The Nature of Judicial Power: Article No. 1101

The question had been floating for a while. It was January 1, 2019 when I wondered who amongst then Chief Justices of HCs, if elevated, could be our 51st CJI. January 18, 2019 – we finally received an answer. CJI No. 51 would be Hon’ble Justice Sanjiv Khanna who wasn’t ever a Chief Justice of a HC, let alone on January 1, 2019. It is often asked, what significance do efforts put for predicting the future or assessing the past hold? It helps us know where we stand with a significant percentage of accuracy. December 31, 2021 – what follows are quotations from SC decisions of 2021. I pray it helps some in due time. 

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“The seed of this idea had a muted growth. E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 laid bare a new dimension in the majestic provisions of Article 14” [Hon’ble Justice K.M. Joseph, Manish Kumar v. Union of India, Writ Petition (Civil) No. 26 of 2020]. “Article 14 does not prohibit discrimination. What is required is a valid discrimination against a hostile one” [Hon’ble Justice M.M. Sundresh, State of Uttar Pradesh v. Principal, Abhay Nandan Inter College, Civil Appeal No. 865 of 2021]. “The case being an authority for what it actually decides in law and not for what may seem to logically follow from it” [Hon’ble Justice R.F. Nariman, The Mavilayi Service Cooperative Bank Ltd. v. Commissioner of Income Tax, Calicut, Civil Appeal Nos. 7343-7350 of 2019]. “Refer, Paragraphs 22 and 29 of Garware Wall Ropes Limited v. Coastal Marine Constructions & Engineering Limited, (2019) 9 SCC 209 affirmed in Paragraph 92 of Vidya Drolia v. Durga Trading Corporation, Civil Appeal No. 2402 of 2019 to Constitution Bench of Five Judges” [Hon’ble Justice Indu Malhotra, M/s. N.N. Global Mercantile Pvt. Ltd. v. M/s. Indo Unique Flame Ltd., Civil Appeal Nos. 3802-3803 of 2020].

“The acceptance of an offer may be either absolute or conditional. If the acceptance is conditional, offer can be withdrawn at any moment until absolute acceptance has taken place” [Hon’ble Justice Indira Banerjee, M/s. Padia Timber Company (P) Ltd. v. Board of Trustees of Visakhapatnam Port Trust, Civil Appeal No. 7469 of 2008]. “One of the meanings of expression ‘inconsistent’ as approved by this Court is mutually repugnant or contradictory. Constitution itself has used the words ‘inconsistency’ and ‘repugnancy’ interchangeably” [Hon’ble Justice Ashok Bhushan, Parmar Samantsinh Umedsinh v. State of Gujarat, Civil Appeal No. 706 of 2021]. “It is left open to the RBI to issue suitable rules with respect to the responsibility owed by banks for any loss or damage to the contents of the lockers” [Hon’ble Justice Mohan M. Shantanagoudar, Amitabha Dasgupta v. United Bank of India, Civil Appeal No. 3966 of 2010]. “The concept of ‘absurdity’ in the context of interpretation of statutes is construed to include any result which is unworkable, impracticable, illogical, futile or pointless, artificial, or productive of a disproportionate counter mischief” [Hon’ble Justice Sanjiv Khanna, Franklin Templeton Trustee Services Private Limited v. Amruta Garg, Civil Appeal Nos. 498-501 of 2021]. “A useful elaboration of ‘sham transactions’ can be found in the opinion of Diplock LJ in Snook v. London and West Riding Investments Ltd., [1967] 2 QB 786” [Hon’ble Justice Dr. D.Y. Chandrachud, Phoneix Arc Private Limited v. Spade Financial Services Limited, Civil Appeal No. 2842 of 2020]. “The advantage English Courts have is, irretrievable breakdown of relationship is recognized as a ground for separation both in a matrimonial relationship and in commercial relationship, while it is not so in India” [Tata Consultancy Services Limited v. Cyrus Investments Pvt. Ltd., Civil Appeal No. 440-441 of 2020]. “European Court of Human Rights observed, indirect discrimination can be proved without statistical evidence” [Hon’ble Justice Dr. D.Y. Chandrachud, Lt. Col Nitisha v. Union of India, Writ Petition (Civil) No. 1109 of 2020]. “The distribution of copyrighted computer software, on the facts before us, would constitute the grant of an interest in copyright under section 14(b)(ii) thus necessitating the deduction of tax at source under Section 195 of The Income Tax Act, 1961” [Hon’ble Justice R.F. Nariman, Engineering Analysis Centre of Engineering Private Limited v. CIT,  Civil Appeal Nos. 8733-8734 of 2018]. “Learned ASG took strong objection to the use of the expression ‘quasi-criminal’ to describe proceedings under Section 138, which, according to him, can only be described as ‘criminal’. There are many instances of acts which are punishable by imprisonment or fine or both which have been described as ‘quasi-criminal’. We reject Learned Additional Solicitor General’s strenuous argument” [Hon’ble Justice R.F. Nariman, P. Mohanraj v. M/s. Shah Brothers Ispat Pvt. Ltd., Civil Appeal No. 10335 of 2018]. “Where a High Court construes a local statute, ordinarily deference must be given to the High Court Judgments in interpreting such a statute, particularly when they have stood the test of time” [Hon’ble Justice R.F. Nariman, Govt. of Kerala v. Mother Superior Adoration Convent, Civil Appeal No. 202 of 2012]. “Reference to Larger Bench is unnecessary. We keep the debate alive” [Hon’ble Justice Dr. D.Y. Chandrachud, Patan Jamal Vali v. State of Andhra Pradesh, [Criminal Appeal No. 452 of 2021]. “Courts must be open, both in physical and metaphorical sense. Citizens have a right to know about what transpires in course of proceedings. Public scrutiny is crucial to maintaining transparency and accountability” [Hon’ble Justice Dr. D.Y. Chandrachud, Chief Election Commissioner of India v. M.R. Vijaybhaskar, Civil Appeal No. 1767 of 2021]. “Legislature of State of West Bengal has attempted to set up its parallel legislation involving a parallel regime” [Hon’ble Justice Dr. D.Y. Chandrachud, Forum for People’s Collective Efforts v. State of West Bengal, Writ Petition (Civil) No. 116 of 2019].

“COVID-19 engulfed this country in March, 2020 and continues till date changing its face from time to time. Different mutations in the virus have made it dangerous and fatal at times. To provide food security to impoverished persons is the bounden duty of all States and Governments” [Hon’ble Justice Ashok Bhushan, In Re: Problems and Miseries of Migrant Labourers, Suo Motu Writ Petition (Civil) No. 6 of 2020]. “When it comes to discretion, the exercise thereof has to be guided by law; has to be according to rules of reason and justice; and has to be based on relevant considerations. The requirements of reasonableness, rationality, impartiality, fairness and equity are inherent in any exercise of discretion” [Hon’ble Justice Dinesh Maheshwari, Union of India v. M/s. Raj Grow Impex LLP, Civil Appeal Nos. 2217-2218 of 2021]. “The technological age has produced digital platforms – not like the railway platforms where trains were regulated on arrival and departure. These digital platforms can be imminently uncontrollable at times and carry their own challenges” [Hon’ble Justice Sanjay Kishan Kaul, Ajit Mohan v. Legislative Assembly, NCT, Writ Petition (Civil) No. 1088 of 2020]. “No one can deny, the menace of criminalization in the Indian political system is growing day by day” [Hon’ble Justice R.F. Nariman and Hon’ble Justice B.R. Gavai, Brajesh Singh v. Sunil Arora, Contempt Petition (Civil) No. 656 of 2020 in Contempt Petition (C) No. 2192 of 2018 in Writ Petition (C) No. 536 of 2011]. “The use of the term ‘likely’ in several places in respect of ‘culpable homicide’, highlights the element of uncertainty. Section 300, which defines ‘murder’, however refrains from use of the term ‘likely’. This reveals absence of ambiguity left” [Hon’ble Justice S. Ravindra Bhat, Mohd. Rafiq v. State of Madhya Pradesh, Criminal Appeal No. 856 of 2021]. “Many times it is very difficult to appreciate what the Learned Judge wants to convey through the ‘Judgment’” [Hon’ble Justice M.R. Shah, Shakuntala Shukla v. State of Uttar Pradesh, Criminal Appeal No. 876 of 2021]. “Recently, Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 highlighted importance of ‘freedom of press’. An important and necessary corollary of such a right is to ensure protection of ‘sources of information’. Without such protection, sources may be deterred from assisting” [Manohar Lal Sharma v. Union of India, Writ Petition (Criminal) No. 314 of 2021]. “In circumstances where other evidence is available to prove or dispute, Court should ordinarily refrain from ordering blood tests. Because such tests impinge upon right of privacy and could also have major societal repercussions” [Hon’ble Justice Hrishikesh Roy, Ashok Kumar v. Raj Gupta, Civil Appeal No. 6153 of 2021]. “Every case involves a journey towards truth” [Hon’ble Justice M.M. Sundresh, Arvind Kumar v. State of Rajasthan, Criminal Appeal No. 753 of 2017].

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