1. Weakness of defence not a justification to take away possession

“The defendants cannot be dispossessed unless the plaintiff has established a better title and rights over [a] property. A person in possession of land in the assumed character as the owner, and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner. A decree of possession cannot be passed in favour of the plaintiff on the ground that defendants have not been able to fully establish their right, title and interest in the property. The defendants, being in possession, would be entitled to protect and save their possession, unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to possession…If both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit.” [Justice Sanjiv Khanna in Smriti Debbarma (Dead) v. Prabha Ranjan Debbarma, 2023 LiveLaw (SC) 19]

2. Responsibility on state to preserve heritage status of La Corbusier’s Chandigarh

“Chandigarh has done remarkably well, offering striking monumental architecture, a grid of self-contained neighbourhoods, more trees than perhaps any Indian city and a way of life that juggles tradition with modernity…It has been recommended that to prevent undue change or damage to the historic and cultural value of Le Corbusier’s urbanism, interim orders must not be issued to make any modifications in the heritage areas approved by the Government of India, the circulation structure, the generic sector, architectural control and the plantations. Judicial notice can be taken of the creation of the city of Brasilia as the capital of Brazil. The city was planned by urban planner Lucio Costa and architect Oscar Niemeyer. It will be interesting to note that while planning the said city, urban living as promoted by Le Corbusier and his treatise titled ‘How to Conceive Urbanism’ served as an inspiration. It is worthwhile to note that in spite of various changes, Lucio Costa’s Pilot Project (Plano Piloto) still remains preserved…Similar steps have been taken for protecting the White City of Tel-Aviv and the city of Le Havre, rebuilt by Auguste Perret. We find that similar steps need to be taken by the Chandigarh Administration as well as the Government of India for protecting the heritage status of Le Corbusier’s Chandigarh…A responsibility is cast upon the State as well as the citizens to protect and conserve the heritage. Undisputedly, Phase-I of Chandigarh, i.e., Corbusian Chandigarh possesses a heritage status. The CMP-2031 itself emphasizes that Chandigarh should be included in the UNESCO’s World Heritage List due to its outstanding universal value. The fragmentation/apartmentalization of residential units in Phase-I of Chandigarh is destructive of the vision of Le Corbusier. It is also opposed to the concept of protecting and preserving the heritage status of Corbusian Chandigarh. As such, it is necessary that the respondent-authorities must take every possible step for preserving the heritage status of Corbusian Chandigarh.” [Justice B.R. Gavai in Residents Welfare Association & Anr. v. The Union Territory of Chandigarh & Ors., 2023 LiveLaw (SC) 24]

3. EIA for preventing harmful effects of haphazard urbanisation

“The United Nations Environment Programme (UNEP) notes in its publication titled ‘Integrating the Environment in Urban Planning and Management – Key Principles and Approaches for Cities in the 21st Century’ that more than half of the world’s population is now living in urban areas. It further noted that by the year 2050, more than half of Africa and Asia’s population will live in towns and cities. It recognized that City Development Strategies (CDSs) have shown how to integrate environmental concerns in long-term city visioning exercises. It states that environmental mainstreaming can help to incorporate relevant environmental concerns into the decisions of institutions, while emerging ideas about the green urban economy show how density can generate environmental and social opportunities. It states that the strategies need to be underpinned with governance structures that facilitate integration of environmental concerns in the planning process. The said publication defines Environmental Impact Assessments to be an analytical process or procedure that systematically examines the possible environmental consequences of the implementation of a given activity (project). It is aimed to ensure that the environmental implications of decisions related to a given activity are taken into account before the decisions are made. Judicial notice is also taken of the cover story published in the weekly, ‘India Today’ titled as ‘Bengaluru – How to Ruin India’s Best City’ by Raj Chengappa with Ajay Sukumaran. The said article depicts the sorry state of affairs as to how the city of Bengaluru, once considered to be one of India’s best cities, a ‘Garden city’ has been ruined on account of haphazard urban development…The warning flagged by the city of Bengaluru needs to be given due attention by the legislature, executive and the policy makers. It is high time that before permitting urban development, Environmental Impact Assessments of such development needs to be done…It is high time that the Legislature, the Executive and the Policy Makers at the Centre as well as at the State levels take note of the damage to the environment on account of haphazard developments and take a call to take necessary measures to ensure that the development does not damage the environment. It is necessary that a proper balance is struck between sustainable development and environmental protection. We therefore appeal to the Legislature, the Executive and the Policy Makers at the Centre as well as at the State levels to make necessary provisions for carrying out Environmental Impact Assessment studies before permitting urban development.” [Justice B.R. Gavai in Residents Welfare Association & Anr. v. The Union Territory of Chandigarh & Ors., 2023 LiveLaw (SC) 24]

4. FIR cannot be quashed without giving reasonable time for investigation

“It is a settled position of law that while exercising powers under Section 482 of the Code of Civil Procedure, the High Court is not required to conduct the mini trial. What is required to be considered at that stage is the nature of accusations and allegations in the FIR and whether the averments/allegations in the FIR prima facie discloses the commission of the cognizable offence or not…It is also required to be noticed that in the present case without giving any reasonable time to the Investigating Agency to investigate the allegations in the FIR, the High Court has, in haste, quashed the criminal proceedings. The FIR [against political commentator Maridhas Malaichamy] came to be lodged on 09.12.2021, immediately, on the very next date, the quashing petition was filed and within a period of four days i.e., 14.12.2021, the impugned judgment and order has been passed and the criminal proceedings are quashed. As per the settled position of law, it is the right conferred upon the Investigating Agency to conduct the investigation and reasonable time should be given to the Investigating Agency to conduct the investigation unless it is found that the allegations in the FIR do not disclose any cognizable offence at all or the complaint is barred by any law. Under the circumstances, the impugned judgment and order passed by the High Court quashing and setting aside the criminal proceedings deserves to be quashed and set aside.” [Order by bench of Justices M.R. Shah and C.T. Ravikumar in State Represented by The Inspector of Police v. Maridass and Anr, 2023 LiveLaw (SC) 25]

5. Dowry harassment claim not invalidated by AIDS or divorce petition

“The [Allahabad] High Court has quashed the criminal proceedings by observing that as the original complainant/wife was suffering from the disease AIDS and that a divorce petition was also stated to be pending between the parties, the allegations of demand of dowry are inherently improbable. Merely because the wife was suffering from the disease AIDS and/or divorce petition was pending, it cannot be said that the allegations of demand of dowry were highly/inherently improbable and the said proceedings can be said to be bogus proceedings. Therefore, the reasoning given by the High Court while quashing the criminal proceedings is not germane and the High Court while quashing the criminal proceedings in exercise of powers under Section 482 of the Code of Criminal Procedure, 1973 has seriously erred and exceeded in its jurisdiction under Section 482. Once the charge sheet was filed after the investigation having been found prima facie case, it cannot be said that the prosecution was bogus. Under the circumstances, the impugned judgment and order passed by the High Court quashing the criminal proceedings is unsustainable.” [Order by bench of Justices M.R. Shah and C.T. Ravikumar in X v. State of Uttar Pradesh, 2023 LiveLaw (SC) 26]

6. Writ cannot be issued to Parliament to make Law Commission statutory body

“Invoking the jurisdiction under Article 32 of the Constitution, the petitioner has sought a direction to the Union government to (i) take steps to constitute the Twenty-Second Law Commission of India; and (ii) make the Law Commission a statutory body. The Attorney General states that the Twenty-Second Law Commission has been constituted by two notifications in November 2022. The petitioner also seeks a direction ‘to make Law Commission of India a statutory body’. Such a direction would necessarily implicate a writ of mandamus being issued to Parliament in its legislative capacity. It is a settled position of law that a writ cannot be issued to Parliament to enact a law. This pertains exclusively to the legislative domain. Hence, we decline to entertain the Petition for the subsequent part of the relief as claimed.” [Order by bench of Chief Justice D.Y. Chandrachud and Justice P.S. Narasimha in Ashwini Kumar Upadhyay v. Union of India & Ors., Writ Petition (Civil) No. 1477/2020]

7. Women are not chattel and have their own identity even after marriage

“Now, so far as the challenge to the [exclusion] from the exempted category under Section 10(26AAA) of the Income Tax Act, ‘a Sikkimese woman, who marries a non-Sikkimese after 01.04.2008’ is concerned, there is no justification shown and/or demonstrated to exclude ‘a Sikkimese woman, who marries a non-Sikkimese after 01.04.2008’ from the exempted category. Apart from the above, the same is clearly hit by Articles 14, 15 and 21 of the Constitution of India. The discrimination is based on gender, which is wholly violative of Articles 14, 15 and 21 of the Constitution of India. It is to be noted that there is no disqualification for a Sikkim man, who marries a non-Sikkimese after 01.04.2008. As rightly submitted, 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. In the case of G. Sekar v. Geetha, (2009) 6 SCC 99, it is observed and held that the exclusion of women from inheritance on the ground of gender was a clear violation of the constitutional prohibition against unfair discrimination. It is observed and held that in terms of Articles 14 and 15 of the Constitution of India, 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. Even otherwise, there is no justification shown to exclude ‘a Sikkimese woman, who marries a non-Sikkimese after 01.04.2008’.” [Justice M.R. Shah in Association of Old Settlers of Sikkim v. Union of India, 2023 LiveLaw (SC) 28]

8. Old Indian settlers migrating to Sikkim before merger also ‘Sikkimese’

“It is to be noted that as such the purpose of Section 10(26AAA) of the Income Tax Act is to grant exemption to the residents of Sikkim from payment of income tax. Therefore, all such Indians/citizens, who have settled in Sikkim prior to the merger of Sikkim with India on 26.04.1975 are to be treated at par and they form the same group/class and are entitled to the exemption under the section. As such, there is no difference and/or distinction between those ‘Sikkim Subjects’, whose names are recorded in the register maintained under the Sikkim Subjects Regulations, 1961 and those Indians, who have settled in Sikkim prior to the merger of Sikkim, but whose names were not recorded as ‘Sikkim Subjects’ in the register. All are ‘Sikkimese’. Merely because at the relevant time and when the Sikkim Subjects Regulations, 1961 was enacted, the Indians settled in Sikkim did not surrender their Indian citizenship or their fathers/forefathers’ names were not entered into the register maintained under the Sikkim Subjects Regulations, 1961, by itself, it cannot be said that they cease to be the ‘Sikkimese’. All of them are similarly situated with those ‘Sikkimese’ / ‘Sikkim Subjects’, who all have settled in Sikkim prior to the merger of Sikkim with India on 26.04.1975…The Union of India has failed to satisfy any reasonable classification and/or nexus to exclude such class of Indians, who, in fact, have settled in Sikkim prior to 26.04.1975. Therefore, exclusion of old Indian settlers, who have settled in Sikkim prior to the merger of Sikkim with India on 26.04.1975 from the definition of ‘Sikkimese’ in Section 10(26AAA) is arbitrary, discriminatory and violative of Article 14 of the Constitution of India.” [Justice M.R. Shah in Association of Old Settlers of Sikkim v. Union of India, 2023 LiveLaw (SC) 28]

9. Proviso cannot overarch a provision in an Act

“When a benefit is being given to a Sikkimese individual which would include all genders under the provision, by way of the Explanation being added, which is in the nature of a definition, the proviso cannot exclude a certain category of married Sikkimese women from the said Explanation and thereby, deprive them of the said benefit of exemption from payment of income tax on the basis of to whom they are married to. When the Explanation refers to an ‘individual’, it includes both Sikkimese men and women, in fact, all genders; it cannot have a restrictive or myopic reference to only Sikkimese men and exclude those Sikkimese women covered under the proviso. A proviso cannot over arch a provision…The normal function of a proviso is to except something out of the provision or to qualify something enacted therein which, but for the proviso, would be within the purview of the provision. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. In other words, a proviso qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main provision. Further, a proviso cannot be construed as nullifying the provision or as taking away completely a right conferred by the enactment. If it does so and is discriminatory then it falls foul of the equality clauses of the Constitution of India…In the instant case, the proviso is overriding the provision as well as the Explanation in respect of those categories of married Sikkimese women referred to in the proviso which is impermissible. Thus, the proviso is inherently arbitrary and discriminatory against a particular category of Sikkimese women” [Justice B.V. Nagarathna (concurring opinion) in Association of Old Settlers of Sikkim v. Union of India, 2023 LiveLaw (SC) 28]

10. Marriage-related physical attributes, pregnancy, ageing cannot be basis for policy

“In Air India v. Nergesh Meerza, AIR 1981 SC 1829, the question was, whether a four-year bar on marriage immediately on obtaining employment in Air India, applicable only to women employees, could be retained as a reasonable provision. This Court held the same to be a sound and salutary provision on the ground that it would “improve the health of the employee” and “she becomes fully mature and there is every chance of such a marriage proving a success, all things being equal…”. The said judgment was delivered in the year 1981 but with the passage of time and owing to the worldwide movement towards gender justice and elimination of all discrimination against women, acquiring momentum, I am of the considered view that a ban on marriage in respect of a female employee immediately for a period of four years on her being appointed by the employer is also discriminatory. Hence, this aspect of gender discrimination would require a reconsideration and course correction. This is because choice of marriage as well as exercising an option as to when to marry is a Fundamental Right under Article 21 of the Constitution of India…However, in the very same case, this Court found the termination of service of a woman employee on her first pregnancy to be shocking as it was an open insult to “Indian womanhood” and hence, the said action was extremely detestable and abhorrent to the notions of a civilised society and therefore, violative of Article 14 of the Constitution. In fact, this Court observed that the rule could be amended so that termination of the services of an employee on her third pregnancy could be permitted which aspect also, in my view, calls for reconsideration in the absence of any qualifying parameters…In Air India Cabin Crew Assn. v. Yeshaswinee Merchant & Ors., AIR 2004 SC 187, this Court set aside a decision of the Bombay High Court and upheld the early retirement of women employees, namely, air hostesses in Air India which was then a public sector undertaking. Justifying its decision, this Court observed that, “there cannot be any cut and dried formula for fixing the age of retirement” and this “would always depend on a proper assessment of the relevant factors and may conceivably vary from case to case”. With due respect, I find that the aforesaid two judgments have an underlying emphasis on the physique and physical appearance of women related to their marriage, consequent pregnancy and ageing which cannot be the rationale or basis for making policy decisions or regulations as they are discriminatory on the basis of sex and thus, unconstitutional.” [Justice B.V. Nagarathna (concurring opinion) in Association of Old Settlers of Sikkim v. Union of India, 2023 LiveLaw (SC) 28]