Speaking on the occasion, the President said that the theme chosen for the conference is timely and apt: “Judiciary and the Changing World”. In a way, change is the only constant, and the world has always been changing. In recent years, however, the world has been changing very fast, and in unforeseeable ways. The role of the judiciary is bound to be pivotal amid these dramatic transformations.

The President said that the selection of the topics for the working sessions of the conference could not have been more meaningful. Gender Justice, Contemporary Perspectives on Protection of Constitutional Values, Dynamic Interpretations of the Constitution in a Changing World, Harmonisation of Environment Protection vis-à-vis Sustainable Development and Protection of Right to Privacy in the Internet Age are issues that influence every member of the global community. These five distinctly defined topics cover the matrix of challenges faced by the judiciary across the world. He was happy to note that the judiciary in India has been alive to these themes, and has approached them in the light of the vision behind the Indian Constitution.

The President said that the Supreme Court of India deserves admiration for carrying out many radical reforms that made justice more accessible to common people. Landmark judgements passed by this Court have strengthened the legal and constitutional framework of our country. Its bench and bar are known for their legal scholarship and intellectual wisdom. What it has achieved is nothing less than a silent revolution in diagnosing and correcting the afflictions that adversely affected the justice delivery system.

Referring the yeoman service rendered by the Supreme Court in making the higher courts’ judgments available in regional languages, the President said that this is indeed an extraordinary achievement given the linguistic diversity of India. As of now, the judgments of the Supreme Court get translated in up to nine Indian languages to make them accessible to common people. He expressed confidence that its scope would further widen with the passage of time.

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KBC had a segment meant for the home audience titled as Har Seat Hot Seat in which the home audiences could answer a general knowledge question asked during the show by calling through their MTNL/ BSNL landlines or SMS through their Airtel connection at the applicable tariff. The winner was randomly selected by the computer from amongst the participants with the right answer announced as per the terms and condition was awarded the prize money of Rs. 2,00,000.

The consumer complaint filed before the NCDRC alleging inter alia, that in conducting the Har Seat Hot Seat contest a ‘general Impression’ was given by Star that the participation to the contest was free I.e. the prize money for the contest was being given by Star, whereas in fact the prize money was allegedly being paid out of the collections by Star from the SMS and Calls being made by the participants. It was contended that this practice amounted to an unfair trade practice as per the consumer protection act.

Star on the other hand had contented that no evidence/ documentary proof was produced by the society or sample survey allegedly conducted by them was of no avail. Further,  ​“Sponsorship” of Kaun Banega Crorepati or its Har Seat Hot Seat component is not an “unfair trade practice” within the meaning of Section 2(1)(r)(3)(a) of the Consumer Protection Act, 1986. The Consumer Protection Act does not declare genuine sponsorships as an “unfair trade practice”. It was also contended that Star is the organizer of KBC and Har Seat Hot Seat participation for which is free of charge. Star has not recovered any charge from the participants of KBC or Har Seat Hot Seat.  Merely because prizes are being distributed by Star from sponsorships received from its sponsors, such as Airtel, it does not constitute an unfair trade practice under Section 2(1) (r) (3) (a) or Section 2(1) (r) (3) (b) of the Consumer Protection Act.

In 2008, the NCDRC in its Order held that Star and Airtel did not disclose the source of the prize money and created an apparent impression that the prize money emanated from them whereas in fact the prize money was paid from the collections obtained by Star and Airtel from SMS received from the participants. This practice amounted to an unfair trade practice and accordingly, Star and Airtel were burdened with punitive damages of Rs. 1 crore and legal costs of Rs. 50,000.

Thereafter, Star India and Airtel had filed their respective appeals before the Hon’ble Supreme Court. The Hon’ble Supreme Court had stayed the operation of the Order of NCDRC on 21.11.2008.

On 23.01.2020, the Supreme Court allowed the appeals filed by Star India and Bharti Airtel and set aside the Order of the NCDRC.

A bench of Justices MM Shantanagoudar and R Subhash Reddy said, “With regard to the award of punitive damages made by the National Commission, the same could not have been done in as much as the complainant in the present case had not prayed for punitive damages in the complaint or proved any actual loss suffered by consumers.”

The plea before the NCDRC had alleged profits from these charges were being shared by Airtel with Star India. The commission said the prize money for the contest was fully or partly covered by revenue earned from SMS charges. Therefore the companies committed “committed an unfair trade practice” and held them jointly liable for punitive damages.

“We are of the view that there is no basis to conclude that the prize money for the HSHS contest was paid directly out of the SMS revenue earned by Airtel, or that Airtel and Star India had colluded to increase the SMS rates so as to finance the prize money and share the SMS revenue, and the finding of the commission of an unfair trade practice rendered by the National Commission on this basis is liable to be set aside,”

Mr. Gaurav Pachnanda, Senior Advocate briefed by Ms. Ruby Singh Ahuja, Senior Partner along with Ms. Swikriti Singhania, Mr. Utkarsh Maria , Ms. Kritika Sachdeva and Mr. Ashutosh P. Shukla from Karanjawala & Co.

Read order here:

[embeddoc url=”https://legaldesire.com/wp-content/uploads/2020/01/Civil-Appeal_6597_2008_judgment_2020-01-23T.pdf” download=”all”]

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                               To begin with, this latest, landmark and laudable judgment authored by Justice Navin Sinha for himself and Justice Krishna Murari of the Apex Court Bench sets the ball rolling in para 2 by first and foremost observing that, “The appellant is aggrieved by orders dated 07.12.2016 and 14.06.2017, rejecting the writ petition as also the review application arising from the same.”

                                         While elaborating in detail, the Bench then observes aptly in para 3 that, “The appellant, during the year 1993 imported 96 tons of the chemical “Acetic Anhydride” under three Bills of Entry bearing nos. 290, 291 and 300 dated 01.12.1993, 01.12.1993 and 14.12.1993 through the Inland Water Container Depot (ICD), Hyderabad under the Advance Licence Scheme. It claimed clearance of the consignment free of import duty in terms of Customs Notification nos. 203/1992, 204/1992, both dated 19.05.1992. The notification contained a scheme permitting import without payment of customs duty subject to fulfillment of certain norms and conditions. The Notification nos. 203/1992 and 204/1992 were amended by a Notification no. 183/1993 dated 25.11.1993, by which the subject imports became liable for duty, the exemption having been withdrawn. The Notification dated 25.11.1993 was further amended by another clarificatory Notification no. 105/1994 dated 18.03.1994 permitting the import of the chemical without customs duty subject to certain terms and conditions. The clarificatory notification was necessitated to obviate the difficulties faced by the importers like the appellant, who had imported the chemical under the advance licence issued by the Director General of Foreign Trade prior to the amendment Notification no. 183/1993 dated 25.11.1993.”

                                             While continuing in the same vein, the Bench then further very rightly points out in para 4 that, “The appellant was allowed to clear the consignments under the aforesaid three Bills of Entry without payment of duty. Subsequently the respondents issued show cause notice under Section 28 (1) of the Customs Act, 1962 with regard to the same consignments as having been imported after 25.11.1993. The appellant made a representation on 20.11.1997 seeking exemption. It was considered favourably in respect of three other consignments under Bill of Entry No. 312 dated 12.09.1993, Bill of Entry No. 28 dated 10.02.1994 and Bill of Entry No. 27 dated 09.02.1994. The entire consignments were imported under the same advance licence. In pursuance of the show cause notice the appellant was held liable to duty by order dated 12.2.1998 with regard to the consignment under three Bills of Entry bearing nos. 290, 291 and 300 dated 01.12.1993, 01.12.1993 and 14.12.1993 respectively though these were also under the same advance licence. The respondents while considering the reply to the show cause notice and fixing liability for payment of customs duty did not make any reference to their notification dated 18.03.1994. The Commissioner (Appeals) on the same reasoning rejected the appeal leading to the institution of the writ application.”

                                         Interestingly enough, it is then disclosed in para 5 that, “Dismissing the writ application, the High Court opined that no mandamus for exemption could be issued. The consignments were admittedly imported after 25.11.1993 and before the clarificatory notification dated 18.03.1994. Thus, there was no arbitrariness on part of the respondent. The appellant preferred a review application inter alia relying upon a Division Bench of the Andhra Pradesh High Court in Shri Krishna Pharmaceuticals Limited vs. Union of India, (2004) 173 ELT 14. Rejecting the plea, the High Court opined that since the appellant did not produce the clarificatory notification along with the writ petition and neither were the respondents aware of the clarificatory notification the appellant was not entitled to any relief.”

                         On the one hand, it is pointed out in para 6 that, “Shri B. Adinarayana Rao, learned senior counsel appearing on behalf of the appellant, submitted that denial of exemption to the consignment actually imported after 25.11.1993 under the advance licence obtained prior to 19.05.1992 notwithstanding the clarificatory notification dated 18.03.1994 holding the appellant liable for customs duty is completely unsustainable. Special Leave Petition (Civil) No. 14288 of 2004 (CC No. 5418/2004) preferred against the order in Shri Krishna Pharmaceuticals Limited (supra) was dismissed. The mere failure to enclose a copy of the notification could not be a ground for denial of relief. Denial of exemption in the facts and circumstances of the case in view of the statutory notifications were per se arbitrary.”

                          On the other hand, it is then just aptly pointed out in para 7 that, “Learned counsel appearing for the State supported the order of the High Court and urged that the consignments having been imported after withdrawal of the exemption and before issuance of the clarificatory notification was justified.”

                                        On the whole, the Bench then observes rightly after listening to both the sides in para 8 that, “We have considered the submissions on behalf of the parties and are of the considered opinion that the order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfillment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of the exemption.”

                                             Most remarkably, it is then very rightly held in para 9 that, “It is unfortunate that the High Court failed to follow its own order in a similar matter. The High Court further gravely erred in holding that the authorities of the State were also unaware of the clarificatory notification and neither did the appellant bring it on record. The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. The State acts through its officer who are given powers in trust. If the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable. In our considered opinion it is absolutely no defence of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved.”

                                  No doubt, it is a brief but brilliantly written judgment. Before concluding, it holds in the last para 11 that, “The impugned orders are therefore held to be unsustainable and are set aside. The appeals are allowed.” Also, it ably cites the relevant case law titled National Insurance Co. Ltd. vs. Jugal Kishore (1988) 1 SCC 626 in para 10 and briefly stated very rightly holds that, “This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised.” There has not even an iota of doubt been left by the Apex Court Bench in this leading case to hold most clearly, convincingly and categorically that, “State, as a litigant, cannot behave as a private litigant, and it has solemn and constitutional duty to assist the court in dispensation of justice.”

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                                      To start with, this notable judgment authored by Justice Deepak Gupta for himself and Justice Aniruddha Bose and delivered on January 13, 2020 sets the ball rolling in para 1 wherein it is observed that, “It’s so sad! We start with a lament because institutions set up to protect children have virtually forsaken them in a fight over their so called jurisdictions.” What more should the Apex Court write right at the outset to express its strongest displeasure on the way in which this ugly squabble broke out between the two top institutions meant to raise their voice in favour of children? The Apex Court has every reason to feel so strongly on this!

                                         Needless to say, it is then pointed out in para 2 that, “India is a signatory to the United Nations Convention on the Rights of the Child, 1989 which makes it obligatory upon the signatory States to take all necessary steps to protect the rights of the children as set out in the Convention. The Government of India enacted the Juvenile Justice (Care and Protection of Children) Act, 2000. This was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as ‘the JJ Act’).”

                                            To be sure, para 3 then states that, “It was felt expedient to enact a law constituting special commissions to protect the rights of children. Parliament enacted the Commissions for Protection of Child Rights Act, 2005 (hereinafter referred to as ‘the CPCR Act’). The CPCR Act envisages the constitution of a National Commission for Protection of Child Rights (hereinafter referred to as ‘NCPCR/National Commission’) under Section 3 and the State Commissions for Protection of Child Rights (hereinafter referred to as ‘State Commissions’) under Section 17. We shall deal with their respective functions and powers at a later stage but there can be no manner of doubt that these two Commissions – one at the National Level and the other at the State level – are expected to function in a spirit of cooperation. We expect such Commissions to consult, discuss and cooperate with each other while exercising their powers and fulfilling the powers and fulfilling the duties enjoined upon them by the CPCR Act. These two institutions are in the nature of siblings. The goal which they both set out to achieve is the same, viz., protecting children from all sorts of abuse, exploitation etc. We see no reason why there should be any disharmony and lack of coordination between these two institutions. This non-cooperation and lack of coordination can only occur when the persons manning the institutions put their own interests over the interest of the children. It is only when those in-charge of such commissions give themselves so much importance that they forget that they are the creation of statute, the only purpose of which is to protect children.”

                                           While continuing in the same vein and pooh-poohing the internecine squabble between the Commissions, para 4 then goes on to state that, “This case is a classic example where in the fight between the State Commission and the National Commission the children have been, all but forgotten. We are sorry that this Court has to spend its time resolving such disputes. This Court as well as the two major parties litigating before us definitely have better things to do.”

                                  To recapitulate, para 5 then goes on to reveal that, “From the material on record, it appears that news reports were published some time in February, 2017 indicating that a child-care institution based in Jalpaiguri in West Bengal had indulged in large scale trafficking of children. The NCPCR took cognizance of these reports on 03.03.2017 and two members of the NCPCR went to Jalpaiguri on 07.03.2017. They requested the State officials to provide them some information which, according to the NCPCR, was not provided. They finally summoned the Additional Director General of Police (ADGP), Criminal Investigation Department (CID), West Bengal (Respondent no. 1 herein) to appear before the NCPCR. This gentleman, instead of appearing before the NCPCR, chose to file a writ petition challenging the jurisdiction of the NCPCR to summon him. The High Court, by the impugned order dated 29.08.2017, stayed the direction of the NCPCR mainly on the ground that since the State Commission had taken cognizance of the matter on 24.02.2017, the NCPCR had prima facie no jurisdiction.”

                              Going to the root of the matter, para 16 then states that, “In the present case, the dispute is who started inquiry first – whether it was the WBCPCR or the National Commission. As far as the National Commission is concerned, there is no dispute that it started its inquiry on 07.03.2017 when its members visited Jalpaiguri to inquire into the matter. The stand of the National Commission is that they were, for the first time, informed on 24.07.2017 that the State Commission has taken cognizance and is inquiring into the matter even though they had written various letters to the various officials including the District Magistrate and the police officials in this regard. From the list of dates filed by the WBCPCR, it appears that on 12.07.2016 the Director, Child Rights and Trafficking, West Bengal (for short ‘the Director, CRT’) wrote to the District Magistrate, Jalpaiguri seeking a report on the illegal child trafficking there. An inquiry team was formed by the District Magistrate, Jalpaiguri on 0912.2016 and a report was sent to the Director, CRT on 11.01.2017. Thereafter, the Director, CRT passed an order that the Specialised Adoption Agency (for short ‘the SAA’), Jalpaiguri is not functioning as  per the provisions of Adoption Guidelines, 2015 and the JJ Act and 15 children from the SAA Jalpaiguri, run by the North Bengal People’s Development Centre (for short ‘the NBPDC’) were transferred to other institutions. On 17.01.2017, the Central Adoption Resource Authority (for short ‘the CARA’) filed a complaint with the CID, West Bengal. On 22.01.2017, a report appeared in local newspaper about this child trafficking racket. On 15.02.2017, a team was constituted by the CID, West Bengal to investigate the complaint made by the CARA. On 16.02.2017, a team of CID, West Bengal went to Jalpaiguri. On 17.02.2017, a letter was allegedly sent by the Chairperson of  the WBCPCR to the District Magistrate, Jalpaiguri informing that the State Commission had taken cognizance of the report published in the daily newspaper on 22.01.2017. On 19.02.2017, a formal First Information Report (FIR) was registered in the matter. The report dated 11.01.2017, referred to above, was  sent to the WBCPCR on 24.02.2017. Thereafter, news item again appeared on 26.02.2017 and two women officials of the concerned adoption centre were arrested. Admittedly, NCPCR took note of this instance on 03.03.2017 and on 07.03.2017 two members of the NCPCR visited Jalpaiguri to conduct an inquiry.”

                          While rapping the WBCPCR on its knuckles, the Bench of Apex Court then in para 17 minces no words to hold that, “We had requested learned counsel appearing for the WBCPCR to provide the file of WBCPCR in relation to this matter, which was provided. After going through the file, all that we can say is that the file is not maintained like an official file. The papers were kept casually. Except for the noting sheet, the other papers were not tagged. The other papers were also not paginated. In such a file, there can be additions and alterations at any stage. We, therefore, cannot place too much reliance on such a poorly maintained file and direct the WBCPCR to ensure that in future, files, especially of complaints, are maintained in a proper manner. According to the documents which form a part of this file, the WBCPCR took suo motu cognizance of the incident on 30.01.2017 on the basis of the newspapers report dated 22.01.2017. It was stated in the noting sheet that the matter be put up for appropriate action. Though this note is dated 30.01.2017 and was put up to the Chairperson, WBCPCR, it appears that the Chairperson wrote that she should be reminded after 10 days for follow up action. The file was again put up before the Chairperson on 13.02.2017. On 14.02.2017 it was ordered that the District Magistrate/District Children Protection Officer (DCPO) may be asked to submit a report. A draft letter was put up which was approved on 16.02.2017 and dispatched on 17.02.2017. The DCPO, Jalpaiguri sent the report through mail dated 24.02.2017. The matter was again placed before the Chairperson, who directed that the report be kept for records. The next noting on the file is of 15.03.2017. This note of 15.03.2017 has been put up with regard to the visit of the Chairperson and Secretary to Jalpaiguri on 10.03.2017 and 11.03.2017 to assist and monitor the situation after the recent cases of child trafficking. Though, the visit is dated 10.03.2017 and 11.03.2017, the note is put up on 15.03.2017 and approved on the same date. We are unable to understand why the note for the visit was not put up prior to the visit. We have perused the report prepared by the Chairperson of the WBCPCR and find that the report is more in the nature of allegations against the members of the NCPCR. The report virtually does not deal with the issue relating to trafficking of the children. We shall deal with this report at a later stage.”

                        While continuing in the same vein, it is then pointed out in para 18 that, “Even if we accept the record of the WBCPCR to be the gospel truth then also other than using the word ‘takes suo motu cognizance’ on 30.01.2017, the WBCPCR had taken no steps to inquire into the matter, which is the mandate of Section 13(1)(j) of the CPCR Act, till the visit of its Chairperson on 10.03.2017 and 11.03.2017. We make it clear that in every case a personal visit is not required but the manner in which this case has been dealt with leaves much to be desired. We see no reason why, if cognizance was taken on 30.01.2017, it was directed that the matter be placed for reminding the Chairperson to take follow up action after 10 days. These sort of matters brook no delay. Even after the matter was put up, no attempts were made to hold an inquiry. All that was done was to order the District Magistrate/DCPO to submit a report. That report was filed on 24.02.2017 and it was ordered that the report be kept on record. It appears that it is only after the visit of the members of the NCPCR that the WBCPCR actually felt it necessary to itself visit Jalpaiguri and take stock of the situation.” How can all this be overlooked?

                            Moreover, it is then pointed out in para 19 that, “As pointed above, as far as NCPCR is concerned, on 03.03.2017 a communication was sent by the NCPCR to the District Magistrate, Jalpaiguri wherein he was asked to give specific information with regard to the home in question. Thereafter, on 07.03.2017 two members of the NCPCR visited Jalpaiguri and even if the inquiry did not start on 03.03.2017, it definitely started on 07.03.2017. It found various deficiencies especially with regard to non-constitution of Child Welfare Committee (CWC) in New Jalpaiguri District from 23.08.2013-28.08.2015. It also found that ad hoc CWC was functioning which is against the provisions of law. Therefore, the NCPCR sent a letter on 16.03.2017 to the District Magistrate, Jalpaiguri seeking status of registration of homes, status of CWCs etc. On 23.03.2017, the NCPCR sent another letter to the District Magistrate specifically asking whether the WBCPCR had commenced an inquiry into the matter before the visit of the members of the NCPCR or after the initiation of the inquiry by the NCPCR. To this, no reply was given by the District Magistrate. Then, the NCPCR summoned the District Magistrate, Jalpaiguri on 12.04.2017 for personal appearance on 25.04.2017. The District Magistrate did not appear but send some information vide communication dated 21.04.2017. However, in this communication also there is no reply to the specific query as to whether the WBCPCR had initiated an inquiry into the matter. The NCPCR also took no steps for almost two months. On 20.06.2017 the NCPCR sought the following information from the ADGP, CID, West Bengal (respondent no. 1):-

“1. In this case, sale of as many as about 17 children has been mentioned in this case, in which children were sold both in the country and abroad. Since this organization has come in existence, how many children have been adopted through this organization, provide list of those to the Commission.

2. In this case, children were given to Non-Resident Indian and foreign couples both, hence this case seems to be case of international trafficking. Record concerning as to how many children have been given to Non-resident and foreign coupes be made available to the Commission.
3. According to newspaper, forged papers and papers of National Adoption Authority have been used in this crime in forged manner. Copies of papers seized by CID, statement & list/copies of evidence be made available to the Commission.
4. List of all the detained/arrested people in this case, copy of First Information Report, copies of all the investigation reports be provided to the Commission. Copy of the statement of detained people.
5. From the year 2013 to 2015 Child Welfare Committees had not been constituted in District Jalpaiguri in place thereof, Ad hoc Committee had been working. The following-mentioned papers/documents relating to this Committee be made available to the Commission:-
6. Copy of order for constituting ad hoc committee.
7. People included in the ad hoc committee, list of those with their names, posts/designations be made available to the Commission.

iii. Minutes of the meetings convened by ad hoc Committee during its tenure.

1. Decisions about how many children were taken by Ad Hoc Committee, copies of all the case files concerning with all those.

If any charge sheet has been filed in court, then copy thereof.””

                                   What’s more, it is then added in para 20 that, “On the same day i.e. 20.06.2017, the District Magistrate, Jaslpaiguri, was also directed by the NCPCR to give information pertaining to the constitution of ad hoc committee and members of the ad hoc committee. That very day another communication was sent by the NCPCR to the Department of Women & Child Development, West Bengal, to initiate an inquiry into the matter and inform the NCPCR about the report of the Government. According to the NCPCR, no response was received from any of the authorities. Thereafter, another reminder was sent on 13.07.2017. Left with no option, on 20.07.2017, summons were issued to the ADGP, CID, West Bengal to appear before the NCPCR in person on 25.07.2017 along with relevant documents. A communication was also sent to the Chief Secretary, West Bengal on 22.07.2017 asking for information. The ADGP, CID, West Bengal by letter/fax on 24.07.2017 informed the NCPCR that since WBCPCR has already proceeded with the matter, the NCPCR should stay its hand in the present matter. Meanwhile on 21.07.2017, a report was sent by the CID, West Bengal supplying some information but most of the information was not sent. Thereafter, the NCPCR issued summons to the ADGP, CID, West Bengal on 14.08.2017 to appear before the NCPCR on 29.08.2017. The ADGP, CID, West Bengal challenged these summons by filing a writ petition in the Calcutta High Court. The Advocate General of the State appeared for Dr. Rajesh Kumar, ADGP, CID, West Bengal. The High Court vide impugned order, prima facie, came to the conclusion that since the WBCPCR had taken cognizance of the matter on 24.02.2017, the NCPCR is denuded of its jurisdiction over the subject. The High Court, accordingly, stayed the summons.”

                                           While pooh-poohing the endless tussle which only served to worsen the matters further, para 21 then envisages that, “We are constrained to observe that in this clash of egos between the State Commission (WBCPCR) and the National Commission (NPCPCR) for this entire period, other than the police taking action, nothing was done on the administrative side to set matters right.”

                                      Of course, it is then acknowledged in para 22 that, “The police have acted, a case has been filed, accused have been arrested and we are told that most of the children have been reunited with their parents. We are purposely not commenting on the criminal aspects of the matter. We refrain from doing so because any comment from us may affect the trial of the accused who are entitled to a fair and free trial. In fact, since criminal proceedings in respect to the illegal adoptions had already started, no inquiry could actually be conducted by either of the two Commissions with respect to the same. However, the National Commission was definitely entitled to inquire as to why proper CWCs had not been constituted and under what orders were ad hoc CWCs functioning. The Commissions can also inquire into the factual aspects which led to the trafficking of the children, though not the actual crime itself. In fact, we are of the view that such inquiries are necessary so that such events do not occur in the future. In case, the CWCs had been properly constituted may be this unfortunate situation would not have arisen.”

                                              While castigating the shoddy manner in which the matters were dealt with, it is then stipulated in para 23 that, “Though we are of the view that an inquiry into the alleged illegal adoption could not be conducted because a criminal case had already been registered, at the same time, we cannot shut our eyes to the manner in which both the State Commission (WBCPCR), the National Commission (NCPCR) and the senior officials of the State CID have dealt with the matter. We have already commented on the lack of alacrity on the part of the WBCPCR which purportedly took cognizance of the matter on 30.01.2017 but no effective steps were taken to inquire into the matter till 10.03.2017 except calling for a report. The members of the NCPCR visited Jalpaiguri on 07.03.2017 and have recorded the statement of CWC members. According to the statements so recorded, one of the accused, who was Secretary of the NBPDC which was running the concerned SAA, prayed for certificates for 20 children to be declared legally fit for adoption whom they placed before Prospective Adoptive Parents (PAPs) without Legally Fit for Adoption (LFA) Certificates from CWC, Jalpaiguri. According to the statements, the members of the CWC were shocked that the legal procedure had not been followed. According to these members, they complained to the various officials but they were compelled to give certificates that the children were legally fit for adoption. In the absence of the parties who have made the statements, we would not like to make any further comment except to state that if any member of a CWC can be compelled or pressurized to give such a certificate then that member has no business of ever being appointed as member of CWC or in any capacity in a child rights institution.”

                            More significantly, it is then underscored in para 37 that, “As clearly held by us above, both the Commissions have to work for the best interest of the children in a spirit of cooperation. Unfortunately, in this case, there has been no cooperation rather mudslinging at each other. We would like to reiterate and re-emphasise that there are no jurisdictional issues involved.”

                                   Be it noted, it is then held in para 38 that, “In view of the above, we are clearly of the view that Dr. Rajesh Kumar should have furnished the information which appears to now have been furnished by the State authorities. If such information has not been furnished, the present incumbent holding the post of ADGP, CID, West Bengal is directed to furnish the information to the National Commission as well as to Juvenile Justice Committee of the High Court of Calcutta within 15 days from the date of receipt of certified copy of this judgment. The counsel for the State of West Bengal shall inform the present Additional Director General of Police, Criminal Investigation Department, West Bengal of these directions.”

                                            Most significantly, it is then held in para 39 that, “As is evident from the facts narrated above, both the State Commission (WBCPCR) and the National Commission have been woefully lax in the matter. Hence we direct that other than the issues which form part of the criminal case, all other matter relating to the issue in hand and larger issues of appointment of CWCs and heads of CWCs, not only as far as this case is concerned, but also for the entire State of West Bengal, should be monitored by the High Court of Calcutta, preferably by a Bench headed by the Chairperson of the Juvenile Justice Committee of the High Court of Calcutta in a public interest litigation. In furtherance of these directions, we direct the Registry of this Court to send a copy of this judgment to the Registrar General of the Calcutta High Court, who shall place the same before the Hon’ble Chief Justice of the High Court for constitution of an appropriate Bench. We request the Bench so constituted to deal with the matter as per the urgency involved and if required, to establish a fool proof mechanism so that such occurrences do not take place in future.”

                            On a concluding note, the Bench rightly slammed the clash of egos between the State Commission (WBCPCR) and the National Commission (NCPCR) as also the woefully lax approach of them. No doubt, it also very rightly after examining the records concluded that NCPCR had started inquiry before the State Commission (WBCPCR) got involved in this. It also further passed the right directions as mentioned in para 39! No denying or disputing it!

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                              To start with, this noteworthy judgment authored by Justice Navin Sinha for himself and Justice Ashok Bhushan sets the ball rolling by first and foremost observing in para 1 that, “The appellant, a judicial officer of the rank of Additional District and Sessions Judge, assails his order of compulsory retirement dated 03.05.2016 at 56 years of age under Rule 56 (C) of the U.P. Fundamental Rules (hereinafter referred to as ‘the Rules’).”

                                   To recapitulate, it is then narrated in para 2 that, “The appellant while posted as a Chief Judicial Magistrate granted acquittal to the accused on 17.09.2007 in Criminal Case No. 4670 of 2005 “State vs. Mohd. Ayub” under Sections 467, 468, 471, 474, 420, 406 and 120B of the Indian Penal Code. A complaint was lodged against the appellant with regard to the acquittal. After calling for comments from the appellant, and perusing the judgment and the order of reversal in appeal, the Administrative Judge on 24.02.2009 recommended an enquiry. A vigilance enquiry, V.B. Enquiry No. 26/2009, was held by the OSD, Enquiry, High Court of Allahabad. The enquiry report dated 10.05.2012 was adverse to the appellant. His comments were called for on 28.06.2012. On 20.12.2012, the appellant was informed that on basis of the enquiry, a censure entry had been recorded in his character roll. The order of punishment was accepted by the appellant without any challenge. On 01.04.2016, a committee of three Hon’ble Judges constituted for screening of judicial officers for compulsorily retirement under the Rules recommended the compulsory retirement of the appellant which was endorsed by the Full Court on 14.04.2016 leading to the impugned order of compulsory retirement. The challenge laid out by the appellant to his order of retirement before the High Court was unsuccessful and thus the present appeal.”

                                On the one hand, it is pointed out in para 3 that, “Learned senior counsel Shri R Basant, appearing on behalf of the appellant, submitted that since joining the service in 1996-97 as a Civil Judge (Jr. Division) his Annual Confidential Reports (ACRs) till 2014-15 certify his integrity. The quota of cases allocated to the appellant being inadequate, his percentage of work was considered adequate. The adverse remark in 1996-97 for below performance had been expunged. An error of judgment in deciding a criminal case, while discharging judicial functions, cannot ipso facto lead to an inference of dishonesty. There was in fact no material to infer dishonesty or lack of integrity on part of the appellant in granting acquittal in the criminal case. Merely because a different view was possible does not justify the extreme step of compulsory retirement. The order of compulsory retirement being stigmatic in nature, the failure to hold departmental enquiry vitiates the same. The appellant was promoted to the post of Additional District and Sessions Judge on the basis of merit-cum-seniority and was confirmed in 2013. He had also crossed the efficiency bar. The punishment of censure therefore stands obliterated and was irrelevant for the purpose of compulsory retirement. The conclusion that the appellant had lost his utility and efficiency as a judicial officer to be declared deadwood was unsustainable without adequate consideration of his ACRs in the recent past years before retirement, at least from 2012 to 2015. Reliance in support of the submissions was placed on Ram Ekbal Sharma vs. State of Bihar and Anr., (1990) 3 SCC 504; Baikuntha Nath Das and Anr. Vs. Chief District Medical Officer, Baripada and Anr., (1992) 2 SCC 299; P.C. Joshi vs. State of U.P. and Ors., (2001) 6 SCC 491 and Ramesh Chander Singh vs. High Court of Allahabad and Anr., (2007) 4 SCC 247.”

                                    On the other hand, it is then pointed out in para 4 that, “Learned counsel for the respondent contended that the adverse remarks against the appellant for the year 1996-97 was never expunged as the explanation furnished was not found satisfactory by the District Judge which was informed to the appellant on 12.10.1998. His disposal was also found to be inadequate in subsequent years. The complaint against the appellant for granting acquittal was examined at several levels before the impugned action followed. The appellant never questioned the punishment of censure in connection with the very same order of acquittal. The entire service record of the appellant was considered by the Screening Committee and again by the Full Court. The fact that the appellant may have been promoted subsequently is irrelevant for the purpose of consideration of compulsory retirement. Reliance in support of the submissions was placed on Baikuntha Nath Das (supra); Union of India & Ors. vs. K.K. Dhawan, (1993) 2 SCC 56; Union of India & Ors. vs. Duli Chand, (2006) 5 SCC 680; Nawal Singh vs. State of U.P. and Another, (2003) 8 SCC 117; Pyare Mohan Lal vs. State of Jharkhand and Ors., (2010) 10 SCC 693; R.C. Chandel vs. High Court of M.P. and Anr., (2012) 8 SCC 58, and Punjab State Power Corpn. Ltd. and Ors. vs. Hari Kishan Verma (2015) 13 SCC 156.”

                                          To be sure, after considering the version of both the parties, it is then observed in para 5 that, “We have considered the submissions on behalf of the parties and also the precedents sought to be relied upon by them respectively. The High Court also noticed that another vigilance enquiry VB No. 06 of 2009 had also been initiated but was dropped. The enquiry which followed on the complaint against acquittal manifests that the appellant was provided proper opportunity of his defence at every stage. Quite apart from the scrutiny of his service records by the Screening Committee and again by the Full Court, the Division Bench again perused his ACRs and opined as follows:

“We have perused the expunged portion of the annual remarks of the petitioner and found that rating of the petitioner as fair officer has not been expunged. Likewise, in the year 2008-09, 2009-10, 2010-11, the petitioner was posted as Additional District & Sessions Judge, Fast Track Court No. 8, Pratapgarh and his disposal of work prescribed as Additional District Judge, Fast Track Court was found inadequate. Censure entry, recorded against the petitioner and considered by the Screening Committee and Full Court, still has not been expunged. The petitioner has never challenged the said censure entry, therefore, there is no substance in the arguments of the learned counsel for the petitioner that single censure entry relating to integrity could not be considered by the Screening Committee and Full Court. The expositions of law relied upon by the learned counsel for petitioner are of no help for the petitioner. The expositions of law relied upon by the learned counsel for the respondent is squarely applicable to the facts and circumstances of this case.””

                                  Be it noted, it is then observed in para 6 that, “The service records of the appellant have been examined by the Screening Committee, the Full Court as also by the Division Bench of the High Court. The scope for judicial review of an order of compulsory retirement based on the subjective satisfaction of the employer is extremely narrow and restricted. Only if it is found to be based on arbitrary or capricious grounds, vitiated by malafides, overlooks relevant materials, could there be limited scope for interference. The court, in judicial review, cannot sit in judgment over the same as an Appellate Authority. Principles of natural justice have no application in a case of compulsory retirement.”

                                         It would be imperative to mention here that it is then envisaged in para 7 that, “The performance chart, as furnished by the appellant, demonstrates that his assessment from 1996-97 till 2014-15 rates him as a “fair” or “good officer” only, except for one entry of “very good” in the year 2011-12. The submission that his integrity was certified on each occasion leaves us unimpressed. There can hardly be any direct evidence with regard to integrity as far as a judicial officer is concerned. It is more a matter of inference and perceptions based on the conduct of the officer. The inadequacy of the present system of writing ACRs of judicial officers has deficiencies in several ways, was noticed in Registrar General, Patna High Court vs. Pandey Gajendra Prasad and Ors., (2012) 6 SCC 357.”

                                     To put things in perspective, it is then observed in para 8 that, “The complaint against the appellant with regard to the acquittal granted by him was first considered by the Administrative Judge, who was satisfied that it is a matter for further enquiry. The comments of the appellant were called for. A vigilance enquiry was recommended by the Administrative Judge, who obviously was not satisfied with the explanation furnished. The officer holding the vigilance enquiry was also a judicial officer who opined that the act of acquittal by the appellant was not above board. The comments of the appellant were again called for. The Screening Committee consisting of three Hon’ble Judges, on an overall assessment of the appellant’s service record, recommended his compulsory retirement. The Full Court scrutinised the service records of the appellant again while considering the recommendation of the Screening Committee and arrived at the conclusion that it was in public interest to compulsory retire the appellant. It is undisputed that the punishment of censure meted out to the appellant was never assailed by him.”

                                   More significantly, it is then observed in para 13 that, “A person entering the judicial service no doubt has career aspirations including promotions. An order of compulsory retirement undoubtedly affects the career aspirations. Having said so, we must also sound a caution that judicial service is not like any other service. A person discharging judicial duties acts on behalf of the State in discharge of its sovereign functions. Dispensation of justice is not only an onerous duty but has been considered as akin to discharge of a pious duty, and therefore, is a very serious matter. The standards of probity, conduct, integrity that may be relevant for discharge of duties by a careerist in another job cannot be the same for a judicial officer. A judge holds the office of a public trust. Impeccable integrity, unimpeachable independence with moral values embodied to the core are absolute imperatives which brooks no compromise. A judge is the pillar of the entire justice system and the public has a right to demand virtually irreproachable conduct from anyone performing a judicial function. Judges must strive for the highest standards of integrity in both their professional and personal lives.”

                                          Most significantly, it is then held in para 14 that, “It has to be kept in mind that a person seeking justice, has the first exposure to the justice delivery system at the level of subordinate judiciary, and thus a sense of injustice can have serious repercussions not only on that individual but can have its fall out in the society as well. It is therefore absolutely necessary that the ordinary litigant must have complete faith at this level and no impression can be afforded to be given to a litigant which may even create a perception to the contrary as the consequences can be very damaging. The standard or yardstick for judging the conduct of the judicial officer therefore has necessarily to be strict. Having said that it is not every inadvertent flaw or error that will make a judicial officer culpable. The State Judicial Academies undoubtedly has a stellar role to perform in this regard. A bona fide error may need correction and counseling. But a conduct which creates a perception beyond the ordinary cannot be countenanced. For a trained legal mind, a judicial order speaks for itself.”

                                  Finally, it is then held in the last para 15 that, “In conclusion, we are of the considered opinion that the order of compulsory retirement of the appellant calls for no interference. The Appeal is dismissed.”

                                         Before closing, it would be sagacious to draw the right conclusions from this notable judgment. It makes it absolutely clear that it is not every inadvertent flaw or error that will make a judicial officer culpable. A bona fide error may need correction and counseling. But a conduct which creates a perception beyond the ordinary cannot be countenanced! All the judicial officers must always keep what has been stated so explicitly by the Apex Court Bench as it is squarely applicable on them!

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The apex court while approving the ArcelorMittal resolution plan of ₹42,000 crore for Essar Steel ruled that operational creditors can’t be treated at par with financial creditors, a judgement that sets a precedent for other bankruptcy cases.

Arcelor Mittal was advised by the team led by Senior Partner Ms. Ruby Singh Ahuja, Mr .Vishal Gehrana, Mr. Anupm Prakash and Mr. Utkarsh Maria from Karanjawala & Co. along with the team headed by Mr Sudhir Sharma, Mr Abhishek Swaroop, Mr Naman Bagga from L&L Partners.

Read Judgment here:

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The Supreme Court Bench also pulled up the Enforcement Directorate for copy-pasting arguments from Chidambaram’s case without editing. 

“The petition seems to be cut, copy and paste from the petition against P Chidambaram. Shivakumar is referred to as the former Home Minister. This is not the way to treat a citizen”, said Justice Nariman

The Directorate of Enforcement is a law enforcement agency and economic intelligence agency responsible for enforcing economic laws and fighting economic crime in India. It is part of the Department of Revenue, Ministry of Finance, Government Of India.

The SC also issued a notice in the petition filed by Shivakumar seeking quashing of charges against him by the Income Tax department.

The Delhi High Court had on October 23 granted bail to Shivakumar. The ED had moved the Supreme Court challenging the Delhi High Court decision granting bail to DK Shivakumar saying the Congress leader could tamper with the evidence in the case.

The I-T department has accused Shivakumar and his alleged associate SK Sharma of indulging in transactions involving huge amounts of unaccounted money on a regular basis through ‘hawala’ channels with the help of three other accused.

Shivakumar, a seven-time INC MLA in Karnataka, was booked along with Haumanthaiah an employee at Karnataka Bhavan in New Delhi and others for alleged offences under the Prevention of Money Laundering Act (PMLA).

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Cautioning that RTI cannot be used as a tool of surveillance, the top court held that judicial independence has to be kept in mind while dealing with transparency.

“Transparency doesn’t undermine judicial independence,” the Supreme Court said in a unanimous verdict on Wednesday as it upheld the Delhi High Court judgment which ruled that office of the Chief Justice comes under the purview of RTI.

The five-judge constitution bench, headed by Chief Justice Ranjan Gogoi who retires on November 17, also dismissed the three appeals filed by secretary general of the SC and the Central Public Information officer of the apex court. Other members of the bench included Justices NV Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna.

However, bringing the CJI’s office under the RTI would not undermine the independence of the judiciary, said Justice D.Y. Chandrachud, who read out a separate opinion on the case.

“Neither is RTI under Article 19 nor is the right to privacy absolute,” Justice Chandrachud added, saying that all judges and the CJI hold “constitutional positions”.

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A Constitution Bench comprising of CJI Ranjan Gogoi, Justice SA Bobde, Justice DY Chandrachud, Justice Ashok Bhushan and Justice Abdul Nazeer on November 9 has delivered its judgment in the cross-appeals filed by the Hindu and Muslim sides challenging the three-way partition of the disputed 2.77 acres of Ramjanmabhoomi-Babri Masjid land among Ram Lalla, Nirmohi Akhara and the Sunni Waqf Board in September 2010.

In a unanimous judgment, the Bench has ordered that a temple must be constructed at the disputed site and the Muslims must be compensated with five acres of land at a prominent place in Ayodhya. The court also ordered the Central government to formulate a scheme within three months to implement this order.

Quoting the ASI report, the Bench says the underlying structure in the disputed site was not of Islamic origin, however the report does not support whether the temple was demolished, the Bench says.

The court also says the mosque was not built on a vacant land, as claimed by the Muslim parties. There is clear evidence the Hindus believed Ram was born in the disputed site, the CJI say. There is evidence that Ram Chabutra and Sita Rasoi was worshipped by the Hindus even before the British came. However, travelogues and gazetteers cannot be the basis of adjudication of title, the Bench says.

The mosque was neither abandoned nor seceded by the Muslims, the court observes. However, the court says the Muslims could not prove exclusive possession of the property.

All You Need To Know about Babari Masjid Case, Click Here

Read here full judgment: 

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Click Here to Download Hon’ble Allahabad High Court 2010 Verdict

The Ayodhya dispute is one of the most talked about and debated issue in the country. The main issue revolves around access to a site traditionally regarded among Hindus to be the birthplace of the Hindu deity Rama, the history and location of the Babri Mosque at the site, and whether a previous Hindu temple was demolished or modified to create the mosque. The Babri Masjid was then destroyed in the riots in Uttar Pradesh which took place on 6^th December 1992.

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Shri Justice Sharad Arvind Bobde has been a Judge of the Supreme Court since April 12, 2013. Earlier he served as the Chief Justice of the Madhya Pradesh High Court for about six months since October 16, 2012. He has also been an Additional Judge of the Bombay High Court from March 29, 2000 and a Permanent Judge from March 28, 2002.

Shri Justice Bobde, born on April 24, 1956, was enrolled as an Advocate on September 13, 1978. He started his practice at the High Court Bench at Nagpur and the District Court at Nagpur and occasionally at the High Court at Bombay and the Supreme Court of India in civil, constitutional, labor, company, election, and taxation matters. He specialized in constitutional, administrative, company, environmental and election laws. Justice was born in a family of renowned lawyers in Nagpur, where his grandfather was a lawyer followed by his father being an advocate-general of Maharashtra and his elder brother being a senior SC lawyer along with an expert in the Constitutional Law.

After the completion of  graduation from SFS College Nagpur and having completed his LL.B. from  Nagpur University in  the year 1978. Justice was enrolled as an advocate practicing  at the Nagpur Bench of Bombay High Court as well as appeared before the Bombay seat and eventually before the Apex Court  and thereon became a  Senior Advocate in  the year 1998  and dealt with mostly issues pertaining to  civil, constitutional, labour, company law, election and taxation matters while specializing in constitutional, administrative, company, environmental and election laws.

Justice Bobde had also served as an additional judge of Bombay High Court for the year 29 March 2000   from wherein he had joined as a Chief Justice of Madhya Pradesh High Court in the year 16 October 2012  and later on as a Supreme Court Judge on 12 April 2013. 

MONUMENTAL JUDGMENTS

Aadhaar

The three-judge bench who gave the crackling judgment concerning the Adhaar involved Justice Bobde as one of the Judge s who gave ratification to a previous order of the SC by clarifying that an Indian citizen who does not possess an Adhaar Card shall not be deprived of basic services and subsidies from the government.

The Pro-life Issue

The two-judge bench of the SC,  comprised of Justice Bobde as one of the judges to reject a women’s plea of terminating her foetus that was based upon a medical board’s report which specified that the twenty-six week old foetus had a chance of surviving.

Religious sentiments
He along with Justice L. Nageswara Rao had upheld the banning of the Government of Karnataka for a book written by Mate Mahadevi upon the ground that it was outrageous and hurt the religious sentiments of the followers of Lord Basavanna.

Sale of Firecrackers:

Justice along with two other judges of the SC gave a verdict in the concerning issue of air pollution at the NCR while suspending the selling of firecrackers in that area.  

The other landmark judgments delivered by Justice includes right to privacy as a fundamental right of a person and the BCCI Case. 

Case of Sexual Harassment allegation against Justice Gogoi

Due to his immense respect and recognition amongst his peers, he was given the responsibility of handling the sexual harassment case against Justice Gogoi wherein he provided a clean chit to Justice Gogoi.

In future, we all are eagerly waiting for the delivery of judgment in the most awaited case of Ayodhya on November 15. 

Now with the onset of time and changing needs of the society, it is expected and we all are waiting and are thrilled to come across some more monumental  verdicts delivered by Justice and his bench to apply their rational mind and experience while ensuring that justice is captured and do away with the abuse of the process of law.

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