25 important judgments of Justice MR Shah as Supreme Court judge

Despite serving a relatively short tenure, Justice Shah authored a relatively high number of judgments - 712.
Justice MR Shah
Justice MR Shah

Justice Mukeshkumar Rasikbhai Shah, who was elevated as a Supreme Court judge on January 2, 2018, demitted office on May 15.

He was born on May 16, 1958, in Gujarat. Prior to his elevation to the Supreme Court, Justice Shah served as Chief Justice of the Patna High Court from August 12, 2018 to November 1, 2018. Before that, he served as a judge of the Gujarat High Court.

Despite serving a relatively short tenure, Justice Shah authored a relatively high number of judgments - 712.

Justice Shah presided over several important cases during his tenure as an apex court judge. Here is a look at some of them.

1. Supreme Court stays recent promotion of judicial officers on seniority-cum-merit basis by Gujarat High Court, State

Case Title: Ravikumar Maheta and Another v. High Court of Gujarat and Others

A Division Bench of the Supreme Court stayed the decision of the Gujarat High Court and the subsequent State government notification to promote 68 judicial officers to the post of district judge based on the seniority-cum-merit rule i.e. where seniority is given preference over merit.

Justice Shah, who authored the decision, held that it was satisfied that "orders issued by the state govt is violative of the supreme court judgments delivered."

However, the Court made it clear that the stay will not apply to those in the list who would get promoted based on merit alone, since they would anyway make it even if the promotion was based on merit.

It was also widely reported that among the 68 promoted was Surat Judicial Magistrate Harish Hasmukhbhai Varma who held Congress leader Rahul Gandhi guilty of criminal defamation in March and sentenced him to two years of simple imprisonment.

However, in an interview with Bar & Bench, Justice Shah clarified that the stay passed by him was reported incorrectly by the media, and that the judge who convicted Gandhi will not fall under the ambit of the stay.

2. Mere membership of unlawful association sufficient to constitute an offence under UAPA: Supreme Court upholds Section 10(a)(i)

Case Title: Arup Bhuyan v. State of Assam Home Department and Another

In this case, a three-judge bench of the Supreme Court held that holding membership of an association declared unlawful by the Central government is sufficient to constitute an offence under the Unlawful Activities Prevention Act (UAPA).

Justice Shah, who wrote the lead judgment, upheld the validity of Section 10(a)(i) of the UAPA, which was earlier read down by a division bench of the Court in 2011.

In 2011, a Bench of Justices Markandey Katju and Gyan Sudha Mishra had acquitted one Arup Bhuyan, and soon after, one Indra Das, for offences under the Terrorist and Disruptive Activities (Prevention) Act (TADA).

"Aim of UAPA is to prevent certain unlawful activities and prevent the same...at the cost of repetition, UAPA is to punish the person a member of an unlawful organisation in furtherance of the provisions of the UAPA...Thus Section 10(a)(i) is absolutely in consonance with Articles 19(1)(a) and 19(2) of the Constitution and thus in consonance with the objectives of the UAPA," the judgment authored by Justice Shah reads.

3. Five-Judge Constitution Bench judgment in Maharashtra Political crisis

Case Title: Subhash Desai v. Principal Secretary, Governor of Maharashtra and Others

In this case, a five-judge Constitution Bench of the Supreme Court held that the decision of former Maharashtra Governor Bhagat Singh Koshyari's decision to call for a floor test based on the request of 34 MLAs of the Eknath Shinde faction was incorrect. It was noted that Koshyari did not have enough objective material before him to conclude that then Chief Minister Uddhav Thackeray had lost the confidence of the house.

The Bench, of which Justice Shah was also a part, ruled that the status quo cannot be restored now since Thackeray did not face the floor test but chose to resign.

Hence, the Court said that the Governor's decision to call Eknath Shinde to be sworn in as Chief Minister was correct.

The Court, however, underlined that the Governor could not have doubted the majority of the Thackeray government and dissatisfaction of some MLAs was not enough to call the floor test.

4. Five-Judge Constitution Bench judgment in settling the tussle between the Union and Delhi governments for administrative control of NCT Delhi

Case Title: Government of NCT of Delhi v. Union of India

In this case, a five-judge bench Constitution Bench of the Supreme Court held that the Delhi government would have control over all services in the national capital, including the Indian Administrative Service (IAS), except those pertaining to land, police and law and order.

The Court ruled,

"The legislative power of NCT Delhi under Entry 41 would extend to IAS and it shall control them even if they are not recruited by the NCT Delhi. However, it would not extend to the services which comes under land, law and order and police. Lieutenant Governor (LG) shall be bound by the decision of NCT Delhi over services apart from land, police and law and order."

The unanimous judgment stated that while a state or union territory has the power to make laws on subjects under the Concurrent List, the same will be subject to the existing Central law. At the same time, it has to be ensured that the governance of states is not taken over by the Central government.

The Court went on to hold that sub-clause (b) of Article 239AA clarifies that Parliament has the power to legislate on any subject related to the NCT in any of the three lists. If there is a repugnancy between law enacted by legislative assembly and law enacted by the Central government, the former will be rendered void.

5. Whether an investigation under the NDPS Act will get vitiated if the informant is the investigating officer? Constitution Bench of Supreme Court answers

Case Title: Mukesh Singh v. State (Narcotic Branch of Delhi)

A five-judge Constitution Bench of the Supreme Court held that a person accused for an offence under the Narcotics Drugs and Psychotropic Substances Act (NDPS Act) is not entitled to acquittal on the ground that the informant and the investigating officer are the same.

Justice Shah, who wrote the unanimous judgment, held that there is no automatic apprehension of bias when the informant and the investigation officer (IO) is the same, and such cases will have to be decided on a case-to-case basis.

6. Release on default bail no bar on cancellation of bail on merits after chargesheet presented

Case Title: State through Central Bureau of Investigation v. T Gangi Reddy @ Yerra Gangi Reddy

In this case, a Division Bench of the Supreme Court held that release of an accused person on default bail will not act as an absolute bar to consider a plea for cancellation of bail on merits after presentation of chargesheet.

Justice Shah answered the question of whether bail can be cancelled after presentation of the chargesheet, when it was granted for not filing the chargesheet within 90 days.

The Court underscored that when an accused had committed a serious, non-bailable offence, the Court cannot ignore,

" ... the gravity of the offence committed by the accused, the Courts will be loathe for such an interpretation, as that would frustrate the justice. The Courts have the power to cancel the bail and to examine the merits of the case in a case where the accused is released on default bail and released not on merits earlier. Such an interpretation would be in furtherance to the administration of justice."

7. Chargesheet not public document; Supreme Court dismisses plea to publish chargesheets filed by police on government websites

Case Title: Saurav Das v. Union of India and Others

The Court dismissed a plea to publish chargesheets filed by the police, the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) in public domain and on government websites.

Justice Shah, who authored the decision, ruled that publishing chargesheets filed in criminal cases by investigating agencies would be contrary to the scheme envisaged by the Code of Criminal Procedure (CrPC).

"...it may as such violate the rights of the accused as well as the victim and/or even the investigating agency. Putting the FIR on the website cannot be equated with putting the chargesheets along with the relevant documents on the public domain and on the websites of the State Governments."

The Court said that a chargesheet is not a 'public document' and cannot, therefore, be published online.

8. Judgment barring police custody beyond 15 days after arrest needs review

Case Title: Central Bureau of Investigation v. Vikas Mishra

In this case, the Court called for reconsideration of its 1992 decision in CBI v. Anupam J Kulkarni that said that a person cannot be detained in police custody after the expiry of fifteen days from their initial arrest in a case.

Justice Shah opined that at present, the remand period can get over by the time a higher court sets aside an incorrect decision denying custody.

"It is true that in the case of Anupam J. Kulkarni (supra), this Court observed that there cannot be any police custody beyond 15 days from the date of arrest. In our opinion, the view taken by this Court in the case of Anupam J. Kulkarni (supra) requires re-consideration."

9. Five-Judge Constitution Bench strikes down 100% reservation in teaching posts for Scheduled Tribes in scheduled areas

Case Title: Chebrolu Leela Prasad Rao and Others v. State of Andhra Pradesh and Others

In this case, a five-judge Constitution Bench of the Supreme Court held that a government order passed by the erstwhile State of Andhra Pradesh allowing for 100% reservation in teaching posts for Scheduled Tribes in scheduled areas is illegal and impermissible.

The Court quashed a government order passed in the year 2000 which provided for such reservation.

It held that providing 100% reservation is "not permissible under the Constitution of India" and specified that the outer limit for reservations as laid down in the Indra Sawhney judgment stands at 50%. The Court also added that the notification was violative of Articles 14 and 16(4) of the Constitution.

10. Five-Judge Constitution Bench of Supreme Court rules that SARFAESI Act is applicable to Cooperative Banks

Case Title: Pandurang Ganpatii Chaugule v. Vishwasrao Patil Murgud Sahakari Bank Limited

A five-judge Constitution Bench held that co­operative banks come under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Act 2002 (SARFAESI Act).

The Bench held that co-operative banks are "banks" for the purposes of Section 2(1)(c) of the SARFAESI Act, and that the recovery procedure u/s 13 of the Act is also applicable to such banks.

The judgment also states that co-operative banks registered under state-specific acts and multi­-state level co­operative societies registered under the Multi­ State Co­operative Societies Act, 2002 concerning 'banking' are governed by the legislation relatable to Entry 45 of List I of the 7th Schedule.

11. Five-Judge Constitution Bench of Supreme Court says State legislatures can give preferential reservation to sub-castes

Case Title: State of Punjab v. Davinder Singh

A five-judge Constitution Bench of the Supreme Court held that state legislatures may make laws to give preferential reservation to sub-castes within categories.

It diverged from another Constitution Bench judgment in the case of EV Chinnaiah v. the State of Andhra Pradesh, that held the contrary.

The Court was of the view that once the state has the power to give reservations, it can also make sub-classification to extend benefit to those sub-castes not receiving the benefit.

12. Five-Judge Constitution Bench of Supreme Court interprets Section 24 of the Land Acquisition Act, 2013

Case Title: Indore Development Authority v. Manoharlal and Others

In this case, a five-judge bench Constitution Bench of the Supreme Court held that under Section 24(1)(a) of the Land Acquisition Act, in case the award is not made as of January 1, 2014 (date of commencement of the 2013 Act), there will be no lapse of proceedings and the compensation will have to be determined as under the 2013 Act.

The Bench overruled all precedents pertaining to the interpretation of Section 24 of the Land Acquisition Act, 2013.

In case the award is passed within the window of five years, then proceedings shall continue as under 24(1)(b) of 2013 Act "under the Act of 1894 as if it has not been repealed". The period of five years mentioned here excludes the period of time covered under any interim orders passed by the courts, the apex court clarified.

Further, the word "or" used in S. 24(2) has to be read as "nor" or "and", the Court said.

13. Supreme Court upholds constitutional validity of Section 140(5) Companies Act; says auditors cannot escape being probed if they resign

Case Title: Union of India v. Deloitte Haskins

In this case, the Supreme Court set aside an order of the Bombay High Court that had quashed the Serious Fraud Investigation Office (SFIO) complaint against Deloitte Haskins and Sells and KPMG arm BSR & Associates in connection with the Infrastructure Leasing & Financial Services (IL&FS) financial fraud case.

Justice Shah, who authored the decision, held that the High Court erred in holding that the resignation of auditor means that proceedings against auditor before the National Company Law Tribunal (NCLT) under Section 140(5) will end.

"Subsequent resignation of an auditor after the application is filed under section 140(5) by itself shall not terminate the proceedings under section 140(5). Resignation and/or removal of an auditor cannot be said to be an end of the proceedings under section 140(5). There are further consequences also on culmination of the enquiry under section 140(5) proceedings", Justice Shah said.

The Court explained that if such a position is taken, auditors, whenever they face proceedings, will resign and that this could not have been the legislature's intention.

14. Government servants can't be denied annual increment merely because they retired the very next day of earning it

Case Title: The Director (Admn. and HR) KPTCL and Others v. CP Mundinamani and Others

In this case, the Supreme Court held that government servants cannot be denied their annual increment merely because they retired the very next day after earning the same.

Justice Shah, who authored the decision, disapproved of the decision of the Karnataka High Court which stated that increment is in the form of incentive and, therefore, when employees are not in service, there is no question of granting them any annual increment.

"Merely because, the government servant has retired on the very next day, how can he be denied the annual increment which he has earned and/or is entitled to for rendering the service with good conduct and efficiently in the preceding one year," the order stated.

15. Implementation of Digital DIN System for communication between State Tax Officers and Taxpayers

Case Title: Pradeep Goyal v. Union of India

The Court directed the GST Council to issue an advisory to the States of Karnataka and Kerala regarding implementation of the system of electronic (digital) generation of a Document Identification Number (DIN) in the indirect tax administration.

Justice Shah observed that the system, which is already being implemented by the States, would be in the larger public interest and enhance good governance. It also observed that the same will bring in transparency and accountability in the indirect tax administration, which are so vital to efficient governance.

16. Supreme Court finally acquits 6 persons sentenced to death by its 2009 judgment

Case Title: Ankush Maruti Shinde and Others v. State of Maharashtra

In this case, a three-judge Bench of the Supreme Court acquitted six persons who were sentenced to death by it in 2009.

Justice Shah, who authored the decision, ordered the State of Maharashtra to pay ₹5 lakh in damages to each of them.

The appellants were accused of committing five murders and raping a lady (who survived) and a child of 15 years of age (who died).

Justice Shah in an interview with Bar and Bench had said that the judgment in Ankush Maruti Shinde is one of those judgments which gives him immense satisfaction.

17. Supreme Court allows Permanent Commission to women officers

Case Title: Lieutenant Colonel Nitisha v. Union of India and Others

A Division Bench of the Supreme Court ordered the Central government to allow Permanent Commission (PC) to women in the Armed Forces who were excluded from the same on the ground of unequal application of fitness standards.

The Bench noted that the fitness standards, known as Shape 1 criteria, were applicable to male officers at the time when they were granted Permanent Commission in the early years of service.

However, the aggrieved women officers before the Supreme Court were granted PC only the previous year, pursuant to Supreme Court's landmark judgment in Secretary Ministry of Defence v. Babita Puniya and were therefore senior in age. Therefore, applying the Shape 1 Fitness rule to them now would be arbitrary.

18. Daughters become equal coparceners at birth even if born prior to 2005 amendment to Hindu Succession Act

Case Title: Vineeta Sharma v. Rakesh Sharma

A three-judge Bench of the Supreme Court held that daughters would have equal coparcenery rights in Hindu Undivided Family (HUF) properties even if they were born before the 2005 amendment to the Hindu Succession Act, 1956 and regardless of whether their father had died before the amendment.

The Court ruled that the 2005 amendment would have retroactive effect in conferring rights on daughters who were alive at the time of the amendment, even if they were born prior to it.

Recognizing the importance of conferring equal rights on daughters and sons, the Court said,

"Daughters have to be given equal share of coparcenary rights in share of property like the son."

19. Progress of any society depends on its ability to protect rights of women: Supreme Court on woman's right to reside in shared household

Case Title: Satish Chander Ahuja v. Sneha Ahuja

A three-judge Bench of the Supreme Court held that the term “shared household” under Section 2(s) does not only mean a household of the joint family of which husband is a member or in which husband of the aggrieved person has a share.

The Bench which also comprised Justice Shah overruled the judgment in SR Batra and Anr. v. Taruna Batra, where it was held that since the house belongs to the mother-in-law of the wife and does not belong to the husband, the wife cannot claim any right to live in the said house.

"The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share," the Court said.

20. Reassessment notices issued under Section 148 after 2021 amendment will be deemed to be issued under Section 148A

Case Title: Union of India v. Ashish Agarwal and Others

In this case, the Court held that notices issued to assessees under Section 148 of the Income Tax Act of 1961 shall be deemed to be issued under Section 148A of the newly-amended Act as was substituted by the 2021 Finance Act.

Justice Shah, who authored the decision, exercised the Court's powers under Article 142 of the Constitution to say that the present ruling will apply not just to the order under challenge but to all similar judgments across the country.

"There appears to be genuine non-application of the amendments as the officers of the Revenue may have been under a bonafide belief that the amendments may not yet have been enforced ... [Present interpretation] will strike a balance between the rights of the Revenue as well as the respective assesses as because of a bonafide belief of the officers of the Revenue in issuing approximately 90,000 such notices, the Revenue may not suffer as ultimately it is the public exchequer which would suffer," the Bench held.

21. 2015 amendment to Section 153C of Income Tax Act will apply to searches conducted prior to date of amendment

Case Title: Income Tax Officer v. Vikram Sujitkumar Bhatia

In this case, a division bench of the Supreme Court held that the amendment brought to Section 153C of the Income Tax Act 1961 by the Finance Act 2015 will retrospectively apply to searches conducted prior to the date of the amendment.

Justice Shah, who authored the decision, stressed that any interpretation that may frustrate the very object and purpose of an act or statute, has to be avoided.

The top court in its judgment observed that,

" ... even the unamended Section 153C pertains to the assessment of income of any other person. The object and purpose of Section 153C is to address the persons other than the searched person. Even as per the unamended Section 153C, the proceeding against other persons (other than the searched person) was on the basis of the seizure of books of account or documents seized or requisitioned “belongs or belong to” a person other than the searched person."

22. Accused not entitled to default bail when first extension passed in his absence is not challenged and second extension was passed in his presence

Case Title: Qamar Ghani Usmani v. State of Gujarat

The Court held that an accused cannot claim the benefit of default bail, when he did not challenge the first extension of time granted for investigation and the second extension was granted in his presence and when the chargesheet was subsequently filed within the period of extension.

Justice Shah relied upon the Constitution Bench judgment in Sanjay Dutt v. State through CBI, Bombay, in which it was laid down that a notice to the accused is not required to be given by the designated court before it grants any extension for completing the investigation, meaning thereby the accused is to be kept present before the Court when it grants any extension for completing the investigation.

On this basis, the Court held that the appellant-accused in the case is not entitled to the relief of statutory/default bail.

23. High Courts should show judicial restraint in interfering with tender process of foreign-funded Mega Projects

Case Title: National High Speed Rail Corporation Limited v. Montecarlo Limited and Another

In this case, the Supreme Court held that while entertaining writ petitions challenging the tender process or the award of contract with respect to mega projects funded by foreign countries, High Courts ought to bear in mind the principles of judicial restraint.

Justice Shah set aside a judgment of the Delhi High Court which had directed the National High Speed Rail Corporation Limited (NHSRCL) to consider the bid of infrastructure company Montecarlo Limited for construction and development of a depot in relation to the Mumbai-Ahmedabad bullet train project.

Calling the project as of 'national importance', the Court held that the High Court ought to have appreciated that the Bullet Train Project is a result of long-drawn deliberations between the Government of India and the Government of Japan.

24. Supreme Court upholds imposition of GST on lottery sales

Case Title: Skill Lotto Solutions v. Union of India

In this case, a three-judge Bench of the Supreme Court upheld the imposition of Goods and Services Tax (GST) on sale of lotteries.

The Bench ruled that the Central Goods and Services Tax Act, 2017 and the notifications issued under the same bringing lottery and gambling under GST net are valid.

The Centre had imposed GST of 12 percent on sale of lotteries within the same state and 28 percent if they were sold in other states.

25. 2015 amendment to Arbitration and Conciliation Act 1996 can be applied retrospectively

Case Title: Ellora Paper Mills Ltd v. State of Madhya Pradesh

The Court ruled that even arbitration tribunals constituted before the 2015 amendment to the 1996 Act will lose their mandate if members share a prior relationship with either party.

Justice Shah, who authored the decision, clarified that Section 12(5). which states that the tribunal shall lose mandate if its members share a prior relationship with either party, shall be applicable to arbitral tribunals constituted before the 2015 amendment.

Other important orders/observations by Justice Shah

1. Supreme Court sets aside Bombay HC order acquitting GN Saibaba in Maoist links case

Case Title: State of Maharashtra v. Mahesh Kariman Tirki and Others

The Court set aside a Bombay High Court judgment that had acquitted former Delhi University teacher GN Saibaba in an alleged Maoist links case.

Justice Shah had previously held a special hearing on a Saturday to suspend the High Court's decision to acquit Saibaba.

Pertinently, the top court suggested that the case be heard by another bench of the High Court, since the previous bench had already formed an opinion on the question of sanction being needed.

2. Period of emergency parole granted during COVID-19 will not be part of actual sentence

Case Title: Anil Kumar v. State of Haryana and Others

In this case, the Supreme Court dismissed an application by a convict seeking consideration of parole granted during the COVID-19 pandemic to be counted as part of his actual sentence since the same was involuntary.

Justice Shah, who authored the decision, said that in a recent decision, the Court had held that for the purpose of considering actual imprisonment, this period of parole is to be excluded.

A Bench headed by Justice Shah had previously upheld a Bombay High Court order that ruled that periods of parole availed by a prisoner cannot be counted as part of the duration of sentence while considering the minimum imprisonment of 14 years required for premature release from prison under the 2006 Goa Prison Rules.

3. [COVID-19] Supreme Court sets up National Task Force to streamline oxygen allocation, ensure availability of essential drugs, medicines

Case Title: Union of India v. Rakesh Malhotra and Others

In this case, the Court set up a twelve-member National Task Force (NTF) to facilitate a public health response to COVID-19 based on scientific and specialised domain knowledge.

The Bench ordered that the Task Force, which has medical experts and doctors from across the country as its members, will have the Cabinet Secretary to the Union government as its convenor.

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