The Supreme Court fortnightly: 15 important judgments from May 1 to 15, 2023

In this fortnightly series, we capture 15 important judgments delivered by the Supreme Court of India in the past two weeks.
Top 15 Judgments
Top 15 Judgments

In this series, Bar & Bench brings you the top 15 judgments and orders delivered by the Supreme Court of India every two weeks.

Below are our picks for the first two weeks of May 2023.

1. Supreme Court can grant divorce using Article 142 powers on irretrievable breakdown of marriage

Case Title: Shilpa Sailesh v. Varun Sreenivasan

In this case, a Constitution Bench of Justices Sanjay Kishan KaulSanjiv KhannaAbhay S OkaVikram Nath and JK Maheshwari held that the Court exercise its plenary powers under Article 142 of the Constitution to grant a decree of divorce to consenting parties, in cases of irretrievable breakdown of marriage.

The Court held that the six-month period prescribed under the Hindu Marriage Act can be dispensed with.

"Article 142 must be considered in light of the fundamental public policy. It should not contravene a non-derogable function of the Constitution. Court under the power is empowered to do complete justice," the Bench said while reading the operative part of the judgment.

Pertinently, the Court said that divorces can be granted through such a route even when one of the parties opposes such a decree.

The Bench, however, upheld precedents that said that higher courts could not be moved directly by the parties for dissolution of marriage.

2. Chargesheet not having authority's valid sanction no ground for grant of default bail under Section 167 CrPC: Supreme Court

Case Title: Jasbir Singh v. National Investigation Agency

In this case, a Bench of Chief Justice of India (CJI) DY Chandrachud and Justice JB Pardiwala held that an accused is not entitled to default bail under Section 167(2) of the Code of Criminal Procedure (CrPC) on the ground that the chargesheet filed within the time period does not have valid sanction of authority.

The Court held that whether sanction is required or not is to be considered during the stage of taking cognizance of the offence, and it cannot be said that taking sanction from an authority is part of the prosecution process.

Hence, it found no merit in the argument that chargesheet without sanction is not a valid chargesheet.

3. State can undertake fact-finding exercise, form SIT to probe corruption by previous government: Supreme Court

Case Title: State of Andhra Pradesh and Another v. Varla Ramaiah, Etc

In this case, a Bench of Justices MR Shah and MM Sundresh set aside an Andhra Pradesh High Court order which stayed a Special Investigation Team (SIT) probe order by the State government into allegations of corruption against members of the former government including Telugu Desam Party (TDP) leader, Varla Ramaiah.

It was held that state governments can undertake such probes and the same cannot be said to be overturning the decision of the previous government.

4. Delhi government has control over IAS, all services in Delhi except land, police and law and order: Supreme Court

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

A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices MR ShahKrishna MurariHima Kohli and PS Narasimha 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 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 Court held.

The 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 Bench opined.

5. Maharashtra Politics: Shinde to continue as CM though Governor was wrong to conclude Uddhav Thackeray had lost majority, says Supreme Court

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

A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices MR ShahKrishna MurariHima Kohli and PS Narasimha held that the decision of former Maharashtra Governor Bhagat Singh Koshyari to call for a floor test based on the request of 34 MLAs of the Eknath Shinde faction was incorrect. It opined 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 Court held 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.

"Even if it is assumed that MLAs wanted to leave the government, it was only dissatisfaction portrayed. Floor test cannot be used as a medium to solve a intra party difference or inter party differences. There is a difference between a party not supporting government and members of some political party being unhappy," the Court said.

6. Senior Designations: Supreme Court upholds interview criteria but reduces points for publications; secret ballot voting should be exception

Case Title: Indira Jaising v. Supreme Court of India

In this case, a three-judge Bench of Justices Sanjay Kishan Kaul, Ahsanuddin Amanullah and Aravind Kumar upheld the interview criteria followed by High Courts and the Supreme Court for designating lawyers as Senior Advocates, but reduced the points given for the number of publications.

The Court also ruled that voting by judges for conferring the gown should not be by secret ballot, except in exceptional circumstances.

"It has resulted in exclusion of names from final lists. It is an honour to be conferred. Comments by a judge can have deleterious effects, voting by secret ballot has to be exception not rule, with reasons stated. It will be difficult to assign cutoffs," the order said.

The Court said 15 points for publications was too high, and reduced the same to 5. It further stated that academic research and writing ability can be considered by the committee concerned.

7. 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 Justices MR Shah and Justice CT Ravikumar stayed the decision of the Gujarat High Court and the subsequent State government notification to promote 68 judicial officers to the post of district judges based on the seniority-cum-merit rule i.e. where seniority is given preference over merit.

The Court 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 anyways make it even if the promotion was based on merits.

8. Supreme Court dismayed at lack of implementation of POSH Act; orders Central, State government to ensure ICCs are constituted

Case Title: Aureliano Fernandes v. State of Goa and Others

In this case, a Bench of Justices AS Bopanna and Hima Kohli took strong exception to the fact that even a decade after the enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 (POSH Act), there remained serious lapses in its effective enforcement.

The Court underlined that all state functionaries, public authorities, private undertakings, organizations and institutions are duty-bound to implement the POSH Act in letter and spirit.

Thus, it asked the Central and state governments to take affirmative action and ensure that the object behind enacting the POSH Act is achieved in real terms.

9. Supreme Court gives split verdict on whether doctrine of legitimate expectation applies to tax exemptions

Case Title: KB Tea Product Pvt Ltd and Another v. Commercial Tax Officer, Siliguri and Others

In this case, a Division Bench of Justices MR Shah and Krishna Murari delivered a split verdict on the issue of whether amendments to tax exemption statutes can be challenged based on the doctrine of legitimate expectation.

Justice Murari opined that the doctrine would apply when industrial units are set up with the allurement of tax exemption for a specific period.

Justice Shah, however, held that the same does not apply against statutes.

Nevertheless, the judges agreed on the point of firms not having a vested right to claim tax exemptions.

10. Not everything said by a judge while pronouncing judgment constitutes precedent

Case Title: Career Institute Educational Society v. Om Shree Thakurji Educational Society

A Bench of Justices Sanjiv Khanna and MM Sundresh observed that not everything said by a judge when pronouncing a judgment constitutes a precedent.

"It is not everything said by a judge when giving judgment that constitutes a precedent. The only thing in a judge's decision binding as a legal precedent is the principle upon which the case is decided, and for this reason, it is important to analyse a decision and isolate from it the obiter dicta," the Court observed.

The Bench noted that although there are many judgments on the distinction between ratio decidendi and obiter dicta, two verdicts hold the field, namely, State of Gujarat v Utility Users’ Welfare Association and Jayant Verma v Union of India.

11. 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, a Division Bench of Justices MR Shah and MM Sundresh 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.

The Court 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.

It 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.

12. Supreme Court upholds election of DMK leader Kanimozhi Karunanidhi from Thoothukudi in 2019 Lok Sabha polls

Case Title: Kanimozhi Karunanidhi v. A Santhana Kumar

Justices Ajay Rastogi and Bela M Trivedi upheld the election of Dravida Munnetra Kazhagam (DMK) leader Kanimozhi Karunanidhi in the 2019 general elections from the Thoothukudi Lok Sabha constituency.

13. Supreme Court upholds validity of Section 327(7) of Companies Act

Case Title: Moser Baer Karamchari Union v. Union of India and Others

In this case, a Division Bench of Justices MR Shah and Sanjiv Khanna rejected a challenge to the constitutional validity of provisions of the Companies Act that exclude statutory claims of workers' dues when a firm is undergoing the insolvency process.

The Court opined that any unpaid dues of workers are 'adequately and significantly protected' in terms of the waterfall mechanism prescribed by Section 53 of the Insolvency and Bankruptcy Code (IBC).

Pertinently, the Court said that in such matters, the government had to be given leeway, and some sacrifices will result.

14. Supreme Court upholds validity of Tamil Nadu Highways Act

Case Title: CS Gopalakrishnan etc v. State of Tamil Nadu and Others

A Bench of Justices Dinesh Maheshwari and PV Sanjay Kumar upheld the validity of the Tamil Nadu Highways Act, stating that the Act cannot be struck down on the ground that its provisions discriminate or are arbitrary when compared with the provisions of the Central law - the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LA Act 2013).

The Court said that a State law could be contrary to the Central law but would stand protected under Article 254(2) after it receives the assent of the President of India.

Hence, merely because there is discrimination between the two statutes would not be ground to invalidate the State law, the Bench ruled.

15. Credit note issued by automobile manufacturer to dealer, in consideration of replacement of defective part, attracts sales tax: Supreme Court

Case Title: M/S Tata Motors Limited v. Deputy Commissioner of Commercial Taxes (SPL) and Another

A three-judge Bench of Justices KM Joseph, BV Nagarathna and Ahsanuddin Amanullah ruled that a credit note issued by an automobile manufacturer to a dealer of automobiles, in consideration of the replacement of a defective part done by the dealer pursuant to a warranty agreement, attracts sales tax.

The Court held that when a dealer replaces a defective part of the automobile by a spare part maintained in its stock or when the same is purchased by the dealer from the open market, the credit note issued in the name of the dealer is a valuable consideration for transfer of property in the spare part made by the dealer to the customer.

Therefore, the Court said that the same constitutes a “sale” under both the Central Sales Tax Act as well as the respective sales tax legislations of the States under consideration and accordingly the assessee-dealers are liable to pay sales tax on the said transaction.

Other important orders/observations

1. Beant Singh assassination: Supreme Court refuses to commute death penalty of Balwant Singh Rajoana; leaves it to government

Case Title: Balwant Singh v. Union of India

A three-judge Bench of Justices BR GavaiVikram Nath and Sanjay Karol refused to commute the death penalty handed to Balwant Singh Rajoana, who was convicted for the assassination of former Punjab Chief Minister Beant Singh.

The Court instead left it to the Central government's competent authority to deal with the mercy petition filed by Rajoana.

2. The Kerala Story movie has been released elsewhere; West Bengal not different: Supreme Court notice to WB in plea against ban

Case Title: Sunshine Pictures Pvt Ltd and Another v. Union of India

A Division Bench of Chief Justice of India DY Chandrachud and Justice PS Narasimha issued notice in a plea challenging the West Bengal government's decision to ban the screening of the film The Kerala Story.

The Court also sought a reply from the State of Tamil Nadu which, as per the movie makers, has imposed a defacto ban on the film.

The Bench orally remarked that the movie had been released in the rest of the country and West Bengal was not different.

3. Supreme Court stays Allahabad High Court order directing Uttar Pradesh schools to refund/adjust 15% fees paid during COVID-19

Case Title: Lotus Valley International School v. State of Uttar Pradesh and Others

A Division Bench of Justice Sanjiv Khanna and Justice MM Sundresh stayed an Allahabad High Court order directing schools in Uttar Pradesh to refund or adjust 15% of "excess" fees charged during the 2020-21 academic session, when the COVID-19 pandemic forced them to shut, towards fees to be paid in the future.

The High Court had in January directed that fees paid in excess of what was determined by the Supreme Court in its judgment in Indian School, Jodhpur v. State of Rajasthan would be adjustable towards future fees.

4. We are not an institution to sermonise society on morality and ethics; bound by rule of law: Supreme Court

Case Title: Nagarathinam v. State Through Inspector of Police

A Bench of Justices Ajay Rastogi and Ahsanuddin Amanullah reiterated that as a judicial institution, it is not meant to be lecturing society, but rather, it is bound by the rule of law while taking its decisions.

The Court made the observation while granting premature release to a woman who was behind bars for 20 years after being convicted of killing her twin sons by poisoning them following a spat with her paramour.

5. "You can't spread disquiet in stable States": Supreme Court refuses relief to YouTuber Manish Kashyap in fake news case

Case Title: Manish Kashyap @ Tripurari Kumar Tiwari v. Union of India and Others

A three-judge Bench of Chief Justice of India (CJI) DY Chandrachud and Justices PS Narasimha and JB Pardiwala dismissed a plea by YouTuber Manish Kashyap seeking clubbing of First Information Reports (FIRs) and quashing of charges under the National Security Act (NSA) against him for making fake videos of attacks on Bihari migrants.

During the hearing, the Bench also noted that Kashyap had deliberately made fake videos and circulated them to spread disquiet in stable States like Tamil Nadu.

6. 2021 judgment on aspect of ED Director extension seems prima facie incorrect: Supreme Court

Case Title: Dr Jaya Thakur v. Union of India and Others

A Bench of Justices BR GavaiVikram Nath and Sanjay Karol reserved its judgment in a batch of petitions challenging the extension of the tenure of the current Director of the Enforcement Directorate (ED), Sanjay Kumar Mishra.

The Court, however, appeared to question the correctness of its 2021 judgment where it had, in effect, issued a mandamus preventing Mishra from having extensions beyond November 2021.

"Prima facie I hold that it was not rightly decided. Question of extension was not there, as you are arguing. Therefore, mandamus on extensions does not arise. It is my prima facie view that reconsideration is needed, subject to my brothers agreeing. In which way we do not know."

7. Supreme Court objects to Amit Shah, others making public statements on Karnataka Muslim quota when matter is sub-judice

Case Title: L Ghulam Rasool v. State of Karnataka

A three-judge Bench of Justices KM Joseph, BV Nagarathna and Ahsanuddin Amanullah took objection to Union Home Minister Amit Shah and other public functionaries making statements about the scrapping of the 4 per cent reservation for Muslims in Karnataka, since the matter is sub-judice before the apex court.

The Court remarked that public functionaries should exercise caution in their speeches, and not politicise issues that are under consideration by the Court.

Justice Nagarathna then remarked,

"If this is really true, why are such statements being made? There has to be some [control] ... by public functionaries. When matter is sub judice and before this Court, such statements should not be made."

Read the Supreme Court fortnightly - April 16 to 30, 2023 here.

Read the Supreme Court fortnightly - April 1 to 15, 2023 here.

Read the Supreme Court fortnightly - March 15 to 31, 2023 here.

Read the Supreme Court fortnightly - March 1 to 15, 2023 here.

Read the Supreme Court fortnightly - February 15 to 28, 2023 here.

Read the Supreme Court fortnightly - February 1 to 15, 2023 here.

Read the Supreme Court fortnightly - January 15 to 31, 2023 here.

Read the Supreme Court fortnightly - January 1 to 15, 2023 here.

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