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Is judiciary part of the ‘State’ under Article 12?

While there exists a significant amount of debate around this question, the Supreme Court has held that courts are not ‘State’ when they exercise judicial functions, but may attract the definition in the exercise of non-judicial or administrative functions.

J. Sai Deepak

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In the previous piece under this column, this author had expanded on the relationship between constitutional morality, public morality and moral diversity. As part of the said discussion, this author had opined as follows:

Is the Judiciary part of “the State” under Article 12? While there exists a significant amount of debate around this question, the Supreme Court has held that Courts are not “State” when they exercise judicial functions, but may attract the definition in the exercise of non-judicial or administrative functions.

What this means for the discussion at hand is that, for the purposes of imposing reasonable restrictions on fundamental rights available under Articles 19(1)(a), 19(1)(c), 25(1) and 26 citing “public morality” or “public heath” or “public decency” or “public order”, the judiciary does not fall within the definition of State. That power is exclusively available to the Executive and the Legislature, which constitute the State. This position is consistent with the history of the drafting of the Constitution on availability of (a) fundamental rights, and (b) constitutional remedies against the State to enforce fundamental rights through Courts of law either under Articles 32 or 226.”

The fundamental premise behind the above-extracted line of enquiry is that fundamental rights and the remedies to enforce them go hand in hand. This much is agreed upon by scholars of Constitutional law including the legendary H.M. Seervai (refer to Page 391 of Volume 1 of the Fourth Edition of Seervai’s Constitutional Law of India). Therefore, if the Judiciary has the right to abridge fundamental rights on grounds of “public morality” even in the absence of Executive or Legislative action, it must be equally available to an aggrieved party to invoke remedies under Articles 32 or 226 against such judicial action.

Given the implications of this line of enquiry, the question of whether the Judiciary falls within the meaning of “State” under Article 12 warrants a deeper examination based on the history of the drafting of the Constitution. The reason why history becomes relevant is to ascertain the intent of the framers which sheds light on what the position of law is, as opposed to muddling the issue by entering into a subjective enquiry of what the law must be.

Extracted below is Article 12:

Article 12. Definition- In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India, and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of India.”

The following points emerge from the definition, in particular the underscored and emboldened portions:

  1. That the definition is not exhaustive, but inclusive;
  2. However, the framers of the Constitution deemed it fit to expressly mention only the Government and Parliament of India, and the Government and the Legislature of each of the States. The reference to the Union and State Judiciaries is conspicuous by its absence. Despite Chapters of the Constitution being dedicated to the Union and State Judiciaries and the express reference to the Supreme court in Article 32, there is no express reference to any arm of the Judiciary in the definition of State;
  3. Settled principles of legal interpretation require that the words “all local or other authorities” are interpreted in light of the express intention as deciphered from the use of the words preceding them, namely the Government and Parliament of India, and the Government and the Legislature of each of the States. Therefore, it could be fairly argued that the reference to “all local or other authorities” is a reference to local Executive or Legislative bodies, and not to the Judiciary.

Is “local authority” defined in any statute? Yes, Section 3(31) of the General Clauses Act 1897 defines local authorities as follows:

“local authority” shall mean a municipal committee, district board, body of port Commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund.

Clearly, the reference in the above-definition is to a non-judicial body.

Was the meaning and import of “all local or other authorities”, including the definition under the General Clauses Act, specifically discussed in the Constituent Assembly Debates? Yes, on November 25, 1948, this was the specific subject of discussion in the context of an amendment moved by Dr. Ambedkar with reference to Draft Article 7 which would later become Article 12 of the Constitution.

The discussions held on the said date reveal that even when Dr. Ambedkar was asked to shed light on the seemingly vague contours of “all local or other authorities”, the clarification sought was limited to the question of the metes and bounds of “local” in order to understand if even municipal and district authorities would fall within the ambit of State under Article 12. In other words, even the ones who sought such a clarification were not under the impression that the Judiciary was even remotely envisaged as forming part of the State under Article 12.

Sample the following excerpts from the query of one of the members, Shri Mahboob Ali Baig Sahib Bahadur, who sought deletion of “and all local or other authorities within the territory of India or under the control of the Government of India” from Draft Article 7:

Sir, I consider that it is not advisable that an expression in a legislative enactment should bear different meanings in different parts of the enactment. It will create confusion. Therefore, I wish this definition of `state’ has not been entered in this article at all. Further this expression `state’ includes the government of India and its parliament, the governments of the states, i.e., the Provincial states, I think, and its legislature and the local bodies. I know that local authorities have been defined in the General Clauses Act, as District Boards and Municipalities. But I do not know what those `other authorities’ are.

Is there-any necessity for us to include other authorities which are not defined either here or anywhere else? Therefore, Sir, as far as this part of the Constitution is concerned, the State is defined in a manner which is comprehensive of all institutions, whether they are legislative bodies, executive bodies or executive authority or the municipal or district boards or for the matter of that even the co-operative institutions, or according to me, even other authorities, such as the sub-magistrates of a locality. So the word `State’ is used to include a man in authority under the circumstances anywhere. That is too wide a definition of the word `State’. When this definition is given to the same expression used, say for instance in article 13 let us see what is its effect. I may read to you, Sir, sub-clause (2) of article 13. 

“Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law, relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the authority or foundation of the State.”

That means the local body or the executive of a province or even a Sub-Magistrate might pass any order or the local body might pass any bye-law or resolution modifying the Fundamental Right given under sub-clause (a)of clause 1 of article 13.  Now, it may be contended that the expression is “making any law”. Now, let us see whether `law’ has been defined here. Law has not been defined for the entire part, but it has been defined for a certain article – article 8, clause (3). There, it is stated that –

“………..law’ includes any Ordinance order, bye-law,rule, regulation, notification, custom or usage having the force of law in the territory of India or any part thereof.”

But law has not been defined generally, but it has been defined only for the purpose of article 8, to cover any order that is passed, any bye-law; that suits very well here, as we are abrogating all laws which are inconsistent with Fundamental Rights. If any Magistrate or any municipal body passed any law which derogates from the Fundamental Rights, that shall be considered void. So far so good. But has law not been defined for the purpose of Part III? It may be argued from the analogy of the law defined under clause (3) of article 8, that any order or bye-law passed by a local body or order that may be passed by any other authority may be included in the expression `Law’ in Part III. But what that “any other authority” is, has not been defined. Therefore, it may be contended, and very rightly perhaps, that a Magistrate or a local body or even a collector or even a Minister might pass an order, or make a notification abridging the rights that are given under sub-clause (a) of clause (1) of article 13. Therefore, my submission is, especially in the absence of a definition of law, and in the light of the definition of law under clause(3) of article 8, it will not only create confusion, but it might tend to the usurpation of those rights, and to nullify and abridge the fundamental rights given under clause (1).Sir, I am aware that article 7 says, “unless the context otherwise requires,….”.

I know that it might be contended that that expression answers my objection. But my submission is this. It is not only law that is passed by a legislature that is law. What is law, must be made quite clear. Unless that is done, the executive might pass an order, or put out a notification and that too might claim to come under this expression. Otherwise, as far as this part is concerned, there is no place at all for any executive authority to make any law to make anything, say anything or do anything. You have stated in all these places – “Nothing…shall…prevent the State from making any law, imposing in the interests of public order restrictions on the etc. etc.” That clearly shows that a magistrate might pass an order restricting the right of a person or persons to assemble peacefully.

So, when this expression is susceptible of being interpreted as giving authority to a district magistrate, an executive body to abridge the rights given here, with equal weight it maybe contended by a local body or by some other authority – and you have not defined your authority. Therefore, I submit, if it is meant that all the authorities mentioned in this article have got the right to abridge rights, the fundamental rights mentioned in clause (1) of article 13, it might lead to absurd results. As I said, a magistrate or even a petty officer in authority can rightly claim under this article to have the authority to abridge a citizen’s rights. Therefore, my submission is, either this article is unnecessary, or if you really mean that any officer in authority has got right to abridge the fundamental rights, I submit that this clause should not find a place here at all. It leads to confusion.”

The detailed extraction of Shri Baig’s contention is necessary since it demonstrates that even those who were opposed to the language proposed by Dr. Ambedkar for the definition of the State were clear that the reference was only to legislative or executive bodies, but not to the judiciary by any stretch of imagination. This is further corroborated by the response of Dr. Ambedkar to Shri Baig’s query, which is extracted as follows:

The object of the Fundamental Rights is two-fold. First, that every citizen must be in a position to claim those rights. Secondly, they must be binding upon every authority – I shall presently explain what the word “authority” means – upon every authority which has got either the power to make laws or the power to have discretion vested in it. Therefore, it is quite clear that if the Fundamental Rights are to be clear, then they must be binding not only upon the Central Government, they must not only be binding upon the Provincial Government, they must not only be binding upon the Governments established in the Indian States, they must also be binding upon District Local Boards, Municipalities, even village panchayats and taluk boards, in fact, every authority which has been created bylaw and which has got certain power to make laws, to make rules, or make by-laws.  

If that proposition is accepted – and I do not see anyone who cares for Fundamental Rights can object to such a universal obligation being imposed upon every authority created by law – then, what are we to do to make our intention clear? There are two ways of doing it. One way is to use a composite phrase such as “the State”, as we have done in article 7; or, to keep on repeating every time, “the Central Government, the Provincial Government, the State Government, the Municipality, the Local Board, the Port Trust, or any other authority“. It seems to me not only most cumbersome but stupid to keep on repeating this phraseology every time we have to make a reference to some authority. The wisest course is to have this comprehensive phrase and to economies in words. I hope that my friend will now understand why we have used the word “State” in this article and why this article must stand as part of this Constitution.”

Clearly, there is not the slightest of suggestions either in the query of Shri Baig or the response of Dr. Ambedkar that the definition of State in Draft Article 7 (now Article 12) extends to the judiciary. On the basis of this history, it can be reasonably stated that Part III of the Constitution, which deals with fundamental rights and the remedies to enforce them, has been crafted with a view to protect fundamental rights from unreasonable and summary abridgement by legislative and executive bodies of all grades who form the “State”. The role of the judiciary is limited to exercising its power of judicial review under Articles 32 and 226 to assess the constitutional validity of such State action. 

In the next piece, this author will discuss the Supreme Court’s treatment of the said question with reference to a few landmark judgements. The said discussion will also touch upon the manner in which the doctrine of separation of powers not only demarcates territories between the Legislature, the Executive and the Judiciary, but not also lays down a system of checks and balances in the event of transgressions by any of them.

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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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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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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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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