Landmark Judgment from the 90s

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Scam-tainted politicians - 1997

The Jain Hawala case exposed bigwigs

The Hawala scandal was an Indian political scandal involving payments allegedly received by politicians through four hawala brokers, the Jain brothers. In 1991, an arrest linked to militants in Kashmir led to a raid on hawala brokers, revealing evidence of large-scale payments to national politicians. The prosecution that followed was partly prompted by public interest litigation. Many were acquitted, partly because the hawala records (including diaries) were judged in court to be inadequate as the main evidence. The high court decreed that the CBI had not brought on record any material which could be converted into legally admissible evidence. The supreme court proceeding did not relate to the hawala case per se, but rather to the suspicious transfer of the CBI Director Joginder Singh and the rampant misuse of political power to curb the investigations of the CBI and Revenue department. In its judgment, delivered on 18 December 1997, the court, through judges S.P.Bharucha and S.C.Sen gave a ruling consisting of a 26 points list of pronouncements, the most important of which made it impossible for politicians in the government to remove the Director of the CBI for 2 years, thus ensuring that the CBI and its officers would have the freedom to carry out their work without political interference

 

Power of President's Rule curtailed (SR Bommai v Union of India) - 1994

FACTS

Bommai v. Union of India came before the bench of 9 judges (consisting of Kuldip Singh, P. B. Sawant, Katikithala Ramaswamy, S. C. Agarwal, Yogeshwar Dayal, B. P. Jeevan Reddy, S. R. Pandian, A. M. Ahmadi, J. S. Verma) under the following circumstances:

Karnataka

The Janata Party is the majority party in the Karnataka State Legislature had formed Government under the leadership of S. R. Bommai. In September 1988, the Janata Party and Lok Dal merged into a new party called Janata Dal. The Ministry was expanded with the addition of 13 members. Within two days thereafter, K.R. Molakery, a legislator of Janata Dal defected from the party. He presented a letter to the Governor Pendekanti Venkatasubbaiah along with 19 letters, allegedly signed by legislators supporting the Ministry, withdrawing their support. As a result, on 19 April, the Governor sent a report to the President stating therein there were dissensions and defections in the ruling party. He further stated that in view of the withdrawal of the support by the said legislators, the chief Minister, Bommai did not command a majority in the Assembly and, hence, it was inappropriate under the Constitution, to have the State-administered by an Executive consisting of Council of Ministers which did not command the majority in the state assembly. He, therefore, recommended to the President that he should exercise power under Article 356(1). However, on the next day, seven out of the nineteen legislators who had allegedly written the said letters to the Governor sent letters to him complaining that their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the Ministry. The Chief Minister and his Law Minister met the Governor the same day and informed him about the decision to summon the Assembly, even by bringing forward the scheduled session, to prove the confidence of assembly in his Ministry. To the same effect, he sent a telex message to the President. The Governor, however, sent yet another report to the President on the same day i.e., 20-4-1989, and stated that the Chief Minister had lost the confidence of the majority in the House and repeated his earlier request for action under Article 356(1). On that very day, the President issued the Proclamation in question with the recitals already referred to above. The Proclamation was, thereafter approved by the Parliament as required by Article 356(3).

A writ petition was filed on 26 April 1989 challenging the validity of the proclamation. A special bench of 3 judges of Karnataka High Court dismissed the writ petition.

Meghalaya

On 11 October 1991, the president issued a proclamation under Article 356(1) dismissing the government of Meghalaya and dissolving the legislative assembly. The Proclamation stated that the President was satisfied on the basis of the report from the Governor and other information received by him that the situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution. The Government was dismissed and the Assembly was dissolved accordingly.

Nagaland

On 7 August 1988, the president issued the proclamation on the basis of Governor Report and dismissed the Government of Nagaland thus dissolving the Legislative assembly. Vamuzo, leader of the opposition party, challenged the validity of Proclamation in Gauhati High Court. A Division Bench comprising the Chief Justice and Hansaria, J. heard the petition. The Bench differed on the effect and operation of Article 74 (Constitution of India)(2) and hence the matter was referred to the third Judge. But before the third learned judge could hear the matter, the Union of India moved this Court for grant of special leave which was granted and the proceedings in the High Court stayed.

Madhya Pradesh, Rajasthan and Himachal Pradesh

On account of the Babri Masjid demolition, communal riots spread out in the entire country. The Central Government banned RSS, VHP and Bajrang Dal. The Central Government dismissed the BJP Governments of Madhya Pradesh, Rajasthan and Himachal Pradesh. As a result, on 15 December 1992, the president issued the proclamation under Article 356 dismissing the State Governments and dissolving the Legislative Assemblies Madhya Pradesh, Himachal Pradesh and Rajasthan. The validity of these proclamations was challenged by the Writs in the appropriate High Courts. The Madhya Pradesh High Court allowed the petition, but writ petition relating to Rajasthan and Himachal Pradesh were withdrawn to Supreme Court.

All the above-said petition contained similar question of law and therefore they were heard conjointly by the Hon’ble Supreme Court. The arguments in the S.R. Bommai’s case commenced in the first week of October 1993 and were concluded in the last week of December 1993.

The case, which would go on to become one of the most cited whenever hung Assemblies were returned, and parties scrambled to form a government, took almost five years to see a logical conclusion. On March 11, 1994, a nine-judge Constitution Bench of the Supreme Court issued the historic order, which in a way put an end to the arbitrary dismissal of State governments under Article 356 by spelling out restrictions. The verdict concluded that the power of the President to dismiss a State government is not absolute. The verdict said the President should exercise the power only after his proclamation (imposing his/her rule) is approved by both Houses of Parliament. Till then, the Court said, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly. "The dissolution of the Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation," the Court said.

 

Reservation in Central Government jobs (Indra Sawhney v UOI November) – 1992

When our own Constitution was framed the framer of the constitution made a special provision with the intention to provide equal opportunity in the public employment to all the citizens within INDIA. The same was inserted in the Art. 16 of the Indian Constitution. But considering the backward classes, a special provision was inserted in the same Art. In clause 4 i.e., in Art. 16(4). This section empowers the State to make a special provision for those backward classes who in the opinion of the State are not adequately represented in the service under the State. 

Facts Of This Case:-
 

  1. The facts of the cases were as follows. On January 1, 1979, the JANATA Government headed by the Prime Minister Sri MORARJI DESAI appointed the second Backward Classes (By a Presidential Order under Article 340 of the Constitution of India, the first Backward Class Commission known as KAKA KALLELKAR's Commission was set up on January 29, 1953, and it submitted its report on March 30, ,1955 listing out 2399 castes as socially and educationally backward on the basis of criteria evolved by it, but the Central Government did not accept that report and shelved it in the cold storage) Commission under Article 340 of the Constitution under the chairmanship of Sri B.P. Mandal (MP) to investigate the Socially & Educationally Backward Classes within the territory of INDIA & recommended steps to be taken for their advancement including the necessary provision which are to be required to be made for them for the upliftment of their status by giving equal opportunity in the public employment.
     

  2. The commission submitted its report on December 1980 in this report the commission identified about 3743 castes as socially & educationally backward classes& recommended for reservation of 27% in Government jobs.
     

  3.  In the meantime due to internal disturbance within the party the GOVT. collapsed & by thus it couldn’t implement the recommendations made by MANDAL COMMISSION& after that the CONGRESS GOVT. headed by the Prime Minister Smt. INDIRA GANDHI came to power at the centre. But she didn't implement the MANDAL COMMISIONS report till 1989. In 1989 the CONGRESS GOVT. toppled due to the defeat of the general election.
     

  4.  After winning that election JANATA DAL again came to the power & decided to implement the report of the commission. After that then Prime Minister V.P.SINGH issued office of a memorandum on AUGUST 13, 1990& reserved 27% seats for the Socially & Backward classes.
     

  5. This cause-effect in civil disturbance throughout the INDIA. From various places, anti Reservation movement rocked the nation for 3 months. It results in a huge loss of persons & property.
     

  6. A writ petition was filed from the BAR ASSOCIATION OF THE SUPREME COURT.Challenging the validity of Office of Memorandum issued by the GOVT.

  7. The case was ultimately decided by the 5 Judges bench. They issued a stay order till the final disposal of the case on October 1, 1990. Unfortunatelyin the meanwhile JANATAGOVT. again collapsed due to defections & in 1991 by the Parliamentary elections & the Congress again formed the GOVT. at centre.
     

  8. To tackle the situation & also for the political gain then Prime Minister P.V. NARSHIMA RAO issued another office of memorandum by making 2 changes i) by introducing the economic criterion in granting reservation within 27% in Govt. Job. & ii) Reserved another 10% of vacancies for the socially & educationally backward classes. That is total 37% (27% 10%)
     

  9. The 5judge’s bench referred this matter to the 9 judges bench who issued a notice to the Govt. to show cause the criteria upon which the GOVT. has proposed to make 27% reservation for them. But in spite of taking several adjournments the GOVT. of INDIA has failed to explain the criteria mentioned in the office of the memorandum.

Judgement:-
The 9 judges Constitution Bench of the Supreme Court by 6-3 majority gave the following judgements:-

I. Backward class of citizen in Article 16(4) can be identified on the basis of the caste system & not only on an economic basis.
II. Article 16(4) is not an exception of Article 16(1). It is an instance of the classification. Reservation can be made under article 16(1).
III. Backward classes in Article 16(4) were not similar to as socially & educationally backward in article 15(4).
IV. The creamy layer must be excluded from the backward classes.
V. Article 16(4) permits the classification of backward classes into backward & more backward classes.
VI. A backward class of citizens cannot be identified only & exclusively with reference to economic criteria.
VII. Reservation shall not exceed 50%.
VIII. Reservation can be made by the ‘EXECUTIVE ORDER’.
IX. No reservation in promotion.
X. Permanent Statutory body to examine complains of over – inclusion / under – inclusion.
XI. The majority held that there is no need to express any opinion on the correctness or adequacy of the exercise done by the MONDAL COMMISSION.
XII. Disputes regarding new criteria can be raised only in the Supreme Court.

 

Wrangle over Supreme Court judge appointments (Supreme Court Advocates-on-Record - Association and another versus Union of India) – 1993

The case is based on the independence of the judiciary as the part of the basic structure of the Constitution. This case is famously known as ‘Second Judges Case”. To secure the ‘Rule of Law’ which is essential for the preservation of the democratic system and the separation of powers which is adopted in the constitution with the directive principles of ‘Separation of judiciary from the executive’, the case was decided on 6th October 1993.

After its judgement, the collegium system was adopted in the appointment of judges of Supreme Court and High Courts. Nine Judges examined two questions:

  1. The position of the Chief Justice of India.

  2. The justiciability of fixation of judge strength.

Facts

The nine-Judge Bench not only overruled S.P. Gupta’s case but also devised a specific procedure for appointment of Judges of the Supreme Court in the interest of “protecting the integrity and guarding the independence of the judiciary.” For the same reason, the primacy of the Chief Justice of India was held to be essential.

The bench held that the recommendation in that behalf should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should normally be given effect to by the executive.

Thus, in 1993, the Chief Justice of India got primacy in appointing judges, and till this time, it was the government’s job to fill vacancies in HCs and the SC.

The matters relating to the appointment of the judiciary have plagued and perplexed the judicial mind ever since the inception of the constitution. This matter has to be resolved by the interpretation of the constitutional provisions relating to the appointment of the judiciary. The omnipresent bogey haunting every pronouncement is the independence of the judiciary. A delicate balance had to be struck between democratic control of an essentially undemocratic institution and impartial arbitration.

The matter came up for adjudication in Sankal Chand vs. Union of India, where the court upheld the transfer of the Chief Justice of Himachal Pradesh. However, by 1982, the debate had reached epic proportions. These matters took solid form in a batch of writ petitions questioning the move to transfer the judges challenging the affected transfer of some judges and demanding the justifiability of judge strength.

The Supreme Court, while disposing of the matter, vested the ultimate control with the Central Government. At this juncture, a bill was introduced in the parliament seeking to amend the Constitution (67th Amendment) Bill 1990 seeking to amend articles 124(2), 217(1), 222(1) and 231 (2) (a). This bill brought to empower the president to set up a judicial commission known as the National Judicial Commission. The avowed objective was to implement the 121st Law Commission Report. This report recommended that a judicial commission is set up to oversee the appointment of the judiciary. However, nothing came of this as the bill lapsed with the dissolution of the 9th Lok Sabha. The writ petitions seeking a review of SP Gupta case were heard by a three-judge bench, namely Chief Justice Ranganath Mishra and Justices MN Venkatachaliah and MM Punchhi, which recommended reconsideration.

Judgement

Thus on the question of primacy, the court concludes that the role of Chief Justice of India in the matter of appointment of the Judges of the Supreme Court is unique, singular and primal, but participatory vis-a-vis the executive on a level of togetherness and mutuality, and neither he nor the executive can push through an appointment in derogation of the wishes of the other.

In this judgement, the majority consisting of Justices JS Verma, Yogeshwar Dayal, GN Ray, Dr AS Anand and SP Bharucha with concurring separate judgements delivered by S. Pandian and Kuldip Singh, JJ, held that view in SP Gupta’s case insofar as the issue of “primacy” is concerned is overruled.

The minority consisting of Ahmadi and Punchhi held that the executive had primacy over the opinion of the Chief Justice of India while on the matter of the fixation of judge strength, Punchhi did not express a view, Ahmadi, J concurred with Venkataramaiah, J in SP Gupta’s case allowing a limited mandamus to the issue.

 

 State of West Bengal v. Mir Mohammad Omar

Facts

  • The victim, Mahesh Kumar Aggarwal was doing small business in Calcutta. The accused, Mir Mohammad Omar and Sajad Ali wanted him to pay them INR 50,000 for allowing him to do his business without any hindrance or obstructions. But Mahesh did not agree to their demands which led to a fight.

  • A few nights later, when Mahesh returned to his house, his sister told him that a few assailants had come before looking for him, and were threatening to hurt him. Scared, Mahesh left to take asylum at his friend’s house for the night.

  • Just an hour after he had been at his friend’s place, a man came to tell Mahesh that Omar is waiting outside for him. Mahesh went out and Omar asked him to accompany him, but Mahesh disagreed. Thereafter, Omar forcibly took Mahesh to the Rickshaw, but Mahesh escaped and went to a neighbour’s house where he took asylum.

  • At around 2:30, the accused entered Mahesh’s room and dragged him out. He resisted but was beaten by a lathi and taken away. His neighbour went and lodged a police complaint that very night.

Judgement

The court held that there is enough evidence to show that Mahesh was abducted. It was said that abduction takes place when a person is compelled by force to go from a place. In this case, Mahesh was taken away from two places, first from his friends’ place, which he escaped and second from the neighbour’s place. In both instances, force was used. Hence, the accused were held liable.

 

Biswant Mallick v. State of Orissa

Facts

  • Kalyani had been kidnapped by the accused/petitioner Biswant Mallick when she had gone out around midnight. He first took her to Cuttack, then to Bhubaneshwar and finally to Jeypore.

  • Her father lodged a complaint at the police station. During the investigation, she was found and rescued from the house of a relative of the accused.

  • The petitioner was held guilty and sentenced to two years rigorous imprisonment and a fine of Rs. 100.

  • On the petition, the counsel for the accused argued that the girl had attained the age of discretion (age to make decisions for herself and understand the consequences of her act) as she was 17 years, 8 months and 7 days old and thus kidnapping did not take place.

Judgement 

The court clarified the difference between taking and entice as given in section 361 of the Indian Penal Code.

  • The court said that the word ‘take’ means cause to go or to escort or to get into possession. This means that in taking, the desire of the person being taken to be taken is missing. 

 

Pawan Kumar & Ors vs State Of Haryana on 9 February 1998

Facts

Appellant No. 1 is the husband and his deceased wife Urmil. They after some time Shifted to Sonepat (Harayana). Urmil returned back to her parent’s house within a few days of her marriage and complained about the demands of dowry for refrigerator, scooter etc. She did not fulfil the demands and was subjected to face torture and harassment by the appellants like commenting on her that she looks ugly etc. As a result of such comments and taunts by the appellants, she committed suicide and died due to the burn injuries.

The case was registered against the accused namely her husband, father-in-law and mother-in-law. In court, it was argued by the learned counsel of the appellant that there is no offence committed here as it does not fulfil the essential ingredients of Section 304B of Indian Penal Code and also no evidence was found out that soon before her death the deceased in any way was subjected to cruelty or harassment in connection with the demand for dowry.

Judgement

The learned counsel of the appellant argued that the mere desire to acquire a refrigerator, scooter etc. should not come within the ambit of demanding dowry and cannot be held as an offence as this would not come under the definition of dowry under Section 2 of Dowry Prohibition Act, 1961 with Section 304B and Section 498A of Indian Penal Code. It was held by the Court that Demand for dowry itself is an offence under Section 304B and to be an offence under this it does not requires that an agreement for it should be necessarily present. The court also held him guilty under Section 498A subjecting her to cruelty or harassment by passing comments on her looks and also taunting her to bring more dowry.  

Pawan Kumar appellant No.1 under Section 304B was sentenced to 7 years of rigorous imprisonment and liable to pay fine of Rs 500 and in default of paying fine 6 months will be added to his imprisonment. And under 306 IPC was sentenced to 4 years of rigorous imprisonment and a fine of Rs 200 and in default of the payment 3 months will be added to his imprisonment and also held him guilty under Section 498A sentenced him for 2 years rigorous imprisonment and Rs 200 fine in default more 3 months to his imprisonment will be added.

 

State Of Himachal Pradesh vs Nikku Ram And Ors on 30 August 1995

In this case, the couple was married and after 5-6 months of their marriage husband, sister-in-law and mother-in-law started taunting the wife of the husband for bringing less dowry. They started demanding several things from her which was not fulfilled by her. The prosecutor filed a case for torturing the deceased and subjected her to cruelty in order to make her bring more dowry. Gradually the torture on her increased so much that the mother-in-law hit her with a sharp blade on her forehead causing a deep cut over there. She was unable to tolerate the ill-treatment by her husband and by her in-laws on her, as a result, she committed suicide by consuming naphthalene balls and died.

During the investigation, the sharp-edged blade was recovered and after the completion of the investigation husband, sister-in-law and mother-in-law were charged under the Section of 304-B, 306 and 498-A of the Indian Penal Code. And the case against them was registered.

The Court after examining all the evidence, it was held that persons who are charged under Section 304-B, 306 and 498-A will be free from these criminal charges as the prosecution failed to produce the evidence against them and only mother-in-law will be held guilty under Section 324 of the Indian Penal Code as voluntarily causing hurt to her daughter-in-law. And imposed a fine of Rs. 3,000, failing to pay the fine will attract simple imprisonment for 1 month.