1. Parliament should be concerned with general principles and not technical issues

“For considering the question as to whether the RBI Act provides guidance to the delegatee [Central Government] or not, the entire scheme, object and the purpose of the Act has to be taken into consideration. The guidance could be sought from the express provision empowering delegation or the other provisions of the statute, the preamble, the scheme or even the very subject-matter of the statute. If the guidance could be found in whatever part of the Act, the delegation has to be held to be valid. A great amount of latitude has to be given in such matters. It has been consistently held that Parliament and the State Legislatures are not bodies of expert or specialists. They are skilled in the art of discovering the aspirations, the expectations, and the needs of the people whom they represent. It has been held that they function best when they concern themselves with general principles, broad objectives and fundamental issues instead of technical and situational intricacies which are better left to better equipped full-time expert executive bodies and specialist public servants…The RBI is an expert body entrusted with various functions with regard to monetary and economic policies. Perusal of the scheme of the RBI Act would reveal that it has a primary role in the matters pertaining to the management and regulation of currency. We, therefore, find that there is sufficient guidance to the delegatee when it exercises its powers under the RBI Act, from the subject matter of the statute, and the other provisions of the Act…One another aspect that needs to be taken into consideration is the nature of the body to which the delegation is to be made. In the present case, the delegation is made to the Central Government and not to any ordinary body. [It is] the highest executive body of the country. We have a Parliamentary system in which the Government is responsible to the Parliament. In case the Executive does not act reasonably while exercising its power of delegated legislation, it is responsible to Parliament who are elected representatives of the citizens for whom there exists a democratic method of bringing to book the elected representatives who act unreasonably in such matters” [Justice B.R. Gavai (majority judgement on behalf of himself and Justices S. Abdul Nazeer, A.S. Bopanna, and V. Ramasubramanian) in Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1]

2. Not proper for courts to enter into area of economic, monetary and fiscal policy

“Insofar as the economic, monetary and fiscal policies are concerned, the same are best left to the experts possessing requisite knowledge. The RBI as well as the Central Government are bodies having contingent of experts in the field. It will, therefore, not be proper for the Court to enter into an area which should be best left to the experts…It is not the function of this Court or of any other Court to sit in judgment over such matters of economic policy and they must necessarily be left to the Government of the day to decide since in such matters with regard to the prediction of ultimate results, even the experts can seriously err and doubtlessly differ. The Courts can certainly not be expected to decide them without even the aid of experts. Our inquiry has to be limited only to find out as to whether there is an illegality in the decision-making process, i.e. whether the decision makers have understood the law correctly which regulates the decision-making power and as to whether the decision-making process is vitiated by irrationality, i.e. the Wednesbury principles. The test that would have to be applied is that the decision is such that no authority properly conducting itself on the relevant law and acting reasonably could have reached thereat, and as to whether there has been a procedural impropriety.” [Justice B.R. Gavai (majority judgement on behalf of himself and Justices S. Abdul Nazeer, A.S. Bopanna, and V. Ramasubramanian) in Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1]

3. Mere errors in judgement by government not subject to judicial review

“Another submission was that the objective with which the Notification was issued, i.e., to combat fake currency, black money and parallel financing, has utterly failed…However, we do not wish to go into the question as to whether the object with which demonetization was effected is served or not or as to whether it has resulted in huge direct and indirect benefits or not. We do not possess the expertise to go into that question and it is best that it should remain in the domain of the experts. If the action of the government has a basis with the objectives to be achieved, it cannot be declared as palpably arbitrary. To be able to find fault with a law is not to demonstrate its invalidity. The result of the act may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. It has been held that what is best is not always discernible, and the wisdom of any choice may be disputed or condemned. It has been held that mere errors of government are not subject to judicial review. It is only the palpably arbitrary exercises which can be declared void. Therefore, the Court must defer to legislative judgment in matters relating to social and economic policies and must not interfere unless the exercise of executive power appears to be palpably arbitrary. The Court does not have necessary competence and expertise to adjudicate upon such economic issues. It is also not possible for the Court to assess or evaluate what would be the impact of a particular action and it is best left to the wisdom of the experts. In such matters, it will not be possible for the Court to assess or evaluate what would be the impact of the impugned action of demonetization. The Court does not possess the expertise to do so…In any case, mere errors of judgment by the government seen in retrospect are not subject to judicial review. In such matters, legislative and quasi-legislative authorities are entitled to a free play, and unless the action suffers from patent illegality, manifest or palpable arbitrariness, the Court should be slow in interfering with the same.” [Justice B.R. Gavai (majority judgement on behalf of himself and Justices S. Abdul Nazeer, A.S. Bopanna, and V. Ramasubramanian) in Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1]

4. Every noble cause claims its martyr

“While adjudging the illegality of the impugned Notification, we would have to examine on the basis as to whether the objectives for which it was enacted have nexus with the decision taken or not. If the impugned Notification had a nexus with the objectives to be achieved, then, merely because some citizens have suffered through hardships would not be a ground to hold the impugned Notification to be bad in law. Though [in K.M. Sonia Bhatia v. State of Uttar Pradesh, (1981) 2 SCC 585], the Court found that [an] Act caused a serious hardship, it held that the Act is a valuable piece of social legislation. It held that the Act was enacted to implement one of the most important constitutional directives contained in Part IV of the Constitution of India. It further observed that, if in this process, a few individuals suffer severe hardship, that cannot be helped. It further held that individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr…In any case now, the action which was taken by the Central Government by the impugned Notification, has been validated by the 2016 Ordinance and which has fructified in the 2017 Act. The Central Government is answerable to the Parliament and the Parliament, in turn, represents the will of the citizens of the country. The Parliament has therefore put its imprimatur on the executive action. This is apart from the fact that we have not found any flaw in the decision-making process as required under the RBI Act. The decision-making process is also sought to be attacked on the ground that the decision was taken in a hasty manner.” [Justice B.R. Gavai (majority judgement on behalf of himself and Justices S. Abdul Nazeer, A.S. Bopanna, and V. Ramasubramanian) in Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1]

5. No independent application of mind by RBI to demonetisation proposal

“On looking at the records, I find the use of the words and phrases there ‘as desired by the Central Government’, ‘Government has recommended the withdrawal of legal tender of 500 and 1000 notes’, ‘recommendation has been obtained’ etc., are self-explanatory. This demonstrates that there was no independent application of mind by the [Reserve] Bank. Neither was there any time for the bank to apply its mind in such a serious issue. This observation is being made having regard to the fact that the entire exercise of demonetisation of all series of bank notes of Rs 500 and Rs 1000 was carried out in 24 hours…The opinion of the Central Board of the Bank ought to be an independent and frank opinion after a meaningful discussion by the Central Board of the Bank which ought to be given its due weightage having regard to the ramifications it may have on the Indian economy and the citizens of India although it may not be binding on the Central Government.” [Justice B.V. Nagarathna (minority judgement) in Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1]

6. Debate in parliament would have conferred legitimacy to demonetisation

“The Parliament which is the fulcrum in our democratic system of governance, must be taken into confidence. This is because it is the representative of the people of the Country. It is the pivot of any democratic country and in it rest the interests of the citizens of the Country. The Parliament enables its citizens to participate in the decision-making process of the government. A Parliament is often referred to as a ‘nation in miniature’; it is the basis for democracy. A Parliament provides representation to the people of a country and makes their voices heard. Without a Parliament, a democracy cannot thrive; every democratic country needs a Parliament for the smooth conduct of its governance and to give meaning to democracy in the true sense. The Parliament which is at the centre of our democracy cannot be left aloof in a matter of such importance. Its views on the subject of demonetisation are critical and of utmost importance…On a matter as critical as demonetisation, having a bearing on nearly 86% of the total currency in circulation, the same could not have been carried out by way of issuance of an executive notification. A meaningful discussion and debate in the Parliament on the proposed measure, would have lent legitimacy to the exercise…When an Ordinance is issued or a Bill is introduced in the Parliament and enacted as a law, it would mean that it has been done by taking into confidence the Members of Parliament who are the representatives of the people of India, who would meaningfully discuss on the proposal for demonetisation made by the Central Government. In such an event, demonetisation would be by an Act of Parliament and not a measure carried out by the issuance of a gazette notification by the Central Government in exercise of its executive power…When the Central Government proposes to demonetise the currency notes, not only the view of the Central Board of the Bank is relevant and important but also that of the representatives of the people in the Parliament. The Members of the Parliament hold the sovereign powers of ‘We, the People of India’ in trust.” [Justice B.V. Nagarathna (minority judgement) in Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1]

7. A conscious application of mind by Magistrate needed before issuing summons

“When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities…The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The Magistrate may even put questions to complainant and the witnesses when examined to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the accused to stand the trial, summons should be issued. Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times.” [Justice Sanjiv Khanna in Deepak Gaba v. State of Uttar Pradesh, 2023 LiveLaw (SC) 3]

8. PM or CMs have no disciplinary control over individual ministers

“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. Generally, collective responsibility of the Council of Ministers either to the House of the People or to the Assembly should be understood to correlate to the decisions and actions of the Council of Ministers and not to every statement made by every individual Minister…[This is because], (i) that the concept of collective responsibility is essentially a political concept; (ii) that the collective responsibility is that of the Council of Ministers; and (iii) that such collective responsibility is to the House of the People/Legislative Assembly of the State. Generally, such responsibility correlates to (i) the decisions taken; and (ii) the acts of omission and commission done. It is not possible to extend this concept of collective responsibility to any and every statement orally made by a Minister outside the House of the People/Legislative Assembly…The suggestion that the Prime Minister, in the case of a Minister of the Union of India and the Chief Minister, in the case of a Minister of the State should be allowed to take appropriate action, against the erring Minister, is just fanciful. The Prime Minister or the Chief Minister does not have disciplinary control over the members of the Council of Ministers. It is true that in practice, a strong Prime Minister or Chief Minister will be able to drop any Minister out of the Cabinet. But in a country like ours where there is a multi­party system and where coalition Governments are often formed, it is not possible at all times for a Prime Minister/Chief Minister to take the whip, whenever a statement is made by someone in the Council of Ministers. Governments which survive on a wafer­thin majority (of which we have seen quite a bit), sometimes have individual Ministers who are strong enough to decide the very survival of such Governments. This problem is not unique to our country…We are not suggesting for a moment that any public official including a Minister can make a statement which is irresponsible or in bad taste or bordering on hate speech and get away with it. We are only on the question of collective responsibility and the vicarious liability of the Government. As all the literature on the issue shows, collective responsibility is that of the Council of Ministers. Each individual Minister is responsible for the decisions taken collectively by the Council of Ministers. In other words, the flow of stream in collective responsibility is from the Council of Ministers to the individual Ministers. The flow is not on the reverse, namely, from the individual Ministers to the Council of Ministers.” [Justice V. Ramasubramanian (majority judgement on behalf of himself and Justices S. Abdul Nazeer, B.R. Gavai, and A.S. Bopanna) in Kaushal Kishor v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4]

9. No penalty for unconstitutional opinions unless it leads to damages

“A statement may be made by a Minister either inside or outside the House of People/Legislative Assembly of the State. A statement may also be made by a Minister in writing or by words spoken. A statement may be made in private or in public. A statement may also be made by a Minister either touching upon the affairs of the Ministry/ department of which he is in control or touching generally upon the policies of the Government of which he is a part. A Minister may also make a statement, in the form of an opinion on matters about which he or his department is not concerned or over which he has no control. All such statements need not necessarily give rise to an action in tort or in constitutional tort. Take for instance a case where a Minister makes a statement that women are unfit to be employed in a particular avocation. It may reflect his insensitivity to gender equality and also may expose his low constitutional morality. The fact that due to his insensitivity or lack of understanding or low constitutional morality, he speaks a language that has the potential to demean the constitutional rights of women, cannot be a ground for action in constitutional tort. Needless to say that no one can either be taxed or penalised for holding an opinion which is not in conformity with the constitutional values. It is only when his opinion gets translated into action and such action results in injury or harm or loss that an action in tort will lie.” [Justice V. Ramasubramanian (majority judgement on behalf of himself and Justices S. Abdul Nazeer, B.R. Gavai, and A.S. Bopanna) in Kaushal Kishor v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4]

10. Article 19 and 21 rights enforceable even against state and its instrumentalities

“The second question referred to us is as to whether a fundamental right under Article 19 or 21 can be claimed against anyone other than the State or its instrumentalities. Actually, the question is not about “claim” but about “enforceability”.To use the phraseology adopted by the philosophers of Law, the question on hand is as to whether Part III of the Constitution has a “vertical” or “horizontal” effect. There are some Articles in Part ­III where the mandate is directly to the State and there are other Articles where without injuncting the State, certain rights are recognized to be inherent, either in the citizens of the country or in persons...In fact, there are two sets of dichotomies that are apparent in the Articles contained in Part III. One set of dichotomy is between (i) what is directed against the State; and (ii) what is spelt out as inhering in every individual without reference to the State. The other dichotomy is between (i) citizens; and (ii) persons. That takes us to the question as to how the Courts in India have dealt with cases where there were complaints of infringement by non­-State actors, of fundamental rights. To begin with, this Court was weary of extending the enforcement of fundamental rights against private individuals. But this reluctance changed over a period of time. On a case­to­case basis, this Court applied horizontal effect, considering the nature of the right violated and the extent of obligation on the part of the violator. But to enable the courts to have certain basic guidelines in place, for dealing with such cases, this Court developed a tool in Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. Thus, the answer is partly found in the nine-Judge Bench decision in Justice K.S. Puttaswamy itself. We have seen from the line of judicial pronouncements listed above that after A.K. Gopalan vs. State of Madras, AIR 1950 SC 27, lost its hold, this Court has expanded the width of Article 21 in several areas such as health, environment, transportation, education and prisoner’s life etc. The original thinking that these rights can be enforced only against the state, changed over a period of time. The transformation was from ‘state’ to ‘authorities’ to ‘instrumentalities of state’ to ‘agency of the government’ to ‘impregnation with governmental character’ to ‘enjoyment of monopoly status conferred by state’ to ‘deep and pervasive control’ to the ‘nature of the duties/functions performed’. Therefore, we would answer the question as follows: A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities.” [Justice V. Ramasubramanian (majority judgement on behalf of himself and Justices S. Abdul Nazeer, B.R. Gavai, and A.S. Bopanna) in Kaushal Kishor v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4]

11. Hate speech strikes at fundamental constitutional values

“In India, human dignity is not only a value but a right that is enforceable. In a human-dignity-based democracy, freedom of speech and expression must be exercised in a manner that would protect and promote the rights of fellow citizens. But hate speech, whatever its content may be, denies human beings the right to dignity…The expansive scope of ‘hate speech’ would include within its sweep not only ‘hate speech’ simplicitor which is defined as speech aimed at systematic discrimination and eventual political marginalisation of a community, but also other species of derogatory, vitriolic and disparaging speech. Having regard to the unequivocal declaration of this Court, to the effect that Article 21 could not be sacrificed at the altar of securing the widest amplitude of free speech rights, this premise can serve as a theoretical justification for prescribing restraints on derogatory and disparaging speech. Human dignity, being a primary element under the protective umbrella of Article 21, cannot be negatively altered on account of derogatory speech, which marks out persons as unequal and vilifies them leading to indignity…Equality, liberty and fraternity are the foundational values embedded in the Preamble of our Constitution. ‘Hate speech’ strikes at each of these foundational values, by marking out a society as being unequal. It also violates fraternity of citizens from diverse backgrounds, the sine-qua-non of a cohesive society based on plurality and multi-culturalism such as in India that is, Bharat. Democracy, being one of the basic features of our Constitution, it is implicit that in a rule by majority there would be a sense of security and inclusiveness. Further, the Preamble of the Constitution which envisages, inter alia, fraternity, assures that the dignity of individuals cannot be dented by means of unwarranted speech being made by fellow citizens, including public functionaries. Thus, the Preamble of the Constitution and the values thereof assuring the people of India not only justice, liberty, equality but also fraternity and unity and integrity of the nation, must remind every citizen of this Country irrespective of the office or position or power that is held, of the sublime ideals of the Constitution and to respect them in their true letter and spirit. There is an inbuilt constitutional check to ensure that the values of the Constitution are not in any way undermined or violated. It is high time that we, as a society in general and as individuals in particular, re-dedicate ourselves to the sacred values of the Constitution and promote them not only at our individual level but at the macro level. Any kind of speech which undermines the values for which our Constitution stands would cause a dent on our social and political values.” [Justice B.V. Nagarathna (minority judgement) in Kaushal Kishor v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4]

12. Collective responsibility for minister’s statement reflective of government’s view

“A Minister may make a statement in two capacities. First in his personal capacity. Second in his official capacity and as a delegate of the Government. It is a no-brainer that that in respect of the former category of statements, no vicarious liability may be attributable to the government itself. The latter category of statements may be traceable to any affairs of the State or may be made with a view to protect the government. If such statements are disparaging or derogatory, and represents not only the personal views of the individual minister making them but also embody the views of the government, then such statements can be attributed vicariously to the government itself, especially in view of the principle of collective responsibility. In other words, if such statements are endorsed not only in the statements made by the individual minister but also reflective of the government stance, such statement may be attributed vicariously to the government. However, if such statements are stray opinions of an individual minister and are not consistent with the views of the government, then they shall be attributable to the minister personally and not to the government…[Therefore], a statement made by a Minister if traceable to any affairs of the State or for protecting the Government, can be attributed vicariously to the Government by invoking the principle of collective responsibility, so long as such statement represents the view of the Government also. If such a statement is not consistent with the view of the Government, then it is attributable to the Minister personally.” [Justice B.V. Nagarathna (minority judgement) in Kaushal Kishor v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4]

13. Habeas corpus writs can be issued against non-state actors for illegal detention

“Although the content of a common law right and a fundamental right may be almost identical, the remedy against violation of a common law right shall lie under common law and not under the Constitution. Similarly, the remedy against a violation of a fundamental right is provided for under the Constitution itself expressly against the state…The rights in the realm of common law, which may be similar or identical in their content to the Fundamental Rights under Article 19/21, operate horizontally: However, the Fundamental Rights under Articles 19 and 21, may not be justiciable horizontally before the Constitutional Courts except those rights which have been statutorily recognised and in accordance with the applicable law. However, they may be the basis for seeking common law remedies. But a remedy in the form of a writ of Habeas Corpus, if sought against a private person on the basis of Article 21 of the Constitution can be before a Constitutional Court i.e., by way of Article 226 before the High Court or Article 32 read with Article 142 before the Supreme Court. In my humble view, an illegal detention is a violation of Article 21 of the constitution irrespective whether the detention is by the state or by a private person. Therefore, in the context of the remedy of writ of habeas corpus, Article 21 would operate horizontally.” [Justice B.V. Nagarathna (minority judgement) in Kaushal Kishor v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4]

14. Democratising municipalities and ensuring representation not competing values

“The [Allahabad] High Court has directed that until the triple test/conditions as mandated by Supreme Court in K. Krishna Murthy v. Union of India, (2010) 7 SCC 202, and Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73, is completed in all respects by the State Government, no reservation for Backward Class of citizens shall be provided. The above direction of the High Court, which mandates the holding of elections to local bodies in Uttar Pradesh without reserving seats for Backward Classes of citizens will result in a violation of the constitutional and statutory requirements of reservation for the Other Backward Classes (OBCs). Democratization of municipalities under Article 243T and the duty to provide representation are not at competing values. Prima facie, the high court is not correct in prioritising one over the other and directing the holding of elections without the provision of representation for the Backward Classes. Democratising the municipalities and true representation in the composition of the municipalities under Article 243T are both constitutional mandates. When a constitutional court is called upon to review the decisions of the State in this context, it must ensure that both these values are given full effect so that truly representative and vibrant local bodies contemplated under Part IXA of the Constitution are realised. Hence, the direction needs to be stayed.” [Order by a bench of Chief Justice D.Y. Chandrachud and Justice P.S. Narasimha in State of Uttar Pradesh v. Vaibhav Pandey & Anr., Special Leave Petition (Civil) No. 128/2023]

15. Fifty thousand people cannot be uprooted overnight within seven days

“The Additional Solicitor-General has emphasized the need of the Railways but the moot point to be considered would be the stand of the State Government also as to whether the complete land [in Haldwani, Uttarakhand] is to vest in the Railways or the State Government is claiming a part of the land. Apart from that, there are issues of occupants claiming rights in the land as lessees/auction purchasers. We have cavil to the way the directions have been passed in the impugned order as there cannot be uprooting of 50 thousand people overnight within seven days. We do believe that a workable arrangement is necessary to segregate people who may have no rights in the land and those who have but to be removed but coupled with schemes of rehabilitation which may already exist while recognizing the need of the Railways. We have put to the Additional Solicitor-General that look may be had to the methodology of achieving the purpose of the requisite land being made available to the Railways coupled with the rehabilitation of the persons in the area.” [Order by a bench of Justices Sanjay Kishan Kaul and Abhay S. Oka in Abdul Mateen Siddiqui v. Union of India & Ors., Special Leave Petition (Civil) No. 289/2023]

16. Centre delaying transfer of judges gives impression of third party interferences

"The transfer of High Court Judges is done in the interest of administration of justice and exception apart there is no reason for any delay on the part of the Government in implementing the same. The Collegium discusses and seeks opinion of consultee Judges as also the Chief Justices from where transfer is being made and where to transfer is being made. Comments of the Judges concerned are also obtained. At times at the request of the Judge concerned, alternative Court is also assigned for transfer looking to the exigency of the situation. This process is completed before recommendation is made for transfer of Judge to the Government. Delay in the same not only affects the administration of justice but creates an impression 4 as if there are third party sources interfering on behalf of these Judges with the Government" [Order by a bench of Justices Sanjay Kishan Kaul and Abhay S. Oka in Advocates Association Bengaluru v. Barun Mitra And Anr. Contempt Petition (C) No. 867/2021 in TP(C) No. 2419/2019]