1. Constitution Bench : 5 bench
2. Coram : Arun Mishra , Indira Banerjee, Vineet Saran, M.R. Shah, Anirudha Bose JJ.

Background:

State of U.P. v. Dinesh Singh Chauhan (2016) 9 SCC 749 [ 3 judge] decided that any reservation for in­service   government   doctors   in   PG   degree   courses is not available in the Regulations 9(IV) and 9(VII) of the Medical Council of India and hence the State Government order providing the reservation for PG degree courses for in-service government doctors is held to be illegal. T.N. Medical Officers Association v. Union of India (2018) 17 SCC 478 again deliberated on the same issue. But as both the benches are of coordinate strength, it was referred to a higher bench i.e. the present bench.

 In a different instant, [ SLP (civil) no. 31395 of 2017 Court directed the State of Gujarat to conduct the counselling keeping in view the regulation which provides for 50% of seats to be reserved in the Post­graduate Diploma Courses for Medical Officers in the government service who have served for at least three years in remote and/or difficult areas.  Continue reading →

Controversy regarding reservation in promotion for SC and ST.

Background-

1. Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 ( Act of 1994) provides for reservation in promotion or the people belonging to SC and ST.
2. After the state of Uttarakhand was formed the same act was made applicable to Uttarakhand also with reservation for SC being 19% and for ST as 4% and 14% for OBC.
3. A few High Court decisions of UP held that, the Act was not valid as per the M. Nagraj V Union of India  (2006) 8 SCC 212. This is because, Nagraj asked to have quantifiable data for reservation in promotion. Without such data, reservation in promotion cannot be given.
4. Similarly, Uttarakhand High Court in Vinod Prakash Nautiyal & Others v. State of Uttarakhand & Other followed the directions of U.P. Power Corporation v Rajesh Kumar (2012) 7 SCC 1 and declared the act as invalid. As per the direction of HC judgement in Vinod Prakash, the state government formed a committee for collecting quantifiable data.
5. In 2012, the state government abolished all reservation in promotion with respect to SC and ST. Against this order, a case was filed in the HC. The HC of Uttarakhand held that, reservation it is not necessary for the State Government to collect quantifiable data regarding representation of Scheduled Castes and Scheduled Tribes in State services or regarding their backwardness before providing reservation in their favour in promotion posts.
6. A review petition was filled. High Court understood that there was an error apparent on their part in that case especially in view of Jarnail Singh v Laccmi Narayan Gupta.
7. The High Court clarified that the State Government is obligated to collect quantifiable data regarding inadequacy of representation of the Scheduled Castes and Scheduled Tribes in state services before providing reservation in promotion. The High Court clarified that it is not necessary for the State Government to collect data regarding backwardness of the Scheduled Castes and Scheduled Tribes in the light of the direction of this Court in Jarnail Singh
8. The High Court also observed that the State is not obligated to provide reservation in promotions to members of Scheduled Castes and Scheduled Tribes as Article 16(4-A) of the Constitution is an enabling provision. However, reservation can be provided by the State Government only after collecting data regarding inadequacy of representation of the Scheduled Castes and Scheduled Tribes in state services
9. As such, the High Court directed the State Government to collect quantifiable data regarding inadequacy of the representation of the Scheduled Castes and Scheduled Tribes in Government services which would enable the State Government to take a considered decision on providing or not providing reservation. The State Government was directed to take a decision whether to provide reservation or not only after considering the data relating to the adequacy or inadequacy of representation of Scheduled Castes and Scheduled Tribes in the services of the State within a period of four months from the date of receipt of the judgment.
10.  On this matter issue went to Supreme Court.

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Coram – U.U. Lalilt J. , Ravindra Bhatt J., Hrishikesh Roy J.

Fact of the case-

1. Sonam Tomar (OBC-Female) and Rita Rani (SC-Female) applied for constable recruitment in UP police and secured 276.5949 and 233.1908 marks respectively.
2. But their claim for the post was rejected and candidates with lower marks were selected for General Category –Female
3. The state’s plea was that there was horizontal reservation for female constables for General, OBC and SC category. While drawing the impugned select list, the horizontal quota was already filled for OBC and SC category and hence, in the impugned list only woman for female category were given benefit of reservation.
4. The last candidate who was selected as per General Female category secured – 274.8298 marks. Sonam Tomar had secured 276.5949 marks but her case was not considered. Twenty one other such candidates belonging to OBC category were present who had scored more marks than the last candidate selected under General-Female category
5. The Government took the stand that the category was general-female category and hence OBC-female category students could not be selected

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Date of Judgement : 26.09.2018

Coram : Deepak Mishra Cj., Kurian Joseph, R.F. Nariman, S.K. Kaul, Indu Malhotra JJ.

A bit haphazardly written judgement.

Imp. Notes –

1. Constitution bench judgement on interpretation of requirement of quantifiable data for deciding reservation and creamy layer principle to SC /ST. It overturns one of the directions of Nagraj v Union of India (2006) 8 SCC 212
2. There is a controversy whether Jarnail Singh case can over-rule the direction of a coordinate strength bench ( Nagraj was also a five judge bench). But in Davinder Singh (another five judge bench) the court held that creamy layer is a principle of equality and not classification and Jarnail Singh is not per incuriam as it corrected the error in the Nagraj, in view of the Indra Swhaney judgement (eleven bench judgement).
3. This judgement is written in a haphazard manner.

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Coram- Ashok Bhushan, M R Shah,  Subash Reddy JJ.

• Issues-
  • . Whether   the   revised   guidelines   dated 06.07.2020   requiring   the   Universities   to complete   terminal   semester/final   year examination   by   30.09.2020   is   beyond   the domain   of   the   UGC   and   does   not   relate   to “co­ordination   and   determination   of standards   in   institution   of   higher education”?
  • Whether   the   revised   guidelines   dated 06.07.2020   issued   by   the   UGC   are   non statutory,   advisory   only   and   contrary   to earlier guidelines dated 29.04.2020? 3. Whether   the   UGC   guidelines   dated 06.07.2020   are   violative   of   Article   14   of the Constitution of India?
  • Whether   the   UGC   guidelines   dated 06.07.2020   are   violative   of   Article   21   of the Constitution of India and the guidelines have   been   issued   disregarding   the   pandemic COVID­19?
  •  Whether the guidelines of the UGC dated 06.07.2020 are liable to be set aside on the ground   of   non­compliance   of   Section   12   of UGC Act, 1956?
  • Whether   the   State   and   State’s   Disaster Management  Authority   in   exercise   of jurisdiction   under   Disaster   Management   Act, 2005   can   take   a   decision   not   to   hold examination   by   30.09.2020   disregarding   the direction   in   the   UGC   guidelines   dated 06.07.2020?
  • Whether   the   State   or   State   Disaster Management   Authority,   in   exercise   of jurisdiction   under   Act,   2005,   can   take   a decision   to   award   degrees   to   final year/final   semester   students   by   promoting them on the basis of criteria of assessment formulated by the State/Universities on the result   of   previous   semesters/exams   and internal   assessment   of   final   year/terminal semester   in   disregard   to   the   guidelines dated   06.07.2020   which   require   holding   of examination   of   final   year/terminal   semester by 30.09.2020?
• Judgment-
  • Issues-I
    • A Three Judge Bench of this Court had occasion to consider   all   legislative   entries   pertaining   to education including University education in Professor Yashpal and Anr. Vs. State of Chhattisgarh and Ors., (2005) 5 SCC 420. It said, UGC   will   also   have   the   power   to recommend   to   any   University   the   measures necessary for the reform and improvement of University   education   and   to   advise   the University concerned upon the action to be taken for the purpose of implementing such recommendation. The Commission will act as an   expert   body   to   advise   the   Central Government   on   problems   connected   with   the co­   ordination   of   facilities   and maintenance of standards in Universities
    • In the present case, the   Guidelines   dated   06.07.2020   provided   that Universities are required to complete the examination by   the   end   of   September,   2020   in   offline   (pen   and paper)/online / blended (offline and online mode) all terminal semester/final year examinations 2020.   The Guidelines dated 06.07.2020 intended that it is only after   holding   of   terminal   semester/final   year examination,   Universities   may   proceed   to   grant degrees.     The   challenge   to   Guidelines   is   on   the ground that Guidelines are beyond the domain of UGC and   does   not   relate   to   “co­ordination   and determination of  standards  in institution of  higher education”.  Court has held in Professor Yashpal case that the standards of education in an institution depends on various factors, one of which   includes   “the   standard   of   examinations   held including the manner in which the papers are set and examined”.
    • In  Modern Dental College and Research Centre and Ors. Vs. State of Madhya Pradesh and Ors., (2016) 7 SCC 353, the court held that The   enactment   in   question   does not run foul of any of the existing Central laws. As far as the introduction of a CET at a national level is concerned, the same was   not   enforced   during   the   period   of operation   of   the   State   statute.   In   any event, there being no Regulations regarding fixation or determination of fees of these institutions to ensure that the same does not   allow   commercialisation   or profiteering,   the   State   Legislature   was well   competent   to   enact   provisions regarding the same. In the judgment it was held, UGC interference is limited   “however,   that   would   not include conducting of examination, etc. and admission of students to such institutions or prescribing the fee in these institutions of higher education, etc.”
    • In the present case UGC has not demanded for conducting examination. The   examinations   are   to   be conducted by the respective Universities only. Hence, Guidelines dated 06.07.2020 are not beyond the   domain   of   the   UGC   and   they   relate   to   coordination   and   determination   of   standards   in institutions of higher education.

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Bench : A.M. Khanwilkar, Dinesh Maheswari and Sanjiv Khanna JJ.

1. Objectives of the Central Vista Project-

As per the policy documents, the need for the development of the Project is rooted in the creation of a larger working space for efficient functioning of the highest legislative wing of the country and for integrated administrative block for Ministries/Departments presently spread out at different locations including on rental basis. Present arrangement has a sitting capacity of only 440 people.  Present structure does not have adequate fire, water and electrical safety norms . Hence, new structure is needed. In order to address the concerns stated above, the Central Government decided to construct a new Parliament building with a futuristic approach and the House of People being 3 times the size of the present chamber. That along with the present Parliament building and Annexe attached therewith, would be referred to as the Parliament Complex. It is further proposed that all the 51 Ministries of the Central Government be housed in 10 buildings within an integrated complex marked with underground transit connectivity and structural identity.

1. It has been stated that the new Parliament shall symbolize the 75th Independence Day of the country in 2022 as well as the Global G20 Summit to be hosted by India in the same year
2. The objectives of the project are:
3. A new Parliament Building with space and technology to meet the present and emerging needs of vibrant Indian democracy.
4. Common Central Secretariat with all Ministries in a single location for efficiency and synergy in functioning.
5.  Central Vista to be redeveloped as a world class public space and venue for national and international events.
6. Argument of parties-  Not very important
7. Judgment –
   1. Rule of Law- Discussion by examining this fundamental premise so as to understand to what extent, if at all, and in what manner policy/administrative decision-making can be overseen in judicially manageable standards in the light of rule of law.
      1. Constituent assembly has two fundamental instruments for governing this country – Democracy and Rule of Law. Constitution makers wanted an environment where law operates equally upon one and all, where Rule of Law trumps over even the slightest notion of rule by whims, where the equation between state and citizens is not marked by imbalance and where law, as it exists, governs all legal relationships.
      1. The constituent assembly discusses the various facets of rule of law
         1. Democracy means a rule of law as opposed to a rule of force. Democracy means supremacy of the law where no one, be he the highest individual, is above the law [Mr. Naziruddin Ahmad]
         1. the rule that should save the Government from all manner of disruptive tendencies [ Dr. P.K. Sen]
         1. The rule of law is a concept on which the democratic institutions in our Constitution are based. Rule of law means subordination of everything to the rule of law and that conscientious regard for the rights and for justice not only between subjects and subjects but also between the State and the subjects [ K.M. Munsi]
      1. Rule of law posits four universal tenets
         1. It is a system of laws and  institutions that envisages accountability of government and private actors
         1. The laws must be just, clear, publicized and stable and applied evenly, protect fundamental rights and human rights
         1. Open Government –the processes by which the laws are enacted, administered and enforced are accessible, fair and efficient
         1. Accessible justice – to include timely delivery of justice by competent, ethical, and independent representations and neutrals who are accessible, have adequate resources
      1. The principle of Rule of Law coalesces two words – rule and law. “Rule” refers to the idea of governing the state and depending on the nature of model adopted in a country, such rule can be effected in multiple ways. The word “law”, now, lays down the precise contours of mode of ruling.  For example, our preamble speaks of the rule “Democratic” whereas Art. 13 speaks about the laws. The existence of democracy per se does not guarantee adherence to Rule of Law. But in a thriving democracy there should be three tenets of rule of law: first, Rule of Law requires law in existence; second, such law must qualify as law within the meaning of the Constitution and must satisfy the standards laid therein and third, legally applicable meaning of Rule of Law in India can be best understood as a democratic rule within the four corners of the Constitution.
   1. Democratic due process and judicial review-
      1. There is no definition of democratic due process. Rodney A. Smolla, in his seminal work “Democratic Due Process: Administrative Procedure after Bishop v. Wood  describes democratic due process as

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Decided on February 10, 2020

Coram –  Arun Mishra, Vineet Saran and S. Ravindra Bhat JJ

Acts used – Scheduled Castes and Scheduled tribes (Prevention of Atrocities) Act, 1989 — Ss.18 and 18A

WHAT IS THE JUDGMENT –

1. It is contended that S. 18A has been enacted to nullify the judgment in Dr. Subhash Kashinath Mahajan v. The State of Maharashtra. Held, with respect to preliminary inquiry for registration of FIR, the general directions (iii) and (iv) issued in Subhash Kashinath’s case are recalled and a preliminary inquiry is permissible only in the circumstances as per the law laid down by a constitution bench in Lalita Kumari v. Government of U.P., (2014) shall hold good and the amended provisions of S.18A have to be interpreted accordingly.
2. Held, S.482 of Cr.PC shall not apply to the cases under act of 1989, however, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by Ss. 18 and 18A shall not apply.

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Coram – M R Shah, A S Bopanna JJ.

Provisions used – Negotiable Instruments Act, 1881, S148 (as amended by Act 20 of 2018 w.e.f. 1-9-2018)

Held – use of word “may” in S148 has to be read as “shall” and appellate  courts must ordinarily order deposit of minimum 20% of compensation or fine amount imposed by trial court. S357(2) CrPC inapplicable to S148 in ordering to deposit minimum 20% of fine amount. S148 NI Act was amended 1-9-2018 so prior to that date some appeal proceedings must be pending in the courts. Amended S148 says interim compensation can be paid pending appeal. Question before the court was whether S148 shall be applicable for those cases which were in appeal before 1-9-2018. Court held its applicable. Continue reading →