtra, Delhi, Manipur, and Orissa & Goa for failure to file their replies in a Petition seeking setting up of community kitchens PAN India, substantiating the total cost payable by each state to Rs. 10 Lacs. Last week, the Bench comprising Justices NV Ramanna, Ajay Rastogi & V. Ramsubramian had imposed a cost of Rs. 5 lacs on several states for non-compliance of an earlier order dated 2^nd September 2019, thereby directing the states to file their replies.

● Notion That Women Are 'Weaker Sex' Constitutionally Flawed: SC Calls For Change In Mindset [The Secretary, Ministry of Defence v. Babita Puniya & Ors.]

The notions that women are the "weaker" sex and may not undertake tasks that are "too arduous‟ for them are constitutionally flawed, observed the Supreme Court, in its judgment which held that the absolute exclusion of women from Command Appointments In Army is Illegal. The bench comprising Justice Dhananjaya Y. Chandrachud and Justice Ajay Rastogi observed that to cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army – men and women – who serve as equal citizens in a common mission.

● Parental Responsibility Does Not End With Breakdown Of Marriage: SC [Soumitra Kumar Nahar v. Parul Nahar]

The Supreme Court has observed that the parental responsibility of the couple does not end even if there is a breakdown of the marriage. In a custody battle, no matter which parent wins but the child is always the loser and it is the children who pay the heaviest price as they are shattered when the Court by its judicial process tells them to go with the parent whom he or she deems, remarked the bench of Justices AM Khanwilkar and Ajay Rastogi while considering a civil appeal in a matrimonial case.

● Right To Pension Cannot Be Taken Away By A Mere Executive Fiat Or Administrative Instruction [Dr. Hira Lal v. State of Bihar & Ors.]

The Supreme Court has observed that the right to pension is covered under a right to property protected under Article 300A of the Constitution of India and it cannot be taken away by a mere executive fiat or administrative instruction. The issue considered by the bench comprising Justices Uday Umesh Lalit and Indu Malhotra in this appeal was whether the State of Bihar was justified in withholding 10% pension and full gratuity of its employee under Circulars, and Government Resolution issued by it, on the ground of pending criminal proceedings?

● HC Collegium Recommendations Must Be Continuing Process Without Waiting For Results Of Earlier Lists [M/s Plr Projects Pvt. Ltd v. Mahanadi Coalfields Ltd & Ors.]

The Supreme Court has observed that the High Courts should continuously recommend names for judicial appointments in anticipation of vacancies, regardless of the pendency of the earlier recommendations. A bench comprising Justices S K Kaul and K M Joseph said that there should be a "continuing process" of recommending names without waiting for the results of earlier recommendations.

● Judicial Officers Cannot Seek Direct Recruitment To Post Of District Judges Against Quota For Advocates [Dheeraj Mor v. Hon'ble High Court of Delhi]

In a significant judgment, the Supreme Court has held that civil judges are not eligible to seek direct recruitment to post of District Judges in bar quota. Eligibility under Article 233(2) of the Constitution requires 7 years of continuous practice. "Only practising candidates can avail the quota. It is exclusively for them", Justice Arun Mishra, dictating the order, said. "Article 233(2) nowhere provides eligibility of in-­service candidates for consideration as a District Judge concerning a post requiring 7 years' practise as an advocate or a pleader. The requirement of 7 years' experience for advocate or pleader is qualified with a rider that he should not be in the service of the Union or the State", the Court said in the judgment.

● [Meghalaya] District Council Court Can Try Criminal Cases In Which Both Victim & Accused Belong To Scheduled Tribe [The State of Meghalaya v. Melvin Sholangpiaw]

The Supreme Court has held that the District Council Courts in Meghalaya has jurisdiction to entertain criminal cases in which both the victim and the accused belong to Scheduled Tribes. The bench comprising Justice Mohan M Shantanagoudar and R Subhash Reddy was considering the appeal filed by the State against the judgment of High Court of Meghalaya transferring a criminal case against an accused from the Court of Sessions Judge, Nongstoin, West Khasi Hills District to the Court of Judge, Khasi Hills Autonomous District Council, Shillong.

● Electricity Supply Cannot Be Disconnected For Recovery Of Additional Demand Raised After Expiry Of Two Years Limitation Period [Assistant Engineer (D1), Ajmer Vidyut Vitran Nigam Ltd. & Anr. v. Rahmatullah Khan]

The Supreme Court has held that the licensee company cannot take recourse to the coercive measure of disconnection of electricity supply, for recovery of the additional demand raised after the expiry of two years limitation period. The bench of Justices Uday Umesh Lalit and Indu Malhotra observed that the Section 56(2) of the Electricity Act does not preclude the licensee company from raising an additional or supplementary demand after the expiry of the limitation period under Section 56(2) in the case of a mistake or bona fide error.

● Practicing Advocates' Experience Gained At Bar Injects Judicial Branch With Fresh Perspectives [Dheeraj Mor v. Hon'ble High Court of Delhi]

In the judgment holding that in-service judicial officers are not eligible to apply for direct recruitment to the post of District Judges, the Supreme Court has observed that the experience of a successful lawyer at the bar cannot be considered as less important than that of a judicial officer. Quoting from the SC decision in P. Ramakrishnan Raju v. Union of India and Ors., (2014) the Court said that "experience and knowledge gained by a successful lawyer at the Bar can never be considered to be less important from any point of view vis­à­vis the experience gained by a judicial officer".

● Magistrate Can Review Order Passed Under Sec 125 CrPC; Bar Under Sec 362 CrPC Not Applicable [Ranjeev Kapoor v. Chandra Kapoor & Ors.]

The Supreme Court of India has held that a Magistrate who passes an order on settlement between parties under Section 125 of the Code of Criminal Procedure (CrPC) has the power to recall or set aside the Order if terms of the same are violated, and Section 362 of CrPC does not function as a bar on the same. The Bench comprising of Justices Ashok Bhushan and R. Subhash Reddy took into consideration the legislative scheme behind the promulgation of Section 362 of the CrPC by breaking down the Section.

● SC Grants Relief To Couple Who Married Against Parental Wishes By Staying Habeas Case Filed By Wife's Father

In an interim relief to a couple who had married out of love against parental wishes, the Supreme Court on Tuesday stayed the proceedings in a habeas corpus plea filed by the wife's father in Rajasthan High Court. The couple, originally belonging to Rajasthan, settled in Mumbai after marriage. The father of the wife filed a habeas corpus petition in the Rajasthan High Court alleging that his daughter was abducted by the man and was under his illegal detention.

● SC Agrees To Hear Victim's Plea Against Allahabad HC Order Granting Bail to Chinmayanand On Monday

The Supreme Court agreed to list urgently the challenge to Allahabad High Court's grant of bail to former Union Minister and BJP leader Chinmayanand in a case of sexual abuse of a law student. Senior Counsel Colin Gonsalves mentioned the matter before Chief Justice S. A. Bobde, citing the apprehension of threat to the victim's life. The CJ agreed to hear the plea on Monday. In the order granting bail on February 3, the Allahabad High Court has made certain unusual observations that have the potential to pre-judge the criminal trial in the sexual exploitation case against him.

● PNB Scam - Powers Under Sec 339 Companies Act Can Be Invoked Only Against Officers Of Company In Which Mismanagement Is Alleged [Usha Ananthasubramanian v. Union of India]

In the PNB-Nirav Modi scam, the Supreme Court has granted relief to Usha Ananthasubramanian, former MD & CEO of Punjab National Bank, by setting aside the order passed by NCLT by which her assets were frozen. In the case regarding mismanagement of Gitanjali Gems Ltd run by Nirav Modi, the National Company Law Tribunal had passed an order restraining several individuals, including Usha Ananthasubramanian, from disposing of their assets and from withdrawing more than One Lakh rupees per month towards personal expenses. This order passed exercising powers under Section 241 read with 337 and 339 of the Companies Act 2013 was approved by NCLAT as well.

● Marriage Contracted During Pendency Of Appeal From A Divorce Decree Filed After Expiry Of Limitation Period Is Not Void [Krishnaveni Rai v. Pankaj Rain & Anr.]

The Supreme Court has observed that a marriage contracted during the pendency of an appeal from a divorce decree is not ab initio void especially when such an appeal is filed after expiry of the period of limitation. In this case, a maintenance petition filed by a wife was dismissed on the grounds that the marriage was a nullity because the marriage had taken place while an appeal filed by her against a decree of dissolution of marriage with her first husband was still pending. The issue considered by the Apex Court was whether the second marriage performed during the pendency of an appeal from a decree of divorce a nullity, even though there was no stay of operation of the decree.

● SC Upholds Introduction Of NEET To AYUSH Under Graduate Courses [Union of India v. Federation of Self-Financed Ayurvedic Colleges Punjab & Ors.]

The Supreme Court has upheld All-India National Eligibility cum Entrance Test ('NEET') for admission to AYUSH Under Graduate courses like BAMS, BUMS, BSMS and BHMS. The bench comprising Justice L. Nageswara Rao and Justice Deepak Gupta also observed that the minimum standards cannot be lowered even for AYUSH courses. The bench also referred to the judgment in Veterinary Council of India v. Indian Council of Agricultural Research in which it was held that the Veterinary Council of India is authorized to frame regulations prescribing the standards of veterinary education and such power includes the power to make Regulations relating to grant of admissions and veterinary qualifications.

● [Electricity]Fixing Of Commercial Tariff For Self-Financed Educational Institutions Legally Valid [KSEB & Anr. v. Principal Sir Syed Institute For Technical Studies & Anr.]

The Supreme Court held that clubbing of Self-financed educational institutions (SFEIs) with commercial service providers for the purposes of fixing electricity tariffs higher than Government-run & aided educational institutions was legally justifiable in terms of the Electricity Act, 2003 ("2003 Act"). The central issue in the instant case was whether under the 2003 Act, the differentiation of SFEIs from the other set of educational institutions for the purpose of fixing of the tariff was arbitrary discrimination and antithetical to principles of natural justice. Rendered by a Bench of Justices Deepak Gupta & Aniruddha Bose, the Judgment held that a tariff fixing body was not required to proceed solely on the basis of the "nature of service" rendered by the Institution while fixing tariffs.

● Rebuttal Of Presumption U/s 139 NI Act Can Only Be Done After Adducing Evidence [Shiv Kumar Alias Jawahar Saraf v. Ramavatar Agarwal]

The Supreme Court has observed that the rebuttal of presumption available under Section 139 of the Negotiable Instruments Act can only be done after adducing evidence. The bench of Justice Ashok Bhushan and Justice KM Joseph agreed with the High Court view that rebuttal of presumption cannot be looked into at the stage of the Court taking cognizance of the offense. Expressing its 'full agreement' with the view adopted by the High Court, the bench added that the rebuttal can be made with reference to the evidence of the prosecution as well as of defence.