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

In this series, Bar & Bench will bring you the top 15 judgments/orders delivered by the Supreme Court of India every two weeks.Below are our picks for the first two weeks of March 2023..1. Supreme Court calls for committee including PM, Chief Justice of India, Leader of Opposition to appoint Election CommissionersCase Title: Anoop Baranwal v. Union of India and OthersA Constitution Bench of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar held that the appointment of members of the Election Commission of India (ECI) should be done on the advice of a committee comprising the Prime Minister, the Chief Justice of India and the Leader of Opposition (or the leader of single largest opposition party) in the Lok Sabha.The Court said that this would be the setup until the Central government comes up with a law on appointments. It said,It asked the Central government to consider establishing a permanent secretariat for the ECI and also that its expenditure is charged to the Consolidated Fund of India, so that the poll body can be truly independent.It was emphasized that the ECI has to be independent and act as per the Constitutional framework."Riding on the horse of independence, it cannot act in an unfair manner either. Independence must be related, finally, to the question of ‘what is right and what is wrong. A person, who is weak kneed before the powers that be, cannot be appointed as an Election Commissioner. A person, who is in a state of obligation or feels indebted to the one who appointed him, fails the nation and can have no place in the conduct of elections, forming the very foundation of the democracy. An independent person cannot be biased."In the judgment pronounced by Justice Joseph, the Court noted that there is huge surge in the role of money power and criminalization of politics, and that a large section of the media has abdicated its role and become partisan.Justice Rastogi added that the removal of Chief Election Commissioner should be similar to that of a judge of the Supreme Court. Further, removal of Election Commissioners would be made only on the recommendation of the Chief Election Commissioner..2. Hindenburg report on Adani: Supreme Court orders probe by expert committee headed by former judge Justice AM SapreCase Title: Vishal Tiwari v. Union of India and OthersA three-judge Bench of Chief Justice of India (CJI) DY Chandrachud and Justices PS Narasimha and JB Pardiwala formed a committee headed by retired apex court judge, Justice AM Sapre to examine the controversy surrounding the Hindenburg Research report on the Adani Group of companies.Besides Justice Sapre, the committee will also comprise OP Bhat, Justice JP Devdhar, KV Kamath, Nandan Nilekani and Somasekhar Sundaresan.The committee will examine the following aspects:1. To undertake an overall assessment of the situation, including the causal factors which have led to the volatility in the securities market in the recent past;2. Measures to strengthen investor awareness;3. Investigate whether there has been a regulatory failure in dealing with the alleged contravention of laws pertaining to the securities market in relation to the Adani group or other companies;4. Suggest measures to strengthen the statutory and regulatory framework and secure compliance with existing framework concerning the protection of investors.The committee shall submit its report in a sealed cover before the Supreme Court within two months.The Court also noted that the Securities and Exchange Board of India (SEBI) is already examining the matter and it shall also continue its probe.It, however, directed that as part of the probe, SEBI shall also look into whether there was violation Rule 19A (related to maintenance of minimum public shareholding) of Securities (Contract) Regulation Rules, whether there has been a failure to disclose transactions with related parties and other information that concerns related parties and whether there was any manipulation of stock prices.The SEBI shall apprise the Court of its progress also inform the expert committee of the same. The Court also clarified that constituting the committee will not hamper the independence of SEBI and its processes..3. Corruption has become a way of life; botched investigations in these cases are more distressing: Supreme CourtCase Title: State of Chhattisgarh v. Aman Kumar SinghA Bench of Justices S Ravindra Bhat and Dipankar Datta lamented the pervasive corruption that has regrettably become a way of life, and is preventing equal distribution of wealth in India.The Court made the observations while setting aside a judgment of the Chhattisgarh High Court which quashed a First Information Report (FIR) against an Indian Revenue Service (IRS) officer and former State government consultant."Corruption is a malaise, the presence of which is all pervading in every walk of life. It is not now limited to the spheres of activities of governance; regrettably, responsible citizens say it has become a way of one’s life. Indeed, it is a matter of disgrace for the entire community that not only on the one hand is there a steady decline in steadfastly pursuing the lofty ideals which the founding fathers of our Constitution had in mind, degradation of moral values in society is rapidly on the rise on the other," the judgment stated.The Court went on to note that what was more distressing were the inquiries that follow common outbreaks of scams. More often than not, these are botched and assume the proportion of bigger scams than the scams themselves, it added.It offered a solution on how governments can enable investigating agencies to crack down on corruption more efficiently."To weed out corrupt public servants, the Government has to engage sincere and dedicated personnel for collecting and collating the necessary material in this regard. If there be no interventions, the investigation that is likely to follow in terms of the Cr.P.C., could enable the investigating officer to collect and collate the entire evidence establishing the essential links between the public servant and the property or pecuniary resources in dispute. Since snapping of any link in the chain of circumstances could prove fatal to the whole exercise, it is of utmost necessity that care and dexterity are not compromised.".4. Supreme Court sets aside death sentence of rape and murder convict found to be juvenile at the time of offenceCase Title: Karan v. State of Madhya PradeshA three-judge Bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol set aside the death sentence of a rape and murder accused who was found to be a juvenile at the time of the crime.The Court upheld the conviction but set aside the sentence based on a report of an Additional Sessions Judge which categorically stated that the accused was 15 years and 4 months of age on the date of the incident, which was December 15, 2017.The Court noted that as per the Juvenile Justice Act, even in case of heinous offences, a minor below 16 years of age cannot be sentenced to more than 3 years in prison.It was held that the Juvenile Justice Act intends to benefit minors only with respect to a lenient sentence so as to bring him into the mainstream of the society, and not to make the conviction ineffective." ... a trial conducted and conviction recorded by the Sessions Court would not be held to be vitiated in law even though subsequently the person tried has been held to be a child. The intention of the legislature was to give benefit to a person who is declared to be a child on the date of the offence only with respect to its sentence part", the Court observed.Hence, if the Juvenile Justice Board (JJB) fails to conduct inquiry with respect to the age of the accused, the trial and conviction would not stand vitiated..5. There cannot be school without playground; students entitled to good environment: Supreme CourtCase Title: State of Haryana and Others v. Satpal and OthersA Division Bench of Justices MR Shah and BV Nagarathna highlighted the need for schools to have playgrounds and for students to have a good environment.The Court took note of this aspect while calling for the removal of encroachments from certain land earmarked for a school playground. It was found that on account of such encroachment, a school adjacent to the land had no playground at all. The Bench proceeded to remark,"There cannot be any school without playground. Even the students, who study in such a school are entitled to a good environment."Hence, any unauthorized possession of land meant for playgrounds, cannot be directed to be legalized, the Court added..6. Applications for compassionate appointment should be processed without delay: Supreme CourtCase Title: State of West Bengal v. Debabrata Tiwari and OthersA Division Bench of Justices Krishna Murari and BV Nagarathna expressed concerns over the apparent uncertainty and delay involved in the implementation of compassionate appointment schemes by the West Bengal government.The Court observed that such a state of affairs may have ultimately prejudiced families of several government employees dying in harness."Much uncertainty looms around the scope, extent and beneficiaries of the various schemes formulated by the State for governing compassionate appointment and therefore, the concerned authorities are unable/unwilling to positively decide claims for compassionate appointment," the Court added.The Court further remarked that such delays would frustrate the object of such schemes and called on the authorities to deal with claims for compassionate appointment with a sense of immediacy..7. Power under Section 319 CrPC to summon additional accused should be exercised only when strong evidence exists: Supreme CourtCase Title: Vikram Rathi v. State of Uttar Pradesh and AnotherA Division Bench of Justices Abhay S Oka and Rajesh Bindal held that power to summon an additional accused under Section 319 of the Code of Criminal Procedure (CrPC) is a discretionary and that the same should be exercised only sparingly and when strong and cogent evidence exists against such person.The Court held that mere suspicion cannot be the basis to summon an additional accused."It is not mere suspicion on the basis of which an additional accused could be summoned. Only where strong and cogent evidence is available against a person from the evidence produced before the court, which could lead to his conviction, that such a power could be exercised," the judgment said.The power under Section 319 CrPC cannot be exercised in a casual and cavalier manner, the Bench added."The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the Court should refrain from exercising power under Section 319 CrPC," the Court said..8. Bhopal Gas Tragedy: Supreme Court rejects Central government's curative petition for enhancement of compensationCase Title: Union of India v. Union Carbide CorporationA Constitution Bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari rejected a curative petition filed by the Central government seeking additional compensation to be paid by American chemical company Union Carbide Corporation (UCC) to the victims of the 1984 Bhopal gas tragedy.The Court said that imposing greater liability on Union Carbide Corporation is not warranted and that reopening the issue will only open a Pandora's Box and will be detrimental to the claimants."The method to impose greater liability on Union Carbide Corporation is not warranted. We are disappointed in the Union for not having addressed this. Nearly 6 times compensation has been disbursed to the victims compared to the pro rata. Centre to use ₹50 crores lying with RBI to address the needs of the claimants in the Bhopal gas tragedy case. If it is reopened, then it will only work in favour of UCC by opening a pandora's box and will be to the detriment of the claimants," the Court said.The pleas, including those of survivors/victims' organisations, sought enhancement of compensation for deaths and injuries caused by the 1984 tragedy..9. Supreme Court empowers High Powered Committee to oversee transfer of wild animals for rescue, rehabilitation pan-IndiaCase Title: Muruly MS v. The State of Karnataka and OthersA Bench of Justices Krishna Murari and Ahsanuddin Amanullah ordered that the committee earlier constituted to oversee the transfer of captive wild elephants from the North-Eastern states, will now have a wider responsibility and will cater to all wild animals in need of rehabilitation or rescue anywhere in India.Towards this end, the top court extended the jurisdiction of the High Powered Committee (HPC) headed by retired Supreme Court judge, Justice Deepak Verma, which was constituted by the Tripura High Court in 2022.The Court opined that this directive would serve 'real public interest' and would advance the cause of welfare, care and rehabilitation of wild animals."Though the scope and jurisdiction of the High Powered Committee was limited by the High Court to transfer of the elephants from Northeast part of the country to the elephant camp of respondent no. 3, we see no reason not to extend it to Pan India, particularly, when by extending the jurisdiction of High Powered Committee at Pan India level will not only serve the real public interest and would advance the cause of welfare, care and rehabilitation of wild animals, but will also curb the filing of frivolous PILs before different High Courts by busy bees," the judgment stated.The Court also modified the constitution of this committee to include the Chief Wildlife Wardens of all states as members."The said Committee may also consider the request for approval, dispute or grievance, concerning transfer or import into India or procurement or welfare of wild animals by any rescue or rehabilitation centre or zoo, by taking assistance and co-operation whenever needed from all departments and authorities across India," the order said..10. Conviction based solely on testimony of interested witnesses without corroboration unsustainable: Supreme CourtCase Title: Nand Lal v. State of ChhattisgarhA three-judge Bench of Justices BR Gavai, Vikram Nath and Sanjay Karol held that conviction of an accused purely based on the oral testimony of interested witnesses, without sufficient corroboration, would not be sustainable.The Court made the observation while setting aside a judgment of the Chhattisgarh High Court which upheld the conviction and sentence of life imprisonment given to three appellants along with other accused for the offence of murder.The appellants, along with others, were accused of entering the house of the deceased armed with deadly weapons, having formed an unlawful assembly and assaulting him, which led to his death.While examining the issues, the Bench said that in cases where evidence from witnesses is partly reliable and partly unreliable, the Court is required to be circumspect and separate the chaff from the grain to seek further corroboration from reliable testimony..11. Will cannot be presumed to be genuine under Section 90 of Indian Evidence Act merely because it is more than 30 years old: Supreme CourtCase Title: Ashutosh Samanta (D) by LRs and Others v. SM. Ranjan Bala Dasi and OthersA Bench of Justices S Ravindra Bhat and Hima Kohli held that the presumption under Section 90 of the Indian Evidence Act with regard to the genuineness and regularity of documents which are more than 30 years old, is inapplicable when it comes to a will.The Court was of the view that the genuineness of the will has to be proved in terms of Sections 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act."Wills cannot be proved only on the basis of their age – the presumption under Section 90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to proof of wills, which have to be proved in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872," the Court stated while relying on its earlier decision in MB Ramesh (D) by LRs v. KM Veeraje Urs (D) by LRs and Others (2013).If attesting witnesses may have died or cannot be found, the propounder is not helpless since Section 69 of the Evidence Act would be applicable, the Court further said..12. Cheque bouncing cases not akin to civil proceedings; IBC process does not extinguish criminal case: Supreme CourtCase Title: Ajay Kumar Radheshyam Goenka v. Tourism Finance Corporation of India LimitedA three-judge Bench of Justices Sanjay Kishan Kaul, Abhay S Oka and JB Pardiwala held that the initiation of the insolvency process to recover a debt would not absolve accused from criminal liability in cheque dishonour cases.The Court made it clear that proceedings under Section 138 of the Negotiable Instruments (NI) Act are not recovery or suit proceedings, but penal in character."We are unable to accept the plea that Section 138 of the N.I. Act proceedings are primarily compensatory in nature and that the punitive element is incorporated only at enforcing the compensatory proceedings. The criminal liability and the fines are built on the principle of not honouring a negotiable instrument, which affects trade. This is apart from the principle of financial liability per se. To say that under a scheme which may be approved, a part amount will be recovered or if there is no scheme a person may stand in a queue to recover debt would absolve the consequences under Section 138 of the N.I. Act, is unacceptable," the majority opinion stated.Accordingly, the Court upheld a Delhi High Court order that had refused to set aside a magistrate order rejecting the discharge application of the present appellant in a ₹30 crore default case.The Bench said it could not accept the contention that if proceedings against the company under the Insolvency and Bankruptcy Code (IBC) come to an end, then a managing director cannot be proceeded against in the criminal case.The Court at the outset noted that scope of proceedings under the two Acts were quite different and do not intercede each other." ... a bare reading of Section 14 of the IBC would make it clear that the nature of proceedings which have to be kept in abeyance do not include criminal proceedings, which is the nature of proceedings under Section 138 of the N.I. Act. We are unable to appreciate the plea of the learned counsel for the Appellant that because Section 138 of the N.I. Act proceedings arise from a default in financial debt, the proceedings under Section 138 should be taken as akin to civil proceedings rather than criminal proceedings.".13. Mere breach of contract cannot give rise to criminal case for cheating: Supreme CourtCase Title: Sarabjit Kaur v. State of Punjab and AnotherA Bench of Justices Abhay S Oka and Rajesh Bindal held that mere breach of contract does not give rise to criminal prosecution for cheating unless a fraudulent or dishonest intention was present right from the beginning of the transaction.The Court was of the view that merely on the allegation of failure to keep a promise, criminal proceedings cannot be initiated."A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings," the Court said.The Court also cautioned against using criminal cases to pressurise parties to settle civil disputes..14. Supreme Court upholds striking down of Rules requiring 20 years experience to be state consumer forum memberCase Title: Secretary Ministry of Consumer Affairs v. Dr Mahindra Bhaskar Limaye and OthersA Bench of Justices MR Shah and MM Sundresh paved the way for lawyers and other professionals with ten years of experience in relevant fields to be members of state and district consumer forums.The Court using its plenary powers under Article 142, also deemed that selection for consumer fora will be through two written papers till a law is enacted."Till the suitable amendments are made...in exercise of powers under Article 142 of the Constitution of India and to do complete justice, we direct that in future and hereinafter, a person having bachelor’s degree from a recognized University and who is a person of ability, integrity and standing, and having special knowledge and professional experience of not less than 10 years in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine, shall be treated as qualified for appointment of President and Members of the State Commission," the order stated.Similarly, the Rule requiring 15 years' experience for appointment to district consumer forums was also struck down.The top court at the outset said that the High Court was right in striking down the rules."As per Article 233 of the Constitution, a lawyer needs to have only 7 years of practice as an advocate in High Court. Under the circumstances to provide 20 years’ experience under Rule 3(2)(b) is rightly held to be unconstitutional, arbitrary and violative of the Article 14 of the Constitution of India. We are in complete agreement with the view taken by the High Court."For the written examinations on the basis of which appointments are made to consumer fora, the Court directed that there will be two papers. The first paper would be a two-hour objective-type assessment on general knowledge and consumer law. The second would be a three-hour one, involving writing an essay on public affairs or trade and consumer commerce, as well as a case study to test analytical and drafting abilities."The qualifying marks in each paper shall be 50 per cent and there shall be viva voce of 50 marks. Therefore, marks to be allotted out of 250, which shall consist of a written test consisting two papers, each of 100 marks and the 50 marks on the basis of viva voce," the Bench stated..15. Registered Medical Practitioner cannot be prosecuted under Drugs & Cosmetics Act 1940 for storing small quantity of medicines: Supreme CourtCase Title: S Athilakshmi v. State represented by the Drug InspectorA Division Bench of Justices Krishna Murari and Sudhanshu Dhulia held that registered medical practitioners cannot be prosecuted under the Drugs and Cosmetics Act 1940 for storing small quantities of medicines.The Court was of the view that when small quantities of medicines have been found on the premises of a registered medical practitioner, it would not amount to selling their medicines across the counter in an open shop."Considering the small quantity of medicines, most of which are in the category of lotions and ointments, it cannot be said by any stretch of imagination that such medicines could be ‘stocked’ for sale and would come in the category of stocking of medicines for the purpose of sale," the Court observed while quashing a case against a doctor under the 1940 Act.In this regard, the Court referred to Schedule (K) 7 appended to the Drugs and Cosmetics Rules, 1945, which exempts certain drugs from the provisions of Chapter IV of the Act (which includes both Section 18 and Section 27 referred above, which are penal provisions). .1. Only 10% seats in higher judiciary can be filled up by departmental competitive examination: Supreme CourtCase Title: Rajendra Kumar Shrivas v. State of Madhya Pradesh and OthersA Bench of Justices MR Shah and CT Ravikumar directed the Madhya Pradesh High Court to comply with its directions issued in the case of All India Judges’ Association and Others v. Union of India as per which High Courts, while filling up posts in the higher judiciary, can reserve only 10 per cent seats to be filled up by departmental competitive examination.The Court also directed the High Court to examine if the 10 per cent quota was breached in any recruitment subsequent to January 1, 2011, and if such breach has occurred, to adjust such posts in future recruitments.It further directed in that judgment that if candidates are not available for 10 per cent seats, or are not able to qualify in the examination, then vacant posts are to be filled up by regular promotion in accordance with the service rules applicable..2. Only Chief Justice of India can reassign cases, not puisne judges: Supreme CourtCase Title: Orris Infrastrcuture Private Limited v. Manoj Aggarwal and OthersA Bench of Justices BR Gavai and Vikram Nath reaffirmed that only the Chief Justice of India (CJI) can list cases before different benches of the Supreme Court or reassign them.The Court made the remark after it was miffed by a case being listed before it by another bench of Justices MR Shah and CT Ravikumar."Puisne judges cannot re-assign matters. It is only possible by the Hon'ble Chief Justice of India," the Bench said.The Bench of Justices Shah and Ravikumar had on February 27 ordered that the matter in question should be heard by the Justice Gavai-led Bench, possibly since a Bench of Justices Gavai and Ravikumar had last heard the matter even though no effective order was passed on that date..3. Supreme Court directs NLU Consortium to publish CLAT scribe guidelines in advance; make reasonable accommodation for PwD candidatesCase Title: Arnab Roy v. Consortium of NLUs and AnotherA three-judge Bench of Chief Justice of India DY Chandrachud and Justices PS Narasimha and JB Pardiwala directed the Consortium of National Law Universities (NLUs) to publish guidelines for facilities extended to persons with disabilities appearing in the Common Law Admission Test (CLAT), by the time this year's exam is notified.The Court noted that the Consortium can modify such guidelines in the future so as to preserve the integrity of the examination."We direct that for the future guidelines which will be applicable to PwD [Persons-with-disabilities] candidates should be in public domain much earlier, during advertisement of the exam, and reasonable accommodation can be made available to them to ensure they are not left in uncertainty...The nature and content of the guidelines cannot be frozen for the future and the Consortium is at liberty to modify the guidelines keeping in mind the evolving nature of rights of the PwD candidates, and in case of any more difficulty consortium may be approached for remedies," the Court stated.On the qualification norms for the scribes, the Bench observed that the same was needed to maintain the integrity of the examination process."It would not be appropriate to ignore the genuine concerns which have been set up on behalf of Consortium to maintain integrity of the exam process. It is from this perspective the Consortium has in its guidelines required that scribes should not be above 11th standard, and not be attending a coaching centre. At the highest, a candidate could have a grievance if no such scribe is available...The candidate can bring their own scribe or request the Consortium to provide one, and the same is made available.".4. Supreme Court orders Z+ security across India and abroad for Mukesh Ambani and family; expenses to be borne by AmbanisCase Title: Union of India v. Bikash Saha and OthersA Bench of Justices Krishna Murari and Ahsanuddin Amanullah ordered that industrialist Mukesh Ambani and his four immediate family members be provided Z+ security cover across the country and abroad, and directed the State of Maharashtra and the Union Home Ministry to ensure that the same is done.The Court observed that the existing security cover at the family's expense cannot be restricted to their state of residence (Maharashtra) if there is a security threat."We are of the considered opinion that if there is a security threat, the security cover provided and that too at own expense of the respondents, cannot be restricted to a particular area or place of stay. Looking into the business activities of the respondent nos. 2 to 6 (Ambani and his family members) within the country as also outside the country, the very purpose of providing security cover would stand frustrated, if the same is restricted to a particular place or area," the Court said.The Court, therefore, directed that highest level security cover is provided to Mukesh Ambani, Neeta Ambani, Akash Ambani, Anant Ambani and Isha Ambani, for which the expenses have to be borne by the Ambani family..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.