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Is Article 32 available against the judiciary?

There is no reference anywhere in the 18 paragraphs of H.M. Seervai’s discussion on the issue to the Constituent Assembly debates which clearly demonstrate that the judiciary is not part of the State under Article 12 of the Indian Constitution.

J. Sai Deepak

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I n the previous piece, this author had demonstrated through application of principles of interpretation and with the aid of Constituent Assembly Debates (CAD) that the Judiciary does not fall within the meaning of “the State” for the purposes of Article 12. This effectively leads to the conclusion that the Judiciary does not have the Constitutional mandate to interfere with fundamental rights on the ground of either constitutional morality or public morality, both not being the same, in the absence of State action. The judiciary’s preserve is limited to examining the constitutional validity of State action when it is challenged either under Articles 32 or 226 for abridgement of fundamental rights. This also means that while the remedies under Articles 32 and 226 are available against the State since the State can interfere with fundamental rights, the same remedy is not available against the Judiciary when it discharges judicial functions. Does this mean that the Judiciary falls within the definition of State when it discharges executive functions in the exercise of its rule-making powers?

H.M. Seervai has discussed the question of whether the Judiciary attracts the definition of “the State” in 18 Paragraphs (Paragraphs 7.99-7.116) in Volume 1 of the Fourth Edition of Constitutional Law of India from Pages 389-399. His basic premise is that if the Judiciary forms part of the State, it must conform to Article 14 of the Constitution which mandates that the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. He has contended that since the language of Article 14 has been largely borrowed from the 14th Amendment to the US Constitution, one must consider whether the Judiciary forms part of the State under US law. To make his case, Seervai has cited a textbook on the US Constitution published by the US Congress wherein it has been stated as follows: “A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way…”

Surprisingly, while Seervai has referred to a textbook issued by the US Congress to support his position that the Judiciary forms part of the State, he did not refer to any judgement of the US Supreme Court to make good this position. In any case, primacy must be given to Indian legislative history. Independent of the history of the US Constitution, the second limb of Seervai’s argument is based on his reliance on the inclusive nature of the definition of State under Article 12 to claim that it does not exclude the Judiciary.

However, an inclusive definition too has its own rules of interpretation which, in this case, do not help Seervai’s argument since the absence of any express reference to an important organ such as the Judiciary, despite express references to the Legislature and the Executive at the Union and the State levels, in Article 12 speaks volumes of the legislative intent.

Interestingly, there is no reference anywhere in the 18 Paragraphs of his discussion on the issue to the Constituent Assembly Debates which clearly demonstrate that the Judiciary is not part of the State under Article 12 of the Indian Constitution. After all, one of the rules of interpretation is that if there is ambiguity in a provision and the internal aids of interpretation do not put the ambiguity to rest, reference may be had to external aids such as the history of the provision, in particular legislative debates. The Constituent Assembly Debate of November 25, 1948, which this author had discussed in detail in his previous piece, finds no mention in Seervai’s analysis on the topic. Even the footnotes do not remotely refer to the CAD.

The third limb of Seervai’s argument is that if the highest Court of the land delivers a judgement which violates Article 14, an affected party would be without remedy to challenge the outcome invoking Article 32 if the Judiciary were not to be treated as State under Article 12. To justify this concern, Seervai has quoted the following passage by Justice Frankfurter in Snowden v. Hughes, a judgement delivered by the US Supreme Court in 1944 on the 14th Amendment to the US Constitution:

“And if the highest Court of a State should candidly deny to one litigant a rule of law which it concededly would apply to all other litigants in similar situation, could it escape condemnation as an unjust discrimination and therefore a denial of the equal protection of the laws?”

To answer this question, Seervai has referred to the judgement of a nine-Judge Bench of the Indian Supreme Court delivered in Naresh Shridhar Mirajkar v. State of Maharashtra (1966) wherein eight of the nine Judges held that a judicial order is not open to challenge under Article 32. Only Justice Hidayatullah, in his dissenting judgement, takes a contrary view, which is endorsed by Seervai.

However, the fact remains, that the law laid down by the majority is that a judicial order is not capable of being challenged under Article 32. In fact, in the very same Mirajkar judgement, a reference has been made to a previous decision of a Constitution Bench of the Supreme Court in Premchand Garg v. Exercise Commissioner, U.P (1963) wherein a rule made by the Supreme Court exercising its rule-making power under Article 145 was the subject of a writ petition under Article 32. The fact that this judgement only proves that the exercise of a rule-making power by the Judiciary constitutes a non-judicial action which is capable of being challenged under Article 32, is not lost on either Seervai or Justice Hidayatullah in the Mirajkar case. In fact, they acknowledge this important distinction. And yet, Seervai’s position and that of Justice Hidayatullah is based on a normative approach to Article 32 as opposed to a strictly legal approach which is consistent with legislative history.

Critically, the position in Mirajkar has been followed inA.R.Antulay vs. R.S. Nayak and another (1988), Smt. Triveniben vs. State of Gujarat (1989), Ajit Kumar Barat vs. Secretary, Indian Tea Association and others, and Rupa Ashok Hurra vs Ashok Hurra & Anr (2002), making it abundantly clear that the law as it stands does not treat judiciary in exercise of judicial powers as State, and therefore does not permit a challenge under Article 32 to judicial verdicts.

What is even more pertinent is that in the Antulay Judgement as well as in the Rupa Judgement, the Supreme Court has addressed the specific concern raised by Seervai. The Court has held that in the event the verdict of the highest Court of the land suffers from any form of infirmity or errors, the power of review under Article 137 has been expressly provided by the Constitution to precisely address such exigencies. In other words, Article 32 need not be invoked against judicial orders when the power of review under Article 137 is available. In Rupa, the Supreme Court drew attention to the fact that the width of its inherent powers to do justice have been adequately captured by the language of Order XLVII, Rule 6 of the Supreme Court Rules which have been framed in relation to exercise of the power of review under Article 137. Extracted below is the said Rule 6:

“6. Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

Clearly, in view of the above, there is no need or basis to stretch the limits of the definition of State under Article 12 or the scope of remedies available under Article 32 to challenge judicial orders which warrant revisitation. What is noteworthy is that Seervai has not commented on the adequacy or otherwise of the remedy of review under Article 137 in his discussion on whether Article 32 is available against the Judiciary.

What follows from this discussion is that, State action which violates Part III is open to judicial review under Articles 32 and 226, whereas judicial verdicts are subject to appeals, revisions, references, special leave petitions and review petitions, all of which provide a basket of remedies to aggrieved litigants. Assuming that even the outcome in the ultimate remedy before the Supreme Court results in abridgement of fundamental rights, the remedy lies in moving the wheels of the Executive and the Legislature, subject to a few qualifications and riders.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

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Legally Speaking

GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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