I. Whether the MCI is the competent authority/justified to issue direction disallowing the Appellant to make admissions in the NRI quota for three years? II. Whether the decision in PA Inamdar (supra) operates retrospectively with respect to the letter dated 08.02.2005? III. Whether the decision in PA Inamdar applies to Deemed Universities or only to private colleges?

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No…8381 of 2017 (Arising out of SLP (C) No.21772 of 2012)
MANIPAL UNIVERSITY & ANR.
…. Appellant(s)
Versus
UNION OF INDIA & ANR.
….Respondent(s)
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
The instant Appeal arises from a Writ Petition No.12673 of 2005 filed by Manipal University (formerly known as Manipal Academy of Higher Education and Others), wherein the High Court disposed off the Writ Petition giving effect to the directions of this Court in PA Inamdar v. State of
Maharastra (2005) 6 SCC 537, until suitable law or regulation is made by the University Grants Commission (UGC) or Central Government. Aggrieved, Manipal University has
1
preferred this Appeal.
2. Two medical colleges were established by Manipal Academic Higher Education in 1953 and 1955 at Manipal and Mangalore. In the year 1978, the UGC recommended to the first Respondent to grant status of Deemed University to Manipal Educational Complex consisting of medical & engineering colleges which was rejected on the ground of paucity of funds. The UGC enquired whether the Appellant would be able to raise the resources if permission was granted for admission of foreign and Indian students in the ratio of 60:40 and sought an undertaking to that effect. The Appellant informed the UGC that it would not seek any aid if it was permitted to make admissions in the ratio of 60:40. The first Respondent granted permission to the Appellant on 12.08.1991 to admit 350 foreign students out of total intake of 550 students for that year. 3. The first Respondent declared the Appellant as a Deemed University on 01.06.1993. Two medical colleges, two dental colleges and one nursing college at Manipal and Mangalore were part of the Appellant University. The General Body of the second Respondent considered the continuance of recognition of MBBS degree granted by the Appellant on
2
27.08.2002. The Appellant was asked to show cause why action should not be initiated for making admissions to the NRI quota in excess of 15 per cent of the intake in violation of the directions of this Court. After consideration of the explanation of the Appellant, the Second Respondent by its letter on 27.09.2002 requested the first Respondent to withdraw the recognition of MBBS degree granted by the second Respondent for not following the directions of this Court regarding the admission of NRI/foreign students. The first Respondent did not take any action as recommended by the Second Respondent.
4. Thereafter, the second Respondent by its letter dated 08.02.2005 directed the Appellant not to make admissions in the NRI quota for 37 seats in the year 2005-2006, 37 seats for the year 2006-2007 and 29 seats for the year 2007-2008 in Kasturba Medical College, Manipal. It was stated in the said letter that the said direction was being issued to offset the undue advantage gained by the Appellant by admitting 103 students in MBBS course in excess of the permissible 15 per cent NRI quota. A reference was made to an order passed by this Court on 09.08.2004 in Islamic Academy v.
3
State of Karnataka (2003) 6 SCC 697, wherein permission was granted to private unaided colleges to admit NRI students to the extent of 15 per cent of the available seats. The second Respondent also referred to an order passed by this Court on 30.08.2004 in I.A. Nos.19-20 of in SLP No.11244 of 2004 (R.L. Minority Profession Colleges Association v. State of Karnataka and Ors.). By the said order dated 30.08.2004 this Court permitted admission of NRI/foreign students against 15 per cent of the management quota seats in respect of medical, engineering and dental courses in minority unaided professional colleges.
5. The Appellant challenged the directions issued by the second Respondent by its letter dated 08.02.2005 in the High Court of Karnataka by filing Writ Petition 12673 of 2005. The High Court accepted the contention of the Appellant and held that Section 10-A of the Medical Council Act confers power on the second Respondent to determine the intake capacity only. It was further held that the second respondent did not have the power to regulate admissions to sub categories. According to the High Court, the second Respondent lacked jurisdiction to determine the quota for NRIs/foreign students.
4
The High Court was aware that the letter impugned in the Writ Petition was on 08.02.2005 which was prior to the judgment of this Court in PA Inamdar’s case. However, the High Court held that the directions issued by this Court bind all parties concerned. As the Appellant admitted NRI students in excess of 15 per of the intake capacity, the High Court held that the Appellant was not entitled to the relief prayed for. The said judgment of the High Court is assailed by the Appellant in this Appeal.
6. Dr. Rajeev Dhawan, learned Senior Counsel appearing for the Appellant submitted that the second Respondent lacked jurisdiction to direct reduction of the intake of NRI seats for the year 2005 to 2008. Admittedly, the MCI is not competent to determine and interfere with the admission to sub categories and the internal quota for reserved categories and NRIs. The direction issued by the second Respondent not to make admission to NRI seats amounts to interference with the quota which is liable to declared as illegal as it suffers from the vice of lack of jurisdiction. He further submitted that the High Court erred in holding that the directions issued in PA Inamdar’s case are applicable to the Appellant retrospectively. According to him, the
5
directions issued in PA Inamdar are not applicable to a Deemed University. He also urged that the said directions cannot operate retrospectively.
7. Mr. Vikas Singh, learned Senior Counsel appearing for the second Respondent conceded that the Medical Council of India does not have the power to fix quotas for reserved categories and NRIs. However, Mr. Singh relied upon Regulation 5 of the Medical Council of India Regulations on Graduate Medical Education, 1997 to contend that the selection of students to medical colleges shall be based solely on the merit of the candidates. He submitted that interim orders were passed by this Court from the year 1994 permitting admissions to NRI/foreign students to the extent of 15 per cent of the total intake. He further submitted that in case admissions are made to NRI seats in excess of the 15 per cent of the intake, the quota reserved for other categories will be reduced adversely affecting the merit based selection. He also submitted that the 1997 Regulations empower the second Respondent to issue suitable directions to ensure merit based selections. Therefore, the second Respondent was competent to issue directions to restrict admissions to NRI seats for the years
6
2005 to 2008. He relied upon a judgment of this Court in Mridul Dhar v. Union of India (2008) 17 SCC 435, wherein it was held that excess admission made by an institution in the management quota can be offset by reduction of seats in the succeeding years. He further submitted that there was no need for the second Respondent to challenge the findings of the High Court that Section 10-A of the Medical Council Act does not confer power on the second Respondent to regulate or supervise the admissions to sub categories.
8. The issues before us are:
I. Whether the MCI is the competent authority/justified to issue direction disallowing the Appellant to make admissions in the NRI quota for three years? II. Whether the decision in PA Inamdar (supra) operates retrospectively with respect to the letter dated 08.02.2005? III. Whether the decision in PA Inamdar applies to Deemed Universities or only to private colleges?
9. There is no doubt that the Appellant was granted the status of a Deemed University in the year 1993. There is also no controversy about the directions issued by this Court
7
regarding pegging of the NRI quota in medical colleges at 15 per cent. Admittedly, the Appellant has made admissions to NRI quota beyond 15 per cent. Both sides agree that the Medical Council of India does not have the power to fix the quotas to sub categories within the total intake. The principal question that arises for our consideration is regarding the correctness of the directions issued by the second Respondent to the Appellant not to fill up 103 seats in the category of NRI/foreign students during the years 2005 to 2008. 10.Determination of a quota for NRI seats is beyond the domain of the second Respondent. The direction given by the second Respondent by its letter dated 08.02.2005 directing the Appellant not to make admissions in the NRI quota to the extent of 103 seats during the years 2005 to 2008 amounts to interfering with the quota. We do not agree with the submission made by Mr. Vikas Singh that the second Respondent has power to issue such directions in the interest of merit based selection as provided by Regulation 5 of the 1997 Regulations. It is no doubt true that the second Respondent has a duty to ensure merit based selections. However, no direction can be issued by the second
8
Respondent interfering with the regulation or supervision of sub categories. The direction issued by the second Respondent by its letter dated 08.02.2005 is ultra vires and is liable to be declared illegal. Exercise of power by an authority has to be within the contours conferred by the statute and for the purpose of promoting the objectives of the statute. There is no express power conferred on the second Respondent in the Medical Council of India Act to interfere in allocation of quotas for sub categories. In the facts and circumstances of this case it is not possible to hold that the second Respondent has power to issue directions pertaining to NRI quota even by reasonable implication. It is relevant to refer to a judgment of the House of Lords in Baroness Wenlock v. River Dee Co., (1885) 10 AC 354 at 362: “But I cannot assent to the doctrine which was contended for by Mr. Rigby. Whenever a corporation is created by an Act of Parliament, with reference to the purposes of the Act, and solely with a view to carry on these purposes into execution, I am of opinion, not only that the objects which the Corporation may legitimately pursue must be ascertained from the Act itself, but that the powers which the corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions. That appears to me to be the principle recognised by this House in Ashbury Company v. Riche (Law
9
Rep. 7 H.L. 653) and in Attorney-General v. Great Eastern Railway Company (5 App. Cas. 473)”. 11.There is no dispute that this Court permitted the Medical Colleges to admit NRI students to the extent of 15 per cent of their quota. There is also no dispute that the Appellant made admissions beyond 15 per cent to the NRI quota of the total intake. The question is whether the second Respondent has jurisdiction to restrict admissions to the NRI quota on the ground that the Appellant acted in violation of the interim orders of this Court. The Appellant being a Deemed University is governed by the provisions of the UGC Act and the competent authority to take any action for violation of the provisions of the Act regarding maintenance of standards is the Commission.
12.The 1997 Regulations obligate the second Respondent to ensure merit based selection to admissions in medical colleges. However, the second Respondent cannot issue directions interfering with the quota in the guise of exercising power under Regulation 5 of the said Regulations. It is settled law that what cannot be done directly, cannot be done indirectly. See State of Tamil Nadu and Ors. v. K. Shyam Sunder and Ors. (2011) 8 SCC 737 (Para 43).
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13.As we have held that that the direction issued by the second Respondent in its letter 08.02.2005 is vitiated as it suffers from the vice of lack of jurisdiction, it is not necessary to deal with the other submissions made on behalf of the Appellant. We also take note of the fact that the direction issued by the Medical Council of India was not implemented either for the years 2005 to 2008 or thereafter.
14.For the aforementioned reasons, the direction issued by the second Respondent to the Appellant not to make admissions to the extent of 103 NRI seats for the years 2005 to 2008 is declared ultra vires and without jurisdiction. The Appeal is allowed. No costs. ………………………………….J [S. A. BOBDE]
..………………………………..J [L. NAGESWARA RAO] New Delhi, July 3, 2017
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ITEM NO. 1501 COURT NO. 8 SECTION IV-A (For judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal ©. No(s) 21772/2o12 (Arising out of impugned final judgment and order dated 19.12.2011 in WP No. 12673/2005 passed by the High Court of Karnataka at Bangalore) MANIPAL UNIVERSITY AND ANR. Petitioner(s) VERSUS UNION OF IDNIA AND ANR. Respondent(s) Date : 03/07/2017 This matter was called on for pronouncement of judgment today.
For Petitioner(s) Mr. Lakshmi Raman Singh, Adv. For Respondent(s) Mr. Gaurav Sharma, Adv. Mr. Dhawal Mohan, Adv. Mr. Amandeep Kaur, Adv. Mr. Prateek Bhatia, Adv. Ms. Vara Gaur, Adv. Mr. G.S. Makker, Adv. –-Hon’ble Mr. Justice L. Nageswara Rao pronounced the judgment of the Bench comprising Hon’ble Mr. Justice S.A. Bobde and His Lordship. Leave granted. The appeal is allowed . No costs.
[ Charanjeet Kaur ] [ Indu Kumari Pokhriyal ] A.R.-cum-P.S. Branch Officer [ Signed non-reportable judgment is placed on the file ]
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Posted in Uncategorized

“seat of arbitration and venue of arbitration”

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2841-2843 OF 2017 (@ S.L.P. (Civil) Nos. 22616-22618 of 2016)
Roger Shashoua & Others …Appellant(s) Versus Mukesh Sharma & Others …Respondent(s)
J U D G M E N T
Dipak Misra, J.
Though innumerable facts have been graphically stated in the
petitions seeking leave to appeal as well as in the written note of
submissions, yet regard being had to the centrality of the controversy,
we shall refer to the facts which are absolutely necessary for
adjudication of the lis in question. It may be stated that the High
Court has narrated the facts in detail on various aspects, for it was
deciding a writ petition and a petition preferred under Section 34 of
the Arbitration and Conciliation Act, 1996 (for brevity, ‘the Act’)
together and it was required to advert to the “seat of arbitration and
venue of arbitration” to determine the maintainability of the petition in
the Courts of India. That apart, the High Court was obliged to dwell
upon the territorial jurisdiction of a petition under Section 34 of the
2
Act at Gautam Budh Nagar, Uttar Pradesh or High Court of Delhi, in
case the Courts in India have the jurisdiction to deal with the
objections as postulated under Part I of the Act. Be it noted, a petition
under Section 34 of the Act was filed before the learned District Judge,
Gautam Budh Nagar, Uttar Pradesh who vide order dated 06.07.2011
had not entertained the application on the ground of lack of territorial
jurisdiction and returned it to be filed before the appropriate Court
and the appeal arising therefrom, that is, FAO (D) 1304 of 2011, filed
before the High Court of Allahabad was dismissed on the ground of
maintainability. Thereafter, Writ Petition No. 20945 of 2014 was filed
challenging the order dated 06.07.2011 of the District Judge, Gautam
Budh Nagar. In the meantime, a petition under Section 34 of the Act
came to be filed before the High Court of Delhi.
2. When the matter stood thus, ITE India Pvt. Limited approached
this Court by filing Special Leave Petition (Civil) Nos. 22318-22321 of
2010. On 15.09.2015, the Court passed the following order:
“In course of hearing, we have been apprised that on behalf of ITE India Private Limited, an application under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act’) is pending before the learned Single Judge of the High Court of Delhi. At this juncture, learned counsel for respondent no.2 submitted that he had filed an application under Section 34 of the Act before the learned District Judge, Gautam Budh Nagar, U.P. who had rejected the application to be filed before the proper court. Against the order passed by the District Judge, an FAO, i.e. FAFO (D) No.1304/2011
3
was filed before the High Court of Allahabad, Bench at Allahabad and same has been dismissed on the ground of maintainability. Be it stated, thereafter the 2nd respondent has challenged the order passed by the District Judge, Gautam Budh Nagar, UP in Writ Petition (C) No. 20945 of 2014 titled as International Trade Expo Centre Ltd. vs. Mukesh Sharma & Ors. In our considered opinion, the writ petition and the petition filed under Section 34 of the Act in Delhi High Court should be heard together by one court and accordingly, we transfer the writ petition from Allahabad and accordingly it is ordered that the writ petition be transferred to the High Court of Delhi and be heard by the same learned Judge who is hearing the petition under Section 34 of the Act. The Registrar (Judicial) is directed to send a copy of this order to the Registrar (Judicial) of the High Court of Allahabad for transmitting the record to the High Court of Delhi. A copy of the order be sent to the Registrar General of the High Court of Delhi. The learned Chief Justice of the High Court of Delhi is requested to nominate a Judge who will hear the writ petition as well as the application preferred under Section 34 of the Act. The nominated judge, we request, should to dispose both the matters by the end of November 2015. Let the matter be listed for further hearing on 08.12.2015.” 3. It is worthy to mention that extension of time was sought for by
the parties and was granted. Before the High Court the appellant took
the stand that the application under Section 34 was not maintainable
since Part I of the Act is not applicable regard being had to the
arbitration clause in the agreement from which it is discernible that
the courts in London have jurisdiction. Learned single Judge by the
impugned order came to hold that application filed under Section 34
of the Act is maintainable and the Delhi High Court has the territorial
jurisdiction to deal with the same and accordingly directed the
4
objection to be filed under Section 34 before the Court.
4. We may immediately state here that Special Leave Petition (Civil)
Nos. 22318-22321 of 2010 had been de-tagged vide order dated
15.02.2017 passed by the Court.
5. Regard being had to what we have stated hereinbefore, as
required at present, we shall only dwell upon the applicability of Part I
or Part II of the Act to the controversy in question. If Part I is
applicable, then we will be obliged to advert to the issue of territorial
jurisdiction of Delhi or that of Gautam Budh Nagar, Uttar Pradesh. If
Part II would be applicable, then the said issue will not warrant any
deliberation.
6. Criticising the impugned order, Mr. Rakesh Dwivedi, learned
senior counsel for the appellants contends that the High Court has
fallen into an error in its appreciation of the arbitration clause and
what has been postulated therein and come to hold that the Courts in
India have jurisdiction. It is also canvassed by him that in the
decision delivered between the parties, the commercial court in
London, interpreting the clauses in the agreement, has determined
that the courts in London have jurisdiction and the principle laid therein (Shashoua v. Sharma1) has been accepted in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc.2
1 2009 EWHC 957 (Comm) 2 (2012) 9 SCC 552
5
(BALCO) and further in Enercon (India) Ltd. v. Enercon GmbH3 and,
therefore, the inescapable conclusion has to be that the Courts in
India do not have jurisdiction and consequently Part I of the Act would
not be applicable. Be it noted, the second proposition, as is seen from
the impugned order, was not advanced before the High Court. Be that
as it may, as it involves a pure question of law, we shall advert to the
same.
7. Mr. Chidambaram, learned senior counsel for the respondent, in
his turn, would submit that the arbitration clause specifically provides
that London will be the venue for arbitration and venue can never be
the seat of arbitration that vests jurisdiction in courts situate at
London. It is his further submission that mere stipulation in the
arbitration clause that the proceedings shall be in accordance with
Rules of Conciliation and Arbitration of the International Chambers of
Commerce, Paris is not to be interpreted that the parties had intended
not to be governed by Part I of the Act. It is assiduously propounded by him that the Constitution Bench in BALCO has not approved the judgment in Shashoua and the view expressed by the two-Judge Bench in Enercon (India) Ltd. (supra) to that effect is per incuriam. That apart, the principle laid down in National Thermal Power Corporation v. Singer Company4 which deals with various aspects
relating to covenants of the contract is applicable. It is argued by him 3 (2014) 5 SCC 1 4 (1992) 3 SCC 551
6
that Shashoua arose from an anti-suit injunction and views
expressed therein are tentative and, therefore, cannot earn the status
of a precedent. Lastly, it is urged by him that as the appellants had
approached the Courts in India, they have waived their right to contest
the issue of jurisdiction.
8. To appreciate the controversy, it is necessary to take note of the
fact that the agreement has been executed before delivery of the judgment, that is, 12.9.2012, by the Constitution Bench in BALCO and, therefore, the principle stated in Bhatia International v. Bulk Trading S.A. and another5 is applicable and for the said purpose what has been stated in Bhatia International (supra) has to be appositely appreciated and understood. In Bhatia International
(supra), an application was preferred under Section 9 of the Act before
the learned IIIrd Additional District Judge, Indore, Madhya Pradesh
and the appellant therein had raised the plea of maintainability of
such an application on the ground that Part I of the Act would not
apply where the place of arbitration is not in India. The Court referred
to various provisions of the Act and came to hold thus:
“32. To conclude, we hold that the provisions of Part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part I would compulsorily apply and parties are free to deviate only to the extent permitted by the derogable provisions of Part I. In cases of international commercial arbitrations held out of India provisions of Part 5 (2002) 4 SCC 105
7
I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply.”

9. After recording the conclusion, the three-Judge Bench noted the
stand of the learned counsel appearing for the appellant therein which
finds place in paragraph 33 of the judgment. It is extracted
hereunder:
“33. Faced with this situation Mr Sen submits that, in this case the parties had agreed that the arbitration be as per the Rules of ICC. He submits that thus by necessary implication Section 9 would not apply. In our view, in such cases the question would be whether Section 9 gets excluded by the ICC Rules of Arbitration. Article 23 of the ICC Rules reads as follows: “Conservatory and interim measures 1. Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the Arbitral Tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate. The Arbitral Tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons, or of an award, as the Arbitral Tribunal considers appropriate.
2. Before the file is transmitted to the Arbitral Tribunal, and in appropriate circumstances even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party to a judicial authority for such measures or for the implementation of any such measures ordered by an Arbitral Tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the Arbitral Tribunal. Any such application and any measures taken by the judicial authority must be
8
notified without delay to the Secretariat. The Secretariat shall inform the Arbitral Tribunal thereof.”
10. After so stating, the Court analysed Article 23 of the
International Chamber of Commerce Rules and noted that the said
Rules permit parties to apply to a competent judicial authority for
interim and conservatory measures and, therefore, in such cases an
application could be made under Section 9 of the Act. Eventual
conclusion that was recorded by the three-Judge Bench is as under:
“35. …. in our view a proper and conjoint reading of all the provisions indicates that Part I is to apply also to international commercial arbitrations which take place out of India, unless the parties by agreement, express or implied, exclude it or any of its provisions. Such an interpretation does not lead to any conflict between any of the provisions of the said Act. On this interpretation there are no lacunae in the said Act. This interpretation also does not leave a party remediless. …”
11. In Venture Global Engineering v. Satyam Computer Services Ltd.6 the Court followed the principle stated in Bhatia International (supra). Elucidating the principle of Bhatia International (supra), the Court stated:
“33. The very fact that the judgment holds that it would be open to the parties to exclude the application of the provisions of Part I by express or implied agreement, would mean that otherwise the whole of Part I would apply. In any event, to apply Section 34 to foreign international awards would not be inconsistent with Section 48 of the Act, or any other provision of Part II as a situation may arise, where, even in respect of properties situate in India and where an award would be invalid if opposed to the public
6 (2008) 4 SCC 190
9
policy of India, merely because the judgment-debtor resides abroad, the award can be enforced against properties in India through personal compliance with the judgment-debtor and by holding out the threat of contempt as is being sought to be done in the present case. In such an event, the judgment-debtor cannot be deprived of his right under Section 34 to invoke the public policy of India, to set aside the award. As observed earlier, the public policy of India includes — (a) the fundamental policy of India; or (b) the interests of India; or (c) justice or morality; or (d) in addition, if it is patently illegal. This extended definition of public policy can be bypassed by taking the award to a foreign country for enforcement.”

12. In the said case, the Court scanned the shareholders agreement
and came to hold that Part I of the Act was applicable and hence,
though the award was a foreign award, its legal propriety could be
called in question in India. The said authority, as is reflectible, lays
down that it would be open to the parties to exclude the application of
the provision of Part I by express or implied agreement and unless
there is an express or implied exclusion, the whole of Part I would
apply. The Court, in the said case, adverted to the agreement in
question and eventually expressed the view that the clauses in the
agreement neither expressly nor impliedly excluded the applicability
of Part I of the Act.
13. In Indtel Technical Services (P) Ltd. v. W.S. Atkins Rail Ltd.7,
the designated Judge was called upon to decide the issue of
appointment of an arbitrator. The clause that pertained to settlement
of disputes read as follows:
7 (2008) 10 SCC 308
10
“6. … ‘13. Settlement of disputes 13.1. This agreement, its construction, validity and performance shall be governed by and constructed in accordance with the laws of England and Wales;
13.2. Subject to Clause 13.3 all disputes or differences arising out of, or in connection with, this agreement which cannot be settled amicably by the parties shall be referred to adjudication;
13.3. If any dispute or difference under this agreement touches or concerns any dispute or difference under either of the sub-contract agreements, then the parties agree that such dispute or difference hereunder will be referred to the adjudicator or the courts as the case may be appointed to decide the dispute or difference under the relevant sub-contract agreement and the parties hereto agree to abide by such decision as if it were a decision under this agreement.’”
14. The Court referred to the authority in Bhatia International (supra) and Lesotho Highlands Development Authority v. Impregilo SpA8, and came to hold that it is fairly well settled that
when an arbitration agreement is silent as to the law and procedure to
be followed in implementing the arbitration agreement, the law
governing the said agreement would ordinarily be the same as the law governing the contract itself. The Court referred to Singer Company
(supra) and held that the proposition stated therein lent support to the view it had expressed. Thereafter, it noted that in Bhatia International (supra) this Court had laid down the proposition that
notwithstanding the provisions of Section 2(2) of the Act, indicating
8 (2005) 3 ALL ER 789
11
that Part I of the Act would apply where the place of arbitration is in
India, even in respect of international commercial agreements, which
are to be governed by the laws of another country, the parties would
be entitled to invoke the provisions of Part I of the Act and
consequently the application made under Section 11 thereof would be
maintainable.
15. In the course of hearing we have also been commended to the authority in Citation Infowares Limited v. Equinox Corporation9
wherein the Designated Judge opined that unless there is express or
implied exclusion of the provisions of Part I of the Act, the entire Part I
including Section 11 would be applicable even where the international
commercial agreements are governed by the laws of another country.
16. As we find the principle stated in Bhatia International (supra)
was followed in many an authority till it was prospectively overruled in BALCO. The Constitution Bench in BALCO recorded its conclusion in this manner:
“195. With utmost respect, we are unable to agree with the conclusions recorded in the judgments of this Court in Bhatia International (supra) and Venture Global Engg. (supra). In our opinion, the provision contained in Section 2(2) of the Arbitration Act, 1996 is not in conflict with any of the provisions either in Part I or in Part II of the Arbitration Act, 1996. In a foreign-seated international commercial arbitration, no application for interim relief would be maintainable under Section 9 or any other provision, as applicability of Part I of the Arbitration Act, 1996 is limited to
9 (2009) 7 SCC 220
12
all arbitrations which take place in India. Similarly, no suit for interim injunction simpliciter would be maintainable in India, on the basis of an international commercial arbitration with a seat outside India.
196. We conclude that Part I of the Arbitration Act, 1996 is applicable only to all the arbitrations which take place within the territory of India.”

17. After expressing so, the Court took note of the fact that the Bhatia International (supra) has been followed by all the High
Courts as well as by this Court on numerous occasions and, in fact, judgment rendered on 10.01.2008 in Venture Global Engineering (supra) had followed the ratio laid down in Bhatia International
(supra). The Constitution Bench, as is manifest, declared the
principles stated by it to be applicable prospectively to all the
arbitration agreements executed from the date of the delivery of the
judgment.
18. After the said judgment was delivered, the issue arose before this
Court whether the parties to the agreement have expressly or
impliedly excluded Part I of the Act. Reference to the said authorities
is seemly to appreciate the perspective of this Court pertaining to
exclusion of Part I of the Act. 19. In Reliance Industries Limited and another v. Union of India
10, the order of the High Court allowing the objections preferred by the
Union of India pertaining to arbitrability of the claims made by the
10 (2014) 7 SCC 603
13
petitioner therein in respect of royalties, cess, service tax and CAG
audit was rejected and for the said purpose, the Court referred to
various agreements entered into between the parties. The issue that
arose before this Court is whether Part I of the Act was excluded or
not. The Court reproduced the relevant part of Article 33 and the
clause that dealt with final partial award as to “seat”. It took note of
the fact that jurisdiction of the High Court of Delhi was invoked by the
Union of India contending, inter alia, that the terms of the PSCs
entered would manifest an unmistakable intention of the parties to be
governed by the laws of India and more particularly the Arbitration
and Conciliation Act, 1996; that the contracts were signed and
executed in India; that the subject matter of the contracts were
performed within India; and that the contract stipulated that they will
be governed and interpreted in accordance with the laws of India.
Various other clauses were pressed into service to stress upon the
availability of jurisdiction in courts of India. The Court analyzing the
postulates in the contract in entirety came to hold:
“23. Upon consideration of the entire matter, the High Court has held that undoubtedly the governing law of the contract i.e. proper law of the contract is the law of India. Therefore, the parties never intended to altogether exclude the laws of India, so far as contractual rights are concerned. The laws of England are limited in their applicability in relation to arbitration agreement contained in Article 33. This would mean that the English law would be applicable only with regard to the curial law matters i.e.
14
conduct of the arbitral proceedings. For all other matters, proper law of the contract would be applicable. Relying on Article 15(1), it has been held that the fiscal laws of India cannot be derogated from. Therefore, the exclusion of Indian public policy was not envisaged by the parties at the time when they entered into the contract. The High Court further held that to hold that the agreement contained in Article 33 would envisage the matters other than procedure of arbitration proceedings would be to rewrite the contract. The High Court also held that the question of arbitrability of the claim or dispute cannot be examined solely on the touchstone of the applicability of the law relating to arbitration of any country but applying the public policy under the laws of the country to which the parties have subjected the contract to be governed. Therefore, according to the High Court, the question of arbitrability of the dispute is not a pure question of applicable law of arbitration or lex arbitri but a larger one governing the public policy.”
20. After so stating, the two-Judge Bench referred to Articles 32.1
and 32.2 that dealt with the applicable law and various other aspects
from which it was perceivable that parties had agreed that juridical
seat or legal place of arbitration for the purpose initiated under the
claimants’ notice of arbitration would be London. The Court posed the
question whether such stipulations excluded the applicability of the
Part I of the Act or not. In its ultimate analysis, it repelled the
contention that there had neither been any express nor implied
exclusion of Part I of the Act and ruled:
“43. … In our opinion, the expression ‘laws of India’ as used in Articles 32.1 and 32.2 has a reference only to the contractual obligations to be performed by the parties under the substantive contract i.e. PSC. In other words, the provisions contained in Article 33.12 are not governed by the provisions contained in Article 32.1. It must be
15
emphasised that Article 32.1 has been made subject to the provision of Article 33.12. Article 33.12 specifically provides that the arbitration agreement shall be governed by the laws of England. The two articles are particular in laying down that the contractual obligations with regard to the exploration of oil and gas under the PSC shall be governed and interpreted in accordance with the laws of India. In contradistinction, Article 33.12 specifically provides that the arbitration agreement contained in Article 33.12 shall be governed by the laws of England. Therefore, in our opinion, the conclusion is inescapable that applicability of the Arbitration Act, 1996 has been ruled out by a conscious decision and agreement of the parties. Applying the ratio of law as laid down in Bhatia International it would lead to the conclusion that the Delhi High Court had no jurisdiction to entertain the petition under Section 34 of the Arbitration Act, 1996.”
21. Be it noted, the Court opined that it was unacceptable that seat
of arbitration is not analogous to an exclusive jurisdiction clause. It
observed that once the parties had consciously agreed that juridical
seat of the arbitration would be London and that the agreement would
be governed by the laws of England, it is no longer open to propound
that provisions of Part I of the Act would also be applicable to the arbitration agreement. It referred to the authority in Videocon Industries Limited v. Union of India and another11 and held thus:
“47. … The first issue raised in Videocon Industries Ltd. was as to whether the seat of arbitration was London or Kuala Lumpur. The second issue was with regard to the courts that would have supervisory jurisdiction over the arbitration proceedings. Firstly, the plea of Videocon Industries Ltd. was that the seat could not have been changed from Kuala Lumpur to London only on agreement of the parties without there being a corresponding amendment in the PSC. This plea was accepted. It was held
11 (2011) 6 SCC 161
16
that seat of arbitration cannot be changed by mere agreement of parties. In para 21 of the judgment, it was observed as follows:
“21. Though, it may appear repetitive, we deem it necessary to mention that as per the terms of agreement, the seat of arbitration was Kuala Lumpur. If the parties wanted to amend Article 34.12, they could have done so only by a written instrument which was required to be signed by all of them. Admittedly, neither was there any agreement between the parties to the PSC to shift the juridical seat of arbitration from Kuala Lumpur to London nor was any written instrument signed by them for amending Article 34.12. Therefore, the mere fact that the parties to the particular arbitration had agreed for shifting of the seat of arbitration to London cannot be interpreted as anything except physical change of the venue of arbitration from Kuala Lumpur to London.”
48. The other issue considered by this Court in Videocon Industries Ltd. was as to whether a petition under Section 9 of the Arbitration Act, 1996 would be maintainable in the Delhi High Court, the parties having specifically agreed that the arbitration agreement would be governed by the English law. This issue was decided against the Union of India and it was held that the Delhi High Court did not have the jurisdiction to entertain the petition filed by the Union of India under Section 9 of the Arbitration Act.”
22. It is condign to note here that while discussing about the ratio in Videocon Industries Limited (supra), the Court studiedly scrutinized
the agreement, mainly the relevant parts of Articles 33, 34 and 35 and
opined:
“50. … The arbitration agreement in this appeal is identical to the arbitration agreement in Videocon Industries. In fact, the factual situation in the present appeal is on a stronger footing than in Videocon Industries Ltd. As noticed earlier, in Videocon Industries, this Court concluded that the parties could not have altered the seat of arbitration
17
without making the necessary amendment to the PSC. In the present appeal, necessary amendment has been made in the PSC. Based on the aforesaid amendment, the Arbitral Tribunal has rendered the final partial consent award of 14-9-2011 recording that the juridical seat (or legal place) of the arbitration for the purposes of arbitration initiated under the claimants’ notice of arbitration dated 16-12-2010 shall be London, England. Furthermore, the judgment in Videocon Industries is subsequent to Venture Global. We are, therefore, bound by the ratio laid down in Videocon Industries Ltd.”
23. Explicating the concept of seat of arbitration, the Court observed:
“51. … “123. … ‘… an agreement as to the seat of an arbitration is analogous to an exclusive jurisdiction clause. Any claim for a remedy … as to the validity of an existing interim or final award is agreed to be made only in the courts of the place designated as the seat of arbitration’.”
24. The Court, in the course of discussion, dealt with the principles set out in Dozco India Private Limited v. Doosan Infracore Company Limited12, Sumitomo Heavy Industries Ltd. v. ONGC Ltd.13, Yograj Infrastructure Limited v. Ssang Yong Engineering and Construction Company Limited14 and Enercon (India) Ltd.
(supra) and thereafter opined thus:
“57. In our opinion, these observations in Sulamerica Cia Nacional de Seguros SA v. Enesa Engelharia SA15 are fully applicable to the facts and circumstances of this case. The conclusion reached by the High Court would lead to the chaotic situation where the parties would be left rushing between India and England for redressal of their grievances. The provisions of Part I of the Arbitration Act, 1996 (Indian) are necessarily excluded; being wholly
12 (2011) 6 SCC 179 13 (1998) 1 SCC 305 14 (2011) 9 SCC 735 15 (2013) 1 WLR 102 : 2012 EWCA Civ 638 : 2012 WL 14764
18
inconsistent with the arbitration agreement which provides ‘that arbitration agreement shall be governed by English law’. Thus the remedy for the respondent to challenge any award rendered in the arbitration proceedings would lie under the relevant provisions contained in the Arbitration Act, 1996 of England and Wales. Whether or not such an application would now be entertained by the courts in England is not for us to examine, it would have to be examined by the court of competent jurisdiction in England.”
25. It is patent from the law enunciated in the aforesaid decision is
that stipulations in the agreement are required to be studiedly
analysed and appropriately appreciated for the purpose of arriving at
whether there is express or implied exclusion and further meaning of
the term “seat of arbitration”. The Court has also ruled that it is
necessary to avoid inconsistency between the provisions in the
agreement and Part I of the Act.
26. At this juncture, we may state that there are other subsequent
authorities that have dealt with express or implied exclusion. There
are also authorities which have declined to accept the stance of
implied exclusion. We shall refer to the same at the subsequent stage
when we shall refer to the Share Holders Agreement (SHA) and
appreciate what interpretation needs to be placed on the Clause
relating to arbitration. Prior to that we are disposed to think to address the issue as regards the approval of Shashoua principle in BALCO and the legal acceptability of the observations made by the two-Judge Bench in Enercon (India) Ltd. (supra) or it is per incuriam
19
as is proponed by the learned senior counsel for the respondents.
27. The Constitution Bench in BALCO has referred to the observations in Braes of Doune Wind Farm (Scotland) Ltd. v. Alfred McAlpine Business Services Ltd.16 to lay down the principle
that the observations made in the said case clearly demonstrate that
the detailed examination which is required to be undertaken by the
court is to discern from the agreement and surrounding
circumstances the intention of the parties as to whether a particular
place mentioned refers to the “venue” or “seat” of the arbitration. After
dealing with the principles stated therein, it took note of the fact that the ratio laid down in Alfred McAlpine (supra) has been followed in Shashoua. After stating the facts, it observed that the construction of
the SHA between the parties had fallen for consideration in the said
case. Be it noted, the larger Bench has reproduced few passages from Shashoua case. The analysis made by the Court in BALCO is as
follows:
“110. Examining the fact situation in the case, the Court observed as follows (Shashoua case) :
“The basis for the court’s grant of an anti-suit injunction of the kind sought depended upon the seat of the arbitration. An agreement as to the seat of an arbitration brought in the law of that country as the curial law and was analogous to an exclusive jurisdiction clause. Not only was there agreement to the curial law of the seat, but also to the Courts of the seat having supervisory jurisdiction over the
16 2008 Bus LR D 137 (QBD) : 2008 EWHC 426 (TCC)
20
arbitration, so that, by agreeing to the seat, the parties agreed that any challenge to an interim or final award was to be made only in the courts of the place designated as the seat of the arbitration.
Although, ‘venue’ was not synonymous with ‘seat’, in an arbitration clause which provided for arbitration to be conducted in accordance with the Rules of the ICC in Paris (a supranational body of rules), a provision that ‘the venue of arbitration shall be London, United Kingdom’ did amount to the designation of a juridical seat…….”
In Paragraph 54, it is further observed as follows (Shashoua case):
“There was a little debate about the possibility of the issues relating to the alleged submission by the claimants to the jurisdiction of the High Court of Delhi being heard by that court, because it was best fitted to determine such issues under Indian Law. Whilst I found this idea attractive initially, we are persuaded that it would be wrong in principle to allow this and that it would create undue practical problems in any event. On the basis of what I have already decided, England is the seat of the arbitration and since this carries with it something akin to an exclusive jurisdiction clause, as a matter of principle the foreign court should not decide matters which are for this court to decide in the context of an anti-suit injunction.” [emphasis supplied]
In making the aforesaid observations in (Shashoua case), the Court relied on judgments of the Court of Appeal in C v. D17.”
28. The Constitution Bench analyzed the facts of C v. D (supra)
which related to an order passed under the insurance policy which
provided “any dispute arising under this policy shall be finally and
17 2008 Bus LR 843 : 2007 EWCA Civ 1282 (CA)
21
fully determined in London, England under the provisions of the
English Arbitration Act, 1950 as amended” and that “this policy shall
be governed by and construed in accordance with the internal laws of
the State of New York….” (Bus LR p. 847, para 2). In the said case, a
partial award was made in favour of the claimant. It was agreed that
the partial award is, in England law terms, final as to what it decides
and the defendant sought the tribunal’s withdrawal of its findings.
The defendant also intimated its intention to apply to a Federal Court
applying the US Federal Arbitration Law governing the enforcement of
arbitral award, which was said to permit “vacatur” of an award where
arbitrators have manifestly disregarded the law. It was in consequence
of such intimation that the claimant sought and obtained an interim
anti-suit injunction. The learned Judge rejected the arguments to the
effect that the choice of the law of New York as the proper law of the
contract amounted to an agreement that the law of England should
not apply to proceedings post award. He also rejected a further
argument that the separate agreement to arbitrate contained in
Condition V(o) of the policy was itself governed by New York Law so
that proceedings could be instituted in New York. The learned Judge
granted the claimant a final injunction. The Court of Appeal noted the
submissions on behalf of the defendants and we think it appropriate to reproduce the same as they have been extracted in BALCO:
22
“112. … “14. The main submission of Mr Hirst for the defendant insurer was that the Judge had been wrong to hold that the arbitration agreement itself was governed by English law merely because the seat of the arbitration was London. He argued that the arbitration agreement itself was silent as to its proper law but that its proper law should follow the proper law of the contract as a whole, namely, New York law, rather than follow from the law of the seat of the arbitration, namely, England. The fact that the arbitration itself was governed by English procedural law did not mean that it followed that the arbitration agreement itself had to be governed by English law. The proper law of the arbitration agreement was that law with which the agreement had the most close and real connection; if the insurance policy was governed by New York law, the law with which the arbitration agreement had its closest and most real connection was the law of New York. It would then follow that, if New York law permitted a challenge for manifest disregard of the law, the court in England should not enjoin such a challenge.””
29. The finding of the Court of Appeal on the said submission which
has been noted by the Constitution Bench is as under:
“112. … “16. I shall deal with Mr Hirst’s arguments in due course but, in my judgment, they fail to grapple with the central point at issue which is whether or not, by choosing London as the seat of the arbitration, the parties must be taken to have agreed that proceedings on the award should be only those permitted by English law. In my view they must be taken to have so agreed for the reasons given by the Judge. The whole purpose of the balance achieved by the Bermuda Form (English arbitration but applying New York law to issues arising under the policy) is that judicial remedies in respect of the award should be those permitted by English law and only those so permitted. Mr Hirst could not say (and did not say) that English judicial remedies for lack of jurisdiction on procedural irregularities under Sections 67 and 68 of the Arbitration Act, 1996 were not permitted; he was reduced to saying that New York judicial remedies were also permitted. That, however, would be a recipe for litigation and (what is worse) confusion which cannot have been intended by the parties. No doubt New
23
York law has its own judicial remedies for want of jurisdiction and serious irregularity but it could scarcely be supposed that a party aggrieved by one part of an award could proceed in one jurisdiction and a party aggrieved by another part of an award could proceed in another jurisdiction. Similarly, in the case of a single complaint about an award, it could not be supposed that the aggrieved party could complain in one jurisdiction and the satisfied party be entitled to ask the other jurisdiction to declare its satisfaction with the award. There would be a serious risk of parties rushing to get the first judgment or of conflicting decisions which the parties cannot have contemplated.
17. It follows from this that a choice of seat for the arbitration must be a choice of forum for remedies seeking to attack the award.” 30. Be it noted, on the facts of the case, the Court of Appeal held that
the seat of the arbitration was in England and, accordingly,
entertained the challenge to the award.
31. In Enercon (India) Ltd. (supra), a two-Judge Bench has
observed thus:
“143. Having said so, the High Court examines the question whether the English courts can exercise jurisdictions in support of arbitration between the parties, in view of London being the venue for the arbitration meetings. In answering the aforesaid question, the High Court proceeds on the basis that there is no agreement between the parties as regards the seat of the arbitration, having concluded in the earlier part of the judgment that the parties have intended the seat to be in India. This conclusion of the High Court is contrary to the observations made in Shashoua which have been approvingly quoted by this Court in BALCO in para 110. On the facts of the case, the Court held that the seat of the arbitration was in England and accordingly entertained the challenge to the award.”
24
32. In Reliance Industries Limited10, a two-Judge Bench referred to the decision by the Court of Appeal in C v. D (supra) and opined that it has been specifically approved by the Constitution Bench in BALCO and reiterated in Enercon (India) Ltd. (supra). The Court reproduced the conclusions of the learned Judge who delivered the judgment in C v. D (supra).
33. In Enercon (India) Ltd. (supra), the Court referred to the decision in Shashoua where Cooke, J., analyzing the SHA, had
opined:
“26. The Shareholders Agreement provided that “the venue of arbitration shall be London, United Kingdom” whilst providing that the arbitration proceedings should be conducted in English in accordance with ICC Rules and that the governing law of the Shareholders Agreement itself would be the laws of India. It is accepted by both parties that the concept of the seat is one which is fundamental to the operation of the Arbitration Act and that the seat can be different from the venue in which arbitration hearings take place. It is certainly not unknown for hearings to take place in an arbitration in more than one jurisdiction for reasons of convenience of the parties or witnesses. The claimants submitted that in the ordinary way, however, if the arbitration agreement provided for a venue, that would constitute the seat. If a venue was named but there was to be a different juridical seat, it would be expected that the seat would also be specifically named. Notwithstanding the authorities cited by the defendant, I consider that there is great force in this. The defendant submits however that as “venue” is not synonymous with “seat”, there is no designation of the seat of the arbitration by clause 14.4 and, in the absence of any designation, when regard is had to the parties’ agreement and all the relevant circumstances, the juridical seat must be in India and the curial law must be Indian law.
25
27. In my judgment, in an arbitration clause which provides for arbitration to be conducted in accordance with the Rules of the ICC in Paris (a supranational body of rules), a provision that the venue of the arbitration shall be London, United Kingdom does amount to the designation of a juridical seat. The parties have not simply provided for the location of hearings to be in London for the sake of convenience and there is indeed no suggestion that London would be convenient in itself, in the light of the governing law of the Shareholders Agreement, the nature and terms of that agreement and the nature of the disputes which were likely to arise and which did in fact arise (although the first claimant is resident in the UK).”

34. The learned Judge further observed:
“33. Whilst there is no material before me which would fully support an argument on estoppel, it is interesting to note that at an earlier stage of the history of this matter, the defendant had no difficulty in putting forward London as the seat of the arbitration. On 14th February 2006 the defendant’s lawyers, when writing to the arbitral tribunal stated “the seat of the arbitration is London and the first respondent submits that the curial law of the arbitration is English law. That means the arbitration is governed by the Arbitration Act 1996”. Further, when challenging the appointment of Mr Salve as an arbitrator, in its application to the ICC, the defendant said that “the fact that the present arbitration is an English seated ICC arbitration is undisputed. Accordingly ICC Rules shall be paramount in adjudicating the present challenge. Further, the curial seat of arbitration being London, settled propositions of English law shall also substantially impinge upon the matter. This position is taken without prejudice to the first respondent’s declared contention that the law of the arbitration agreement is Indian law, as also that the substantive law governing the dispute is Indian law”.
34. “London arbitration” is a well known phenomenon which is often chosen by foreign nationals with a different law, such as the law of New York, governing the substantive rights of the parties. This is because of the legislative framework and supervisory powers of the courts here which many parties are keen to adopt. When therefore
26
there is an express designation of the arbitration venue as London and no designation of any alternative place as the seat, combined with a supranational body of rules governing the arbitration and no other significant contrary indicia, the inexorable conclusion is, to my mind, that London is the juridical seat and English law the curial law. In my judgment it is clear that either London has been designated by the parties to the arbitration agreement as the seat of the arbitration or, having regard to the parties’ agreement and all the relevant circumstances, it is the seat to be determined in accordance with the final fall back provision of section 3 of the Arbitration Act.” And again:
“37. None of this has any application to the position as between England and India. The body of law which establishes that an agreement to the seat of an arbitration is akin to an exclusive jurisdiction clause remains good law. If the defendant is right, C v D would now have to be decided differently. Both the USA (with which C v D was concerned) and India are parties to the New York Convention, but the basis of the Convention, as explained in C v D, as applied in England in accordance with its own principles on the conflict of laws, is that the courts of the seat of arbitration are the only courts where the award can be challenged whilst, of course, under Article V of the Convention there are limited grounds upon which other contracting states can refuse to recognise or enforce the award once made.
x x x x x
39. In my judgment therefore there is nothing in the European Court decision in the Front Comor which impacts upon the law as developed in this country in relation to anti suit injunctions which prevent parties from pursuing proceedings in the courts of a country which is not a Member State of the European Community, whether on the basis of an exclusive jurisdiction clause, or an agreement to arbitrate (in accordance with the decision in the Angelic Grace [1995] 1 LLR 87) or the agreement of the parties to the supervisory powers of this court by agreeing London as the seat of the arbitration (in accordance with the decision in C v D).”
27
35. Coming back to Enercon (India) Ltd. (supra), the Court referred
to the facts and quoted two passages and then adverted to the
observations made by Cooke, J. and ruled:
“128. In Shashoua case (supra), Cooke, J. concluded that London is the seat, since the phrase “venue of arbitration shall be London, U.K.” was accompanied by the provision in the arbitration clause for arbitration to be conducted in accordance with the Rules of ICC in Paris (a supranational body of rules). It was also noted by Cooke, J. that “the parties have not simply provided for the location of hearings to be in London…”

36. Placing reliance on Reliance Industries Limited10 and Enercon (India) Ltd. (supra), submission of Mr. Rakesh Dwivedi, learned senior
counsel for the appellants – Roger Shashoua and others, is that the
Court has already returned a finding in their favour that the Courts in
London, the seat of arbitration, will have jurisdiction and not the
courts in India.
37. Mr. Chidambaram, learned senior counsel, in this regard
contends that the interim order passed by the English Court in Shashoua is not binding on the respondent and is against the settled
principles of law in India. According to him, the observations by the
English Court holding that “When therefore there is an express
designation of the arbitration venue as London and no designation of
any alternative place as the seat, combined with a supernational body
of rules governing the arbitration and no other significant contrary
28
indicia, the inexorable conclusion is, to my mind, that London is the
juridical seat and English law the curial law” is contrary to the principles stated in Bhatia International (supra). He has also
pointed out that the view that “… in an arbitration clause which
provides for arbitration to be conducted in accordance with the Rules
of the ICC in Paris (a supernational body of rules), a provision that the
venue of the arbitration shall be London, United Kingdom does
amount to the designation of a juridical seat” is contrary to the Indian
law. He further urged that the lis had arisen from an anti-suit
injunction and the Court itself had observed that a mini trial would be
required, and hence, the said ruling cannot be binding on the parties.
Learned senior counsel would submit that the view expressed in Enercon (India) Ltd. (supra) that the opinion of Justice Cooke, who had simply followed the principles laid down in C v. D (supra),
another anti-suit injunction matter, approvingly quoted by the Constitution Bench in BALCO is not correct and, therefore, conclusion of Enercon (India) Ltd. (supra) to that extent is per incuriam. For the aforesaid purpose, he has commended us to Sundeep Kumar Bafna v. State of Maharashtra and another18 and Fibre Boards Private Limited, Bangalore v. Commissioner of Income Tax, Bangalore19.
38. In Sundeep Kumar Bafna (supra), the Court referred to the
18 (2014) 16 SCC 623 19 (2015) 10 SCC 333
29
Constitution Bench decision in Union of India v. Raghubir Singh20 and Chandra Prakash v. State of U.P.21 and thereafter expressed its
view thus:
“19. It cannot be overemphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.” 39. In Fibre Boards Private Limited, Bangalore (supra), the
two-Judge Bench referred to a passage from G.P. Singh’s Principles of
Statutory Interpretation, 12th Edition and thereafter referred to the principles stated in State of Orissa v. M.A. Tulloch and Co.22 and Rayala Corporation (P) Ltd. v. Director of Enforcement23. In the said case, the Court followed the principle stated in M.A. Tulloch (supra) and not the one enunciated in Rayala Corporation (P) Ltd.
(supra). The submission of Mr. Chidambaram is that as the principle
20 (1989) 2 SCC 754 21 (2002) 4 SCC 234 22 (1964) 4 SCR 461 : AIR 1964 SC 1284 23 (1969) 2 SCC 412
30
laid down in Shashoua has really not been approved in BALCO and, therefore, the view expressed in Enercon (India) Ltd. to that extent
deserves to be treated as per incuriam.
40. In this regard, we may usefully refer to the decision in State of U.P. v. Synthetics and Chemicals Ltd.24, wherein a two-Judge
Bench of this Court held that one particular conclusion of a Bench of seven-Judges in Synthetics and Chemicals Ltd. and others v. State of U.P. and others 25 as per incuriam. The two-Judge Bench in Synthetics and Chemicals Ltd. (supra) opined thus:
“36. The High Court, in our view, was clearly in error in striking down the impugned provision which undoubtedly falls within the legislative competence of the State, being referable to Entry 54 of List II. We are firmly of the view that the decision of this Court in Synthetics (supra) is not an authority for the proposition canvassed by the assessee in challenging the provision. This Court has not, and could not have, intended to say that the Price Control Orders made by the Central Government under the IDR Act imposed a fetter on the legislative power of the State under Entry 54 of List II to levy taxes on the sale or purchase of goods. The reference to sales tax in paragraph 86 of that judgment was merely accidental or per incuriam and has, therefore, no effect on the impugned levy.” 41. Be it noted, in Vikas Yadav v. State of Uttar Pradesh and others26 the Court has taken note of the aforesaid decisions and
observed that it was not inclined to enter into the doctrine of
precedents and the principle of per incuriam in the said case. That
24 (1991) 4 SCC 139 25 (1990) 1 SCC 109 26 (2016) 9 SCC 541
31
observation was made in the context of the said case. As far as the
present controversy is concerned, we shall proceed to deal with the aspect whether principle stated in Shashoua which was based on the principle laid down in C v. D (supra) has really been accepted
by this Court. If we arrive at an affirmative conclusion, the question of
per incuriam would not arise. We may hasten to add that after such a
deliberation, we shall also deal with the clauses in the agreement and
scrutinize them whether the Courts in India will have jurisdiction or
not and also address to the other contentions raised by the parties.
42. As stated earlier, in Shashoua Cooke, J., in the course of
analysis, held that “London arbitration” is a well known phenomenon
which is often chosen by foreign nationals with a different law, such
as the law of New York, governing the substantive rights of the parties
and it is because of the legislative framework and supervisory powers
of the courts here which many parties are keen to adopt. The learned
Judge has further held that when there is an express designation of
the arbitration venue as London and no designation of any alternative
place as the seat, combined with a supranational body of rules
governing the arbitration and no other significant contrary indicia, the
inexorable conclusion is that London is the juridical seat and English
law the curial law. 43. In BALCO the Constitution Bench referred to Shashoua and
32
reproduced certain paragraphs from the same. To appreciate the
controversy from a proper perspective, we have already reproduced
paragraph 54 of the said judgment which has succinctly stated the
proposition.
44. It has to be borne in mind that the larger Bench gave emphasis
on the aforesaid facts and further took note of the fact that the said judgment had relied upon C v. D (supra). Thereafter, as is manifest, the larger Bench has adverted to in detail the judgment in C v. D (supra). That apart, the Court has referred to Union of India v. McDonnell Douglas Corpn.27 and Naviera Amazonica Peruana S.A. v. Compania International de Seguros del Peru28 and
concluded thus:
“115. Upon consideration of the entire matter, it was observed in SulameRica case29 that – “In these circumstances it is clear to me that the law with which the agreement to arbitrate has its closest and most real connection is the law of the seat of arbitration, namely, the law of England”. (Para 14). It was thereafter concluded by the High Court that English Law is the proper law of the agreement to arbitrate. (Para 15)
116. The legal position that emerges from a conspectus of all the decisions, seems to be, that the choice of another country as the seat of arbitration inevitably imports an acceptance that the law of that country relating to the conduct and supervision of arbitrations will apply to the proceedings.
117. It would, therefore, follow that if the arbitration
27 (1993) 2 Lloyd’s Rep 48 28 (1988) 1 Lloyd’s Rep 116 (CA) 29 SulameRica CIA Nacional De Seguros SA v. Enesa Engenharia SA – Enesa, 2012 WL 14764 : 2012 EWHC 42 (Comm)
33
agreement is found or held to provide for a seat / place of arbitration outside India, then the provision that the Arbitration Act, 1996 would govern the arbitration proceedings, would not make Part I of the Arbitration Act, 1996 applicable or enable Indian Courts to exercise supervisory jurisdiction over the arbitration or the award. It would only mean that the parties have contractually imported from the Arbitration Act, 1996, those provisions which are concerned with the internal conduct of their arbitration and which are not inconsistent with the mandatory provisions of the English Procedural Law/Curial Law. This necessarily follows from the fact that Part I applies only to arbitrations having their seat / place in India.”
45. In Enercon (India) Ltd. (supra), the Court addressed to the issue
of “seat/place of arbitration” and “venue of arbitration” for the purpose
of conferment of exclusive jurisdiction on the Court. The Court
appreciated the point posing the question whether the use of the
phrase “venue shall be in London” actually refers to designation of the
seat of arbitration in London. The Court did not treat London as seat/place of arbitration. The Court referred to Naviera Amazonica (supra), Alfred McAlpine (supra) and C v. D (supra) and then opined:
“123. The cases relied upon by Dr. Singhvi relate to the phrase “arbitration in London” or expressions similar thereto. The same cannot be equated with the term “venue of arbitration proceedings shall be in London.” Arbitration in London can be understood to include venue as well as seat; but it would be rather stretching the imagination if “venue of arbitration shall be in London” could be understood as “seat of arbitration shall be London,” in the absence of any other factor connecting the arbitration to London. In spite of Dr. Singhvi’s seemingly attractive submission to convince us, we decline to entertain the notion that India would not be the natural forum for all
34
remedies in relation to the disputes, having such a close and intimate connection with India. In contrast, London is described only as a venue which Dr. Singhvi says would be the natural forum. 124. In Shashoua, such an expression was understood as seat instead of venue, as the parties had agreed that the ICC Rules would apply to the arbitration proceedings. In Shashoua, the ratio in Naviera and Braes Doune has been followed. In this case, the Court was concerned with the construction of the shareholders’ agreement between the parties, which provided that “the venue of the arbitration shall be London, United Kingdom”. It provided that the arbitration proceedings should be conducted in English in accordance with the ICC Rules and that the governing law of the shareholders’ agreement itself would be the law of India. …” 46. Proceeding further the Court approved the Shashoua’s principle and referred to McDonnell Douglas Corpn. (supra) wherein the principles stated in Naviera Amazonica Peruana S.A. (supra) were
reiterated. Construing the clauses in the agreement, the said authority
has held:
“On the contrary, for the reasons given, it seems to me that by their agreement the parties have chosen English law as the law to govern their arbitration proceedings, while contractually importing from the Indian Act those provisions of that Act which are concerned with the internal conduct of their arbitration and which are not inconsistent with the choice of English arbitral procedural law.”
47. Further proceeding, the two-Judge Bench referred to Sulamerica Cia Nacional de Seguros SA (supra) wherein there has been reference to C v. D (supra) and further reproduced the observations from Sulamerica Cia Nacional de Seguros SA (supra)
35
which read thus:
“In these circumstances it is clear to me that the law with which the agreement to arbitrate has its closest and most real connection is the law of the seat of arbitration, namely, the law of England”.”
48. In the said case, the High Court had concluded that the English
law is the appropriate law of the agreement to arbitrate. This Court
did not accept the view of the High Court by holding thus:
“141. This conclusion is reiterated in para 46 in the following words: (Enercon GmbH case, Bom LR p. 3472) “46. The proposition that when a choice of a particular law is made, the said choice cannot be restricted to only a part of the Act or the substantive provision of that Act only. The choice is in respect of all the substantive and curial law provisions of the Act. The said proposition has been settled by judicial pronouncements in the recent past.”
142. Having said so, the learned Judge further observes as follows: (Enercon GmbH case, p. 3474, para 49) “49. Though in terms of interpretation of Clause 18.3, this Court has reached a conclusion that the lex arbitri would be the Indian Arbitration Act. The question would be, whether the Indian courts would have exclusive jurisdiction. The nexus between the ‘seat’ or the ‘place’ of arbitration vis-à-vis the procedural law i.e. the lex arbitri is well settled by the judicial pronouncements which have been referred to in the earlier part of this judgment. A useful reference could also be made to the learned authors Redfern and Hunter who have stated thus: ‘the place or seat of the arbitration is not merely a matter of geography. It is the territorial link between the arbitration itself and the law of the place in which that arbitration is legally situated….’ The choice of seat also has the effect of conferring exclusive jurisdiction to the courts wherein the seat is situated.” (emphasis supplied) Here the Bombay High Court accepts that the seat carries
36
with it, usually, the notion of exercising jurisdiction of the courts where the seat is located.”
49. After so stating, the two-Judge Bench proceeded to state that the
conclusion of the High Court was contrary to the observations made in
Shashoua which have been approvingly quoted by this Court in
BALCO in para 110.
50. We had earlier extracted extensively from the said judgment, as
we find, the Court after adverting to various aspects, has categorically held that the High Court had not followed Shashoua principle. The various decisions referred to in Enercon (India) Ltd. (supra), the
analysis made and the propositions deduced leads to an indubitable conclusion that Shashoua principle has been accepted by Enercon (India) Ltd. (supra). It is also to be noted that in BALCO, the
Constitution Bench has not merely reproduced few paragraphs from Shashoua but has also referred to other decisions on which Shashoua has placed reliance upon. As we notice, there is analysis of
earlier judgments, though it does not specifically state that “propositions laid down in Shashoua are accepted”. On a clear reading, the ratio of the decision in BALCO, in the ultimate eventuate, reflects that the Shashoua principle has been accepted and the two-Judge Bench in Enercon (India) Ltd. (supra), after succinctly
analyzing it, has stated that the said principles have been accepted by
the Constitution Bench. Therefore, we are unable to accept the
37
submission of Mr. Chidambaram that the finding recorded in Enercon (India) Ltd. (supra) that Shashoua principle has been accepted in BALCO should be declared as per incuriam.
51. At this juncture, we think it necessary to dwell upon the issue whether Shashoua principle is the ratio decidendi of BALCO and Enercon (India) Ltd. (supra) and we intend to do so for the sake of
completeness. It is well settled in law that the ratio decidendi of each case has to be correctly understood. In Regional Manager v. Pawan Kumar Dubey30, a three-Judge Bench ruled:
“7. … It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.” 52. In Director of Settlements, A.P. and others v. M.R. Apparao and another 31, another three-Judge Bench, dealing with the concept
whether a decision is “declared law”, observed:
“7. … But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has “declared law” it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. …”
30 (1976) 3 SCC 334 31 (2002) 4 SCC 638
38
53. In this context, a passage from Commissioner of Income Tax v. Sun Engineering Works (P) Ltd.32 would be absolutely apt:
“39. … It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be complete ‘law’ declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings. …”
54. In this context, we recapitulate what the Court had said in Ambica Quarry Works v. State of Gujarat and others33:
“18. … The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. (See Lord Halsbury in Quinn v. Leathem34). …”
55. From the aforesaid authorities, it is quite vivid that a ratio of a
judgment has the precedential value and it is obligatory on the part of
the Court to cogitate on the judgment regard being had to the facts
exposited therein and the context in which the questions had arisen
and the law has been declared. It is also necessary to read the
judgment in entirety and if any principle has been laid down, it has to
32 (1992) 4 SCC 363 33 (1987) 1 SCC 213 34 (1901) AC 495
39
be considered keeping in view the questions that arose for
consideration in the case. One is not expected to pick up a word or a
sentence from a judgment de hors from the context and understand
the ratio decidendi which has the precedential value. That apart, the
Court before whom an authority is cited is required to consider what
has been decided therein but not what can be deduced by following a
syllogistic process.
56. Tested on the aforesaid principle, we find that question that arose in BALCO and the discussion that has been made by the larger Bench relating to Shashoua and C v. D (supra) are squarely in the
context of applicability of Part I or Part II of the Act. It will not be
erroneous to say that the Constitution Bench has built the
propositional pyramid on the basis or foundation of certain judgments and Shashoua and C v. D (supra) are two of them. It will be inappropriate to say that in Enercon (India) Ltd. (supra) the Court has cryptically observed that observations made in Shashoua have been approvingly quoted by the Court in BALCO in para 110. We are inclined to think, as we are obliged to, that Shashoua principle has been accepted in BALCO as well as Enercon (India) Ltd. (supra) on
proper ratiocination and, therefore, the submission advanced on this
score by Mr. Chidambaram, learned senior counsel for the respondent,
is repelled.
40
57. It is submitted by the learned senior counsel for the respondent that even if the Shashoua principle is applicable, it arises from
interim orders and Cooke, J. has himself observed that a mini trial
would be necessary, therefore, the view expressed in an interim order
and reasons assigned therefor are only tentative and cannot be treated
as the ratio decidendi. For sustaining the said proposition, inspiration has been drawn from the authority in State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha35. According to the learned
senior counsel, in such a situation the judgment cannot bind the
parties.
58. First we shall deal with principle laid down in the aforesaid
authority. In the said case, the Court was dealing with the precedential value of the authorities in Kapila Hingorani (I)36 and Kapila Hingorani (II)37. In that context, the Court said that a
precedent is a judicial decision containing a principle, which forms an
authoritative element termed as ratio decidendi and an interim order
which does not finally and conclusively decide an issue cannot be a
precedent. It further observed that any reasons assigned in support of
such non-final interim order containing prima facie findings,
are only tentative and any interim directions issued on the basis of
such prima facie findings are temporary arrangements to preserve the
35 (2009) 5 SCC 694 36 Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1 37 Kapila Hingorani v. State of Bihar, (2005) 2 SCC 262
41
status quo till the matter is finally decided, to ensure that the matter
does not become either infructuous or a fait accompli before the final hearing. Dealing with the decisions in Kapila Hingorani (II) (supra),
the Court opined that the observations and directions in said case
were interim in nature based on tentative reasons, restricted to the
peculiar facts of that case involving an extraordinary situation of
human rights violation resulting in starvation deaths and suicides by
reason of non-payment of salaries to the employees of a large number
of public sector undertakings for several years, have no value as
precedents. The Court further ruled that the interim directions were
also clearly in exercise of extraordinary power under Article 142 of the
Constitution and, therefore, it was not possible to read such tentative
reasons, as final conclusions.
59. Thus, the analysis made in the said case, the two-Judge Bench
has opined that a precedent is a judicial decision containing a
principle which forms an authoritative element termed as ratio
decidendi and any reasons assigned in support of such interim order
containing prima facie findings are only tentative. There cannot be any
quarrel over the aforesaid proposition of law. However, the controversy
involved in this case has its distinctive characteristics. The
Commercial Court in London, interpreting the same agreement
adverted to earlier judgments (may be in anti-suit injunction) and held
that in such a situation the Courts in London will have jurisdiction.
42
The analysis made therein, as has been stated earlier, has been appreciated in BALCO and Enercon (India) Ltd. (supra) and this
Court has approved the principle set forth in the said case. Once this
Court has accepted the principle, the principle governs as it holds the
field and it becomes a binding precedent. To explicate, what has been stated in Shashoua as regards the determination of seat/place on one
hand and venue on the other having been accepted by this Court, the conclusion in Shashoua cannot be avoided by the parties. It will be
an anathema to law to conceive a situation where this Court is obligated to accept that the decisions in BALCO and Enercon (India) Ltd. (supra) which approve Shashoua principle are binding
precedents, yet with some innate sense of creativity will dwell upon
and pronounce, as canvassed by the learned senior counsel for the
respondent, that inter-party dispute arose in the context of an
anti-suit injunction and, therefore, the same having not attained
finality, would not bind the parties. This will give rise to a total
incompatible situation and certainly lead to violation of judicial
discipline. We cannot conceive it to be permissible. Therefore, without
any hesitation, we reject the said submission.
60. The other ground of attack is that the appellants had themselves
approached the courts in India and, therefore, by their own conduct
applicability of Part I has been accepted by the appellants and the
right to raise the issue of jurisdiction has been waived.
43
61. Mr. Dwivedi, learned senior counsel appearing for the appellants
submits that mere filing of an application under Section 34 of the Act
will not clothe the court with the jurisdiction which it does not
inherently have. It is his further submission that it is settled principle
of law that consent cannot confer jurisdiction. He has commended us to the authorities in Videocon Industries Ltd. (supra), Kanwar Singh Saini v. High Court of Delhi38, Jagmittar Sain Bhagat v. Director, Health Services, Haryana,39, Zuari Cement Ltd. v. Regional Director, Employees’ State Insurance Corporation40 and United Commercial Bank Ltd. v. Workmen41. We have already reproduced paragraph 33 from the Videocon Industries Ltd. (supra)
in a different context.
62. In Kanwar Singh Saini (supra), this Court has laid down that
conferment of jurisdiction is a legislative function and it can neither be
conferred with the consent of the parties nor by a superior court, and
if the court passes an order/or a decree having no jurisdiction over the
matter, it would amount to a nullity as the matter goes to the root of
the cause. For the said purpose the two-Judge Bench has placed reliance upon United Commercial Bank Ltd. (supra), State of Gujarat v. Rajesh Kumar Chimanlal Barot42, Kesar Singh v.
38 (2012) 4 SCC 307 39 (2013) 10 SCC 136 40 (2015) 7 SCC 690 41 AIR 1951 SC 230 42 (1996) 5 SCC 477
44
Sadhu43, Kondiba Dagadu Kadam v. Savitribai Sopan Gujar44 and Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd.45 63. In Zuari Cement Ltd. (supra), the Court ruled that though the
petitioner and the Corporation therein have subjected themselves to
the ESI Court, the same could not confer jurisdiction upon the ESI
Court to determine the question of exemption from the operation of
the Act, for by consent, the parties cannot agree to vest jurisdiction in
a court to try the dispute which the court does not possess.
64. In view of the aforesaid, there cannot be any trace of doubt that
any filing of an application by the appellant in the courts in India can
clothe such courts with jurisdiction unless the law vests the same in
them.
65. Though we have opined that Shashoua principle has been accepted in BALCO and Enercon (India) Ltd. (supra), yet we think it
apt to refer to the clauses in the agreement and scrutinize whether
there is any scope to hold that the courts in India could have
entertained the petition. Clause 14 of the shareholders agreement
(SHA) refers to arbitration. The said clause reads thus:
“14. ARBITRATION
14.1 …. Each party shall nominate one arbitrator and in the event of any difference between the two arbitrators, a third arbitrator/umpire shall be appointed. The arbitration 43 (1996) 7 SCC 711 44 (1999) 3 SCC 722 45 (2000) 6 SCC 650
45
proceedings shall be in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce Paris.
14.2 Proceedings in such arbitrations shall be conducted in the English language.
14.3 The arbitration award shall be substantiated in writing and shall be final and binding on the parties.
14.4 The venue of the arbitration shall be London, United Kingdom.”
66. Clause 17.6 deals with governing law, which reads as follows:
“17.6 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of India.”
67. It is submitted by Mr. Dwivedi, learned senior counsel appearing
for the appellants that the nature of the language employed in the
aforesaid clauses clearly lay the postulate that the arbitration shall be
carried only in London and the seat of arbitration shall be in London. Apart from relying upon the decision in Enercon (India) Ltd. (supra)
for the said purpose, he has copiously referred to the Rules of
Conciliation and Arbitration of the International Chambers of
Commerce. Per contra, Mr. Chidambaram would submit that the
arbitration agreement clearly lays down with regard to the venue and
as has been held by this Court, venue cannot be equated with the
seat/place of arbitration. As we perceive, the clause relating to the
arbitration stipulates that the arbitral proceedings shall be in
46
accordance with the ICC Rules. There is a clause in the SHA that the
governing law of SHA would be laws of India. The aforesaid agreement
has already been interpreted by the English Courts to mean that the
parties have not simply provided for the location of hearing to be in
London.
68. It is worthy to note that the arbitration agreement is not silent as
to what law and procedure is to be followed. On the contrary, Clause
14.1 lays down that the arbitration proceedings shall be in accordance with the Rules of Conciliation and Arbitration of the ICC. In Enercon (India) Ltd. (supra), the two-Judge Bench referring to Shashoua case
accepted the view of Cooke, J. that the phrase “venue of arbitration
shall be in London, UK” was accompanied by the provision in the
arbitration clause or arbitration to be conducted in accordance with
the Rules of ICC in Paris. The two-Judge Bench accepted the Rules of
ICC, Paris which is supernational body of Rules as has been noted by
Cooke, J. and that is how it has accepted that the parties have not
simply provided for the location of hearings to be in London. To
elaborate, the distinction between the venue and the seat remains.
But when a Court finds there is prescription for venue and something
else, it has to be adjudged on the facts of each case to determine the
juridical seat. As in the instant case, the agreement in question has
been interpreted and it has been held that London is not mentioned as
the mere location but the courts in London will have the jurisdiction,
47
another interpretative perception as projected by the learned senior
counsel is unacceptable.
69. Another aspect that was highlighted before us and with immense
force and enthusiasm requires to be adverted to. It has been
submitted that the arbitration agreement has the closest and most
real connection with India and hence, the Courts in India would have the jurisdiction as per the principle laid down in Singer Company
(supra). In the said case, it has been expressed thus:
“16. Where the parties have not expressly or impliedly selected the proper law, the courts impute an intention by applying the objective test to determine what the parties would have as just and reasonable persons intended as regards the applicable law had they applied their minds to the question.46 The Judge has to determine the proper law for the parties in such circumstances by putting himself in the place of a “reasonable man”. He has to determine the intention of the parties by asking himself how a just and reasonable person would have regarded the problem”, The Assunzione47; Mount Albert Borough Council v. Australasian Temperance and General Mutual Life Assurance Society Ltd.48
17. For this purpose the place where the contract was made, the form and object of the contract, the place of performance, the place of residence or business of the parties, reference to the courts having jurisdiction and such other links are examined by the courts to determine the system of law with which the transaction has its closest and most real connection.”
And again:
46 47 48
48
“44. It is important to recall that in the instant case the parties have expressly stated that the laws applicable to the contract would be the laws in force in India and that the courts of Delhi would have exclusive jurisdiction “in all matters arising under this contract”. They have further stated that the “contract shall in all respects be construed and governed according to Indian laws”. These words are wide enough to engulf every question arising under the contract including the disputes between the parties and the mode of settlement. It was in Delhi that the agreement was executed. The form of the agreement is closely related to the system of law in India. Various Indian enactments are specifically mentioned in the agreement as applicable to it in many respects. The contract is to be performed in India with the aid of Indian workmen whose conditions of service are regulated by Indian laws. One of the parties to the contract is a public sector undertaking. The contract has in every respect the closest and most real connection with the Indian system of law and it is by that law that the parties have expressly evinced their intention to be bound in all respects. The arbitration agreement is contained in one of the clauses of the contract, and not in a separate agreement. In the absence of any indication to the contrary, the governing law of the contract (i.e., in the words of Dicey, the proper law of the contract) being Indian law, it is that system of law which must necessarily govern matters concerning arbitration, although in certain respects the law of the place of arbitration may have its relevance in regard to procedural matters.”
70. It is apposite to note that the said decision has been discussed at length in Union of India v. Reliance Industries Limited49. The Court, in fact, reproduced the arbitration clause in Singer Company
(supra) and referred to the analysis made in the judgment and noted
that notwithstanding the award, it was a foreign award, since the
substantive law of the contract was Indian law and the arbitration law
was part of the contract, the arbitration clause would be governed by
49
49
Indian law and not by the Rules of International Chambers of Commerce. On that basis the Court held in Singer Company (supra)
that the mere fact that the venue chosen by the ICC Court or conduct
of the arbitration proceeding was London, does not exclude the
operation of the Act which dealt with the domestic awards under the 1940 Act. The two-Judge Bench in Reliance Industries Limited49 quoted para 53 of Singer Company (supra) and thereafter opined:
“13. It can be seen that this Court in Singer case did not give effect to the difference between the substantive law of the contract and the law that governed the arbitration. Therefore, since a construction of Section 9(b) of the Foreign Awards Act led to the aforesaid situation and led to the doctrine of concurrent jurisdiction, the 1996 Act, while enacting Section 9(a) of the repealed Foreign Awards Act, 1961, in Section 51 thereof, was careful enough to omit Section 9(b) of the 1961 Act which, as stated hereinabove, excluded the Foreign Awards Act from applying to any award made on arbitration agreements governed by the law of India.
14. This being the case, the theory of concurrent jurisdiction was expressly given a go-by with the dropping of Section 9(b) of the Foreign Awards Act, while enacting Part II of the Arbitration Act, 1996, which repealed all the three earlier laws and put the law of arbitration into one statute, albeit in four different parts.”
71. We respectfully concur with the said view, for there is no reason
to differ. Apart from that, we have already held that the agreement in
question having been interpreted in a particular manner by the
English courts and the said interpretation having gained acceptation
by this Court, the inescapable conclusion is that the courts in India
50
have no jurisdiction.
72. In view of the aforesaid analysis, we allow the appeals and set
aside the judgment of the High Court of Delhi that has held that
courts in India have jurisdiction, and has also determined that
Guatam Budh Nagar has no jurisdiction and the petition under
Section 34 has to be filed before the Delhi High Court. Once the
courts in India have no jurisdiction, the aforesaid conclusions are to
be nullified and we so do. In the facts and circumstances of the case,
there shall be no order as to costs.
………………………..J. [Dipak Misra]
………………………J. [R. Banumathi]
New Delhi July 04, 2017
51 ITEM NO.1501 COURT NO.2 SECTION XIV S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s). 2841-2843/2017 ROGER SHASHOUA & ORS. Appellant(s) VERSUS MUKESH SHARMA & ORS. Respondent(s)
Date : 04-07-2017 These appeals were called on for judgment today.
For Appellant(s) Ms. Mukti Chowdhary, AOR
For Respondent(s) Ms. Sneha Kalita, AOR Hon’ble Mr. Justice Dipak Misra pronounced the judgment of the Bench consisting of His Lordship and Hon’ble Mrs. Justice R. Banumathi. The appeals are allowed in terms of the signed reportable judgment. In the facts and circumstances of the case, there shall be no order as to costs.
(Gulshan Kumar Arora) (H.S. Parasher) Court Master Court Master (Signed reportable judgment is placed on the file)

Posted in Uncategorized

criminal contempt, committed by Shri Justice C.S. Karnan.

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION SUO-MOTU CONTEMPT PETITION (CIVIL) NO. 1 OF 2017 IN THE MATTER OF:
In Re, Hon’ble Shri Justice C.S. Karnan
J U D G M E N T Jagdish Singh Khehar, CJI
1. The task at our hands is unpleasant. It concerns actions of a
Judge of a High Court. The instant proceedings pertain to alleged actions
of criminal contempt, committed by Shri Justice C.S. Karnan. The
initiation of the present proceedings suo-motu, is unfortunate. In case
this Court has to take the next step, leading to his conviction and
sentencing, the Court would have undoubtedly travelled into virgin
territory. This has never happened. This should never happen. But
then, in the process of administration of justice, the individual’s identity,
is clearly inconsequential. This Court is tasked to evaluate the merits of
controversies placed before it, based on the facts of the case. It is
expected to record its conclusions, without fear or favour, affection or
ill-will.
2. The factual position which emerged in this case, during the course
of hearing, was almost entirely based on the contents of correspondence
addressed by Justice Karnan. They eventually resulted in his transfer,
1
from the Madras High Court to the High Court of Calcutta. The episode
of his transfer, was preceded by letters written by a series of former Chief
Justices of the Madras High Court, to the then Chief Justice(s) of the
Supreme Court of India, seeking his transfer. The transfer of Shri Justice
C.S. Karnan was also sought, through a joint representation addressed
by 20 sitting Judges of the Madras High Court.
3. During this period, and unconnected with the reasons for seeking
his transfer, the Registrar General of the Madras High Court approached
this Court, highlighting the fact that Shri Justice C.S. Karnan had
initiated suo-motu writ proceedings, wherein, he had stayed
administrative orders passed by the Chief Justice of the Madras High
Court. Having heard the matter, a Bench of this Court, presided over by
the then Chief Justice of India, passed the following directions:
“Permission to file special leave petition is granted. Issue notice. In the meantime, there shall be stay of interim order, dated 30.4.2015 passed in M.P. no. 1 of 2015 in Suo-motu Writ Petition no. (unnumbered) of 2015, until further orders. We restrain the learned Judge, who has initiated proceedings relating to Suo-motu Writ Petition no. (unnumbered) of 2015 pending before the High Court of Judicature at Madras from either hearing or issuing any directions in said petition and other matters connected therewith. There shall not be any interference by any person/authority or learned Judges in completing the process initiated by the High Court for selection and appointment of Junior Divisional Judicial Officers till the disposal of the special leave petition. List after summer vacation.” The petition filed by the Registrar General was later assigned Special
Leave Petition (Civil) no. 14842 of 2015.
2
4. Undeterred by the intervention of this Court, Shri Justice C.S.
Karnan continued to foul mouth his colleagues at the High Court of
Madras, by addressing communications to the highest executive and
judicial authorities. We shall refer to only those available on the record of
the case. We may, for reason of brevity, leave out the past, and
commence with his letter dated 21.8.2015, addressed to the Chief Justice
of the Madras High Court. A perusal of the aforesaid communication,
reveals his dissatisfaction in not having been assigned an appropriate
roster, when he was deputed to the Madurai Bench of the Madras High
Court. Even when he returned to the Principal Bench, after a period of
three months, he was unhappy with the roster assigned to him. In the
instant letter, he also expressed his displeasure, when matters originally
assigned to him, were taken away from his Board, by the Chief Justice of
the Madras High Court, and assigned to other Benches. Besides the
above personal grievances, he made direct and pointed allegations (in his
above letter dated 21.8.2015) against Shri Justice “… V.D. …”, for having
been appointed as a Judge of the High Court, even though (according to
Justice Karnan) he did not possess the requisite academic qualifications
for the position. Indeed, it was alleged, that his academic certificates
were bogus. It was also alleged (in the above letter dated 21.8.2015) that
the Judges of the Division Bench – Dr. Justice “… T.V. …” and Shri
Justice “… C.T.S. …” had not exercised their judicial functions
independently, but had been passing orders, at the asking of the then
3
Chief Justice of the Madras High Court. He also accused the Chief
Justice of the High Court, for having approached this Court, against the
suo-motu orders passed by him. The initiative at the hands of the Chief
Justice of the Madras High Court (to approach the Supreme Court) was
described by him (in the above communication dated 21.8.2015) as most
insulting. Justice Karnan in the above letter, dated 21.8.2015, accused
the Chief Justice of the Madras High Court, for not having included him
in any of the committees constituted for discharging administrative
responsibilities of the High Court. For this reason, he accused the Chief
Justice, for segregating him on account of his belonging to an
under-privileged caste. He also pointed out, that he had made a
complaint in this behalf to the Chairman of the National Commission for
Scheduled Castes and Scheduled Tribes. Justice Karnan also accused
the then Chief Justice of the Madras High Court (in the above
communication) for having created a communal divide in the High Court.
His contention in this behalf was, that he favoured the advanced
communities, while making recommendations for appointment of High
Court Judges, and at the same time ignored the under privileged castes
and tribes, as well as, the minorities. While concluding the letter dated
21.8.2015, Shri Justice C.S. Karnan expressed, that the Chief Justice of
the Madras High Court, had committed offences under the provisions of
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989.
4
5. Another letter of Shri Justice C.S. Karnan, dated 5.2.2016, was
addressed to the Home Secretary of Tamil Nadu. The instant letter was
written to extend protection to a lawyer – Peter Ramesh Kumar, who had
made serious allegations against a few Judges, especially against Shri
Justice “… V.R.S.M. ….”. The communication is interesting, because the
Home Secretary had been directed to treat his letter as a “suo-motu
judicial order”. In the above letter, Justice Karnan had directed the
Registry of the Madras High Court, to assign the suo-motu writ petition (
the letter dated 5.2.2016), a number. The direction contained in the
letter dated 5.2.2016, required the Home Secretary, to arrange adequate
police protection, for the safety of the afore-stated Advocate.
6. Shri Justice C.S. Karnan wrote another letter to the then Chief
Justice of the Madras High Court, on 10.2.2016. In the instant
communication he pointed out, that the High Court had arranged a
function for the inauguration of Regional Centres of the Tamil Nadu State
Judicial Academy, at Coimbatore and Madurai (- on 21.2.2016). He
accused the Chief Justice, of allowing only upper caste Judges, to
participate in the function. It was pointed out, that no representation
from scheduled castes or scheduled tribes, was included in the
celebration. It was alleged, that even though his name was initially
included, it was replaced by a junior upper caste Judge. He highlighted
the fact, that he had been repeatedly agitating on this issue, even on
earlier occasions. In the instant communication dated 10.2.2016, Justice
5
Karnan again declared the Chief Justice of the Madras High Court, an
offender under the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
7. In the above Special Leave Petition (Civil) no. 14842 of 2015 filed
by the Registrar General, High Court of Madras (see paragraph 3 above).
I.A. no. 6 of 2016 was filed on 12.2.2016, by the Registrar General of the
Madras High Court, for urgent directions. In the said application,
reference was first made to the order dated 30.4.2015 passed by Justice
Karnan, which was stayed by this Court on 11.5.2015 (order extracted in
paragraph 3 above). Thereafter, Justice Karnan addressed a letter dated
21.8.2015 to the Chief Justice of the Madras High Court (details narrated
above). Shri Justice C.S. Karnan then addressed a letter dated
10.2.2016, again allegedly in exercise of suo-motu judicial power (details
expressed above). It was also sought to be highlighted in I.A. no. 6 of
2016, that on 10.2.2016, Justice Karnan, had raised objections in
connection with a function organized by the Madras High Court,
alongwith the Tamil Nadu State Judicial Academy to inaugurate Regional
Centres at Coimbatore and Madurai, scheduled for 21.2.2016. Justice
Karnan had alleged therein, that he had been removed as a member of
the Board of Governors of the Judicial Academy. It was sought to be
explained (in I.A. no. 6 of 2016), that the allegations levelled by Shri
Justice C.S. Karnan were misconceived, because he had never been
nominated as a member of the Board of Governors of the Judicial
6
Academy, since its inception in 2001. The contents of I.A. no. 6 of 2016,
also make a reference to another alleged suo-motu judicial order, dated
5.8.2016, passed by Shri Justice C.S. Karnan, directing the Home
Secretary to the State of Tamil Nadu to provide police protection to one
Shri Peter Ramesh Kumar on the ground, that he was facing threats to
his life, from a few Judges of the Madras High Court, wherein he
expressly named Shri Justice “… V.R. ….” (details narrated above). The
background for passing the above order was sought to be explained in
paragraph 10 of I.A. no. 6 of 2016, as under:
“The above order has been passed in the following background, enumerated below: (a) On 16.9.2015, few advocates along with W. Peter Ramesh Kumar barged into Court Hall no. 2 of the Madurai Bench, and stopped willing advocates from addressing the Hon’ble Bench to enforce a boycott call. Moreover, the concerned Advocate threatened the Hon’ble Bench to take any action against him. As a result, the Division Bench was forced to initiate contempt proceedings for his misdemeanors. (b) The above named Advocate was previously hauled up for contempt on several occasions. Three years ago, the High Court directed the State Bar Council to initiate disciplinary proceedings for misconduct. Earlier, a Full Bench of the High Court had found him guilty of contempt and put him on probation for a period of one (1) year. Nonetheless, the concerned Advocate continued to indulge in disruptive practices even during the probation and the matter is pending consideration before the Full Bench. (c) On 30.11.2015, the Suo-motu Cont. Petition (MD) no. 1449 of 2015, registered pursuant to the Order dated 16.9.2015 passed by the Madurai Bench, came up for hearing for the first time before Mr. Justice “… R.S. …” and Hon’ble Mr. Justice “… M.V.V. …” The above named Advocate, appearing in person, prayed for time to file a
7
response. However, the alleged Contemnor made offensive, and casteist allegations against the Presiding Judge of the Division Bench that initiated the proceedings in his Counter Affidavit. The alleged Contemnor also made false and scandalous imputations against certain women lawyers in connection with the learned Judge. He further circulated the contents of the affidavit including the offensive remarks through WhatsApp and Facebook. (d) On 28.1.2016, the Hon’ble Chief Justice of the High Court transferred the Suo-motu Cont. Petition (MD) no. 1449 of 2015 before a specially constituted Bench at the Principal Seat of the High Court. In the meanwhile, the alleged Contemnor continued to circulate scurrilous and objectionable messages against the Hon’ble Judges hearing the aforesaid contempt petition, through social media. (e) On 4.2.2016, the Division Bench framed charges against him in the Criminal Contempt proceedings and served copies of the charges on him. Upon receipt of the copy of the charges, he shouted slogans hailing the deceased leader of a banned organization and also made casteist remarks against the Judges. However, the Bench posted the case to 15.2.2016 for the contemnor’s reply to the charges. (f) On 5.2.2016, the Division Bench of the High Court passed an Order to restrain the concerned Advocate from indulging and circulating offensive and objectionable remarks against the women members of Bar on a Writ Petition moved by a group of six concerned women lawyers being aggrieved by these allegations. Moreover, all four associations of lawyers at Madurai passed resolutions to condemn the scurrilous campaign conducted by the alleged Contemnor and urged the High Court and the State Bar Council to take stringent action against him.” Last of all it was pointed out, that in terms of the roster issued by the
Chief Justice of the Madras High Court, with effect from 1.2.2016,
Justice Karnan was assigned to hear criminal revision – admission and
final hearing, and specially ordered matters. It was pointed out, that
Justice Karnan was passing orders in complete disregard to the roster
8
assigned to him. It was also asserted, that Justice Karnan had been
repeatedly interfering or reopening issues, even in currently pending
matters before other Benches of the High Court. It was highlighted, that
he had even stayed judicial proceedings pending before the High Court.
In I.A. no. 6 of 2016, the Registrar General of the Madras High Court,
sought appropriate directions through the following prayers:
“PRAYER In the premises, it is most respectfully prayed that this Hon’ble Court may be pleased to: (a) stay the operation of Suo-motu Judicial Orders dated 5/8.2.2016 (Annexure A-6) and 10.2.2016 (Annexure A-4) passed by Hon’ble Mr. Justice C.S. Karnan of the High Court of Madras; (b) direct Hon’ble Mr. Justice C.S. Karnan not to exercise any suo-motu powers of the High Court or to direct the Registrar, Madras High Court, to register such suo-motu orders as being pursuant to suo-motu writ petitions; (c) restrain the Hon’ble Mr. Justice C.S. Karnan from hearing or issuing directions or in any manner dealing or connected with the proceedings relating to Suo-motu Judicial Order dated 5/8.2.2016 and 10.2.2016 of the High Court of Judicature at Madras; (d) pass such other and further orders as this Hon’ble Court may deem fit in the facts and circumstances of the matter.” During the course of hearing in the above I.A. no. 6 of 2016 (wherein one
of us – Jagdish Singh Khehar, and Mrs. R. Banumathi, JJ., were
members of the Bench), the Court was informed, that Shri Justice C.S.
Karnan had already received the proposal for his transfer from the High
Court of Madras. Having taken into consideration, the totality of the
9
facts and circumstances of the case, this Court passed the following
order on 15.2.2016:
“Mr. K.K. Venugopal, learned senior counsel having entered appearance on behalf of the petitioner has filed the affidavit of Mr. “… B.H. …”, Registrar-cum-Private Secretary to Hon’ble the Chief Justice, High Court of Madras, dated 14.02.2016. A perusal of the same reveals that Hon’ble Mr. Justice C.S. Karnan has received the proposal of his transfer from the High Court of Madras dated 12.02.2016. Having taken note of the situation, in our view it would be appropriate, that Hon’ble Mr. Justice C.S. Karnan should hear and dispose of only such matters as are specially assigned to him by Hon’ble the Chief Justice of the Madras High Court. It will be open to Hon’ble the Chief Justice of the High Court, not to assign any further administrative/judicial work to him. This would imply, that no other orders shall be passed by Hon’ble Mr. Justice C.S. Karnan, suo-motu or otherwise, in any matter not specially assigned to him. The operation of all or any administrative/judicial order(s) passed by Hon’ble Mr. Justice C.S. Karnan, after the issuance of the proposal of his transfer from the Madras High Court dated 12.02.2016.(unless specially assigned to him, by Hon’ble the Chief Justice), shall remain stayed till further orders. A copy of the instant order shall be furnished to Hon’ble Mr. Justice C.S. Karnan, by the Registrar General of the High Court. It shall be open to the Hon’ble Judge to enter appearance before this Court, in case he is so advised (in respect of the instant/pending matter).” 8. The next relevant letter, was issued by Justice Karnan, on
26.10.2016. It was addressed to the City Police Commissioner, requiring
him to register criminal cases. In the instant letter, Justice Karnan
claimed to be a victim of social and caste discrimination. He also alleged,
that he had been subjected to agony, on account of ragging and
demeaning actions, of Judges of the Madras High Court, spearheaded by
10
Shri Justice “… F.M.I.K. ….”. These allegations of ragging were classified
by him, into four categories, as under:
“The social boycott by the ragging Judges could be classified into four categories as under: 1.The below mentioned Judges directly resorted to insulting me in public premises, namely Mr. Justice “… I.K. …”, Mr. Justice “… N.N. …”, Mr. Justice “… R.S. …”, who is now posted to Jammu & Kashmir, Mr. Justice “… K.N.B. …”, Mr. Justice “… R.S.M. ….” now posted as Judge of the Andhra Pradesh High Court, Mr. Justice “… A.A. …”, Mrs. Justice “… A.J. …”, Mr. Justice “… N.K. …”, Mr. Justice “… S.M.K. …” and Mr. Justice “… M.S. …” The below mentioned three Judges “… M.Y.E. …”, now retired Judge of the Supreme Court of India, Mr. Justice “… R.K.A. …”, now a serving Judge of the Supreme Court and Mr. Justice “… S.K.K. …”, who also extended their cooperation with the ragging Judges of the Madras High Court by operating administrative power and insulted me at the public institution/Judiciary, to that effect I have levelled complaints against them under the Schedule Caste/Schedule Tribes Atrocities Act which are pending enquiry at the respective high dignitary offices. Now I request you to include all the above mentioned three Judges along with the first category of Judges and register a F.I.R. accordingly and precisely. To prove my allegation against the said Judges, material evidences are available on the file of the Registry of the Madras High Court.
2. The second category Judges through indirectly extending their cooperation for social boycott and ragging with their physical presence at the venues.
3. The third category were enjoying by way of laughing and bodily gestures, and
4. The fourth category of Judges maintained their silence and showed their consternation of their actions metered out against me.”
Based on the above insinuations, Justice Karnan made the following
request to the City Commissioner of Police, Chennai:
“Now I request you to register a criminal case against the first category of ragging Justices under the Ragging Act including social boycott. The other erring Judges will be included after
11
investigation. My view of wanting to establish a prosecution case against accused persons/Judges for which I take a major role in the instant case. Your role is only marginal as a competent officer to pursue such major offences to its logical conclusion before the concerned criminal Court. As per my complaint, I will file an affidavit in my name in order to establish the case against the accused persons at an appropriate time. This kind of major offences is indeed a public crime against a Dalit Judge and this matter will also be placed before the Parliament against erring Judges after observing necessary formalities.”
9. Reference also needs to be made to a letter dated 18.1.2017, which
was addressed by Justice Karnan, to the State Public Prosecutor, Madras
High Court, Chennai, wherein he highlighted the fact, that he had passed
a suo-motu judicial order, against Shri Justice “… N.D. …” (now retired),
asserting that Shri Justice “… N.D. …” had produced bogus educational
qualification certificates, for procuring his appointment as Judge of the
Madras High Court. In the above letter, it was also pointed out, that an
enquiry into the matter was pending before the Supreme Court of India.
It was alleged, that the Chief Justice of the Madras High Court, was
shielding the said Shri Justice “… N.D. …”. It was also highlighted, that
Shri Justice “… S.K.K. …” – the then Chief Justice of the Madras High
Court, was facing charges of corruption, and also, for having committed
offences under the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. He also brought out that the then Chief Justice of
the Madras High Court, had engaged Shri Elephant Rajendran, for
appearing before the Supreme Court, despite the fact that the said
Advocate was involved in a murder case. It was also alleged, that a
12
criminal case had also been registered against the said Advocate, for
having committed forgery. In his letter, Justice Karnan had requested
the Public Prosecutor to collect the particulars of the above cases, and to
investigate them with the assistance of top police officials of the State. He
had also requested the State Public Prosecutor, to forward the results of
the investigation to him, so that he could produce the same before the
Supreme Court.
10. Vide another letter dated 23.1.2017, Justice Karnan highlighted
corruption in the High Court, inter alia at the hands of the following
Judges:
“1. Mr. Justice “… S.K.K. …”; 2. Mr. Justice “… S.M.K. …”; 3. Mr. Justice “… V.R.S.M. …”; 4. Mrs. Justice “… C.V. …”; 5. Mr. Justice “… R.S.R. …”; 6. Mr. Justice “… R.K.A. …”; 7. Mr. Justice “… T.S.T. …”; 8. Mr. Justice “… M.Y.I. …”; 9. Mr. Justice “… I.K. …”; 10. Mr. Justice “… A.K. …”; 11. Mr. Justice “… E.D.R. …”; 12. Mr. Justice “… K.N.B. …”; 13. Mr. Justice “… A.A. …”; 14. Mrs. Justice “… A.J. …”; 15. Mr. Justice “… V.D. …”; 16. Mr. Justice “… M.M.S. …”; 17. Mr. Justice “… N.K. …”; 18. Mr. Justice “… N.N. …”; 19. Mr. Justice “… T.R. …”; 20. Mr. Justice “… S. …”.
The instant letter dated 23.1.2017 was endorsed by Justice Karnan to
Shri “… H. …”, Private Secretary-cum-Registrar attached with the Chief
13
Justice of the Madras High Court, to Shri “… P.K. …”, Registrar of the
Madras High Court, and also, to Shri “… S.P. …”, Advocate – President,
Tamil Nadu Advocates Association.
11. The mindset of Shri Justice C.S. Karnan emerges from a
communication dated 3.1.2017, addressed by him to the Prime Minister
of India. It would be appropriate to extract the same hereunder, rather
than recording a summary of its contents, as has been done hitherto
before. The text of the aforesaid communication dated 3.1.2017 is
accordingly reproduced below:
“I request you to please peruse the following:1. Mr. Justice “… T.S.T. …”, the Hon’ble Chief Justice of India comes in for retirement on 3.1.2017. The learned Judge had sent various lists of Judges as proposals for appointment to the High Courts. This list has not included adequate DALIT representation, neither from the minority communities like Muslims and Christians. The proposed list made up of financially sound candidates particularly from the upper caste and from the elite hereditary candidates. This kind of selective choice is not appropriate in a democratic country and unbecoming of the judiciary since it evidently points to discrimination. 2. Mr. Justice “… T.S.T. …”, CJI, at a crucial meeting wherein all the Chief Ministers of various States and Union Territores, and Hon’ble Chief Justices of various High Courts met. After observing the weeping drama of this CJI, the Indian population of 125 crores are unable to determine the attitude of the CJI since he is the top most authority of the entire judiciary, to maintain law and justice form Kanyakumari to Kashmir and all about. 3. The above-mentioned Hon’ble Judge was found weeping, yet in another moment showing outbursts of anger against the Union Government in order to approve the Judges list while at another venue at Gujarat appreciated the Union Government. This kind of unbalance vicious behavior is similar to the chameleon lizard which changes its colour at random through various hues.
14
This erratic behavior by a top dignitary is baffling the minds of vast sections of our Indian populace numbering crores. 4. Mr. Justice “… T.S.T. …”, CJI and Justice “… S.K.K. …”, Chief Justice of Madras High Court conniving prevented me from participating at the inauguration of the Legal Aid Centre in Coimbatore. As such they discriminated me from joining in a public function even though being a Judge of a High Court. Both were Chief Guests presiding over the function. Therefore, I initiated preliminary legal action against them by invoking the Scheduled Caste and Scheduled Tribes Atrocity Act. This bonafide allegation will be proved on the basis of documentary evidence already available on file of the Madras High Court Registry besides circumstantial evidence. 5. Mr. Justice “… T.S.T. …”, who orally ordered the holding of my pronounced judgments to Mr. Justice “… S.K.K. …”, Chief Justice of the Madras High Court without assigning any valid reasons such as enquiry or any legal provisional requirement. As such both have jointly resorted to conniving by insulting me in a public institution. As such both including the Registrar (Judicial), Madras High Court are offenders under the SC/ST Act. Mr. Justice “… T.S.T. …” ordered an enquiry against me on concocted complaints which I am now facing. In that enquiry both the said Judges have been included as co-respondents including the Registrar (Judicial). After the enquiry report being forwarded to Parliament for further discussion in order to determine the actual person for impeachment. Under these circumstances, I request the Hon’ble Prime Minister of India to nullify the perusal and consideration of any tentative plans for a suitable position after retirement by the present CJI. As such the matter may be kept on hold until suitable amends made to all the injustices shown to me. 6. Likewise Mr. Justice “… S.K.K. …”, Chief Justice of the Madras High Court may also be treated similarly as mentioned in (5) for conniving with the CJI and also keep him waiting for any tentative promotion until my accusations are cleared including corruption charges. 7. My critical position restrains me and I am unable to disclose the facts and circumstances of the judiciary in its entirety to the whole Nation in general only because I belong to the fraternity of Judges and its my bounden duty to uphold the dignity and sanctity of our courts at all times. However, the rampant irregularities continuously being perpetrated by many Judges which are incurring incurable injury to the judiciary must be
15
curbed. I cannot say in public what is going on in Madras High Court which has sunk to the bottom most level of degradation and sadly given leverage of support by the Apex Court. 8. As per the Indian Constitutional Law the judiciary is the highest branch in our Constitutional set up, as such other branches such as the Legislature, the Executive including the general public cannot be involved with judiciary orders and administrative methods. As such the judiciary is purely an independent body, so taking advantage of this many Judges are tarnishing the image of the judiciary for their own personal gains. 9. Mr. Justice “… M.K. …”, had committed custodial rape in the public premises particularly in the precincts of his Court chamber with his Law Intern namely Ms. “… D. …”, who is a victim and now restrained to move with society as an Indian high cultured lady, it also spoils her carrier in the legal field and most of all casting a stigma on the child begotten by the said Judge. It is a proved case but Justice “… S.K.K. …”, Chief Justice of Madras High Court is responsible for shielding the errant Judge. Therefore, Mr. Justice “… S.K.K. …’s” administration has fallen to pieces and irreparable deterioration of ethical standards. 10. Mr. Justice “… V.D. …” (retired) had produced bogus educational qualification certificates in obtaining the distinguished post of Judge at the Madras High Court, the crime was proved while he was a sitting Judge at the Madras High Court, however, the Chief Justice Mr. “… S.K.K. …” misused his administrative and judicial powers by protecting the erring Judge until his retirement. This also being a proved case indicating vested interest. 11. Initially I lodged a written complaint before the Madras City Commissioner of Police around one month back against 13 Judges consisting of Supreme Court Judges and Madras High Court Judges, out of this group Mr. Justice “… E.K. …” is ‘captain’ or “spear head” of the accused Judges’ ‘team’. The allegation is that all the mentioned Judges in my complaint had ragged me continuously and persistently for eight years at public premises but the said enquiry is still pending with the Commissioner of Police for necessary action. 12. Mr. Justice”… K.S. …” (retired) the father of Mr. Justice “… S.M.K. …” has established an office in front of the Madras High Court and is always found wandering at the Madras High Court premises soliciting required clients with offers of favourable fruitful orders as consequence of him being an Ex-Judge and exerting good
16
influence for his personal gain; this also being a proved case known to the entire judiciary, advocates besides the general public. Hence, I request you, Hon’ble Prime Minister of India to initiate necessary steps in order to save the Top Most image of the judiciary. To that effect my sincerest request also goes out to all political parties of India to extend their fullest cooperation in maintaining the impeccable image at all times, a mission that you are striving for in order to cure all the ills that has befallen our great nation an importantly that the judiciary maintains an unblemished reputation for perpetuity.” 12. It would be relevant to mention, that at the beginning of the year
2017, the issue of transfer of Shri Justice C.S. Karnan from the Madras
High Court to the High Court of Calcutta, had evoked animated public
debate. At this juncture, his attitude became far more aggressive, than
hitherto before. His insinuations were now more pointed, his prominent
singular focus being his colleague Judges, of the Madras High Court
(present and former), and the Judges of the Supreme Court, who had a
nexus with the Madras High Court, possibly under the belief, that they
were responsible for his tribulations. Included in the list, were also
Judges of the Supreme Court (including Chief Justices), who had an
occasion to deal with matters, involving Justice Karnan. It is essential to
detail some of these communications, in order to understand the content
and nature of the allegations.
13. In the above context, reference may first be made to three
communications dated 27.1.2017. The first of these communications was
addressed to Shri Justice “… M.M.S. …”, a Judge of the Madras High
Court. The contents of the letter indicate, that the concerned Judge
17
invited Shri Justice C.S. Karnan, to the weekly Wednesday-night dinner,
hosted by Judges at the Madurai Bench. It was alleged, that even though
the appointed time was 8.00 p.m., since he had not reached the dinner
venue, he was called on his telephone by Shri Justice “… M.M.S. …”, and
was requested, that the Judges at the dinner venue were waiting for him
(Justice Karnan), and they would commence their dinner, only upon his
arrival. It was alleged, that he (Justice Karnan) reached the venue
immediately thereafter. It was alleged in the above letter, that on
reaching the venue, he observed that most of the Judges had already had
their dinner, while the rest had already commenced their dinner. It was
the assertion of Justice Karnan, that he had been invited only for
irritating him, ragging him, and ridiculing him. Since the above actions
were committed with a malafide intention at a public place, Justice
Karnan wrote in his above letter, that he reserved the right to invoke his
judicial power, and thereby, to take action against the concerned Judges
suo-motu, for their prosecution. A copy of the instant letter was
endorsed to the Prime Minister of India, the Union Law Minister and the
Chief Justice of India.
14. The second letter also dated 27.1.2017, was addressed to Shri
Justice “… A.A. …” (retired). In the instant letter, he accused Justice “…
A.A. …” and Mrs. Justice “… A.J. …” for their role along with the other
Judges, in socially boycotting him (Justice Karnan), and for ragging him.
It was pointed out, that he had lodged a complaint against the said
18
Judges, before the National Commission for Scheduled Castes and
Scheduled Tribes. He also affirmed, that copies of the said complaint,
had been sent to various dignitaries, including the Chief Justice of India.
The pointed insinuation against Shri Justice “… A.A. …” and Mrs. Justice
“… A.J. …” was, that they had developed illicit relations, inasmuch as,
they were behaving as husband and wife. It was also alleged, that the
elder daughter of Mrs. Justice “… A.J. …” had committed suicide by
consuming poison, only to avoid the disgrace suffered by her, on account
of the relationship between Shri Justice “… A.A. …” and her mother Mrs.
Justice “… A.J. …” In the above second letter dated 27.1.2017, Justice
Karnan alleged, that the above mentioned Judges were chargeable under
Section 306 of the Indian Penal Code, alongwith other Judges, namely,
Shri Justice “… S.N. …”, Shri Justice “… N.K. …” and Shri Justice “…
S.M.K. …”, who had misused their judicial power, to prevent the initiation
of criminal prosecution against them. In the instant letter, Justice
Karnan also accused the above two Judges, for having conspired with six
other named sitting Judges of the Madras High Court, for having
instructed the Registry of the High Court, not to extend assistance to
Justice Karnan, in conducting religious ceremonies, after the demise of
his father.
15. The third letter also dated 27.1.2017, was addressed by Justice
Karnan, to the Registrar General of the Madras High Court. It was
alleged therein, that he (Justice Karnan) had already lodged a complaint
19
against Shri Justice “… S.N. …”, who had maintained two concubines,
namely, Mrs. “… J.(M) …” and Mrs. “… R.S. …” It was also alleged, that
the factual position pertaining to this illegal alliance, had been brought to
the notice of the Acting Chief Justice. Through the third communication
dated 27.1.2017, Justice Karnan had also enquired about the stage of
investigation, of the case.
16. In February, 2017, Justice Karnan assumed charge at the Calcutta
High Court. From Calcutta, Justice Karnan addressed an undated letter
to the Prime Minister of India, with copies to the Chief Minister of Tamil
Nadu, the Chief Justice of the Supreme Court of India, the Chief Justice
of the Madras High Court and the Registrar General of the Madras High
Court. Besides ridiculing the system of appointment of Judges since
1990, which (according to him) favoured the upper castes, he adopted the
following stance on the subject of appointments:
“His Excellency, the President of India and Hon’ble Prime Minister of India have given their valid view that transparency and clarity are of paramount importance with the judiciary. Even then the Collegium is maintaining secrecy on the mode of appointment of Judges, since the appointment of Judges are evolving in the documents during the processing, where in unwanted things are actually happening like soliciting of pretty women, heavy liquor consumption, acquisition of mass wealth, forgery and other forms of gross misdemeanor, within a Court of law. I am not casting aspersions but rendering direct accusations for which I am prepared to stand at any time for a confrontation.” 17. Having viewed the unsavory allegations levelled by Justice Karnan
over a span of time, it was prima-facie felt, that his conduct towards a
large number of named Judges and the judiciary in general, had seriously
20
blemished and tarnished the image of those concerned in particular, and
the judiciary as a whole. It was accordingly decided to initiate suo-motu
proceedings, for contempt of Court. A Bench comprising of the seven
senior most Judges of the Supreme Court was constituted, to examine
whether or not Shri Justice C.S. Karnan was guilty of having committed
contempt. On the administrative side, the entire material referred to
above, was entrusted to the Attorney General for India. He was also
requested to assist the Court, in the matter, on the judicial side. On
8.2.2017, the Bench passed the first judicial order:
“1. Issue notice to Shri Justice C.S. Karnan, returnable on 13.02.2017. 2. The Registry is directed to ensure, that a copy of this order, and the letters taken note of while issuing notice, are furnished to Shri Justice C.S. Karnan, during the course of the day, through the Registrar General of the Calcutta High Court. 3. Shri Justice C.S. Karnan, shall forthwith refrain from handling any judicial or administrative work, as may have been assigned to him, in furtherance of the office held by him. He is also directed to return, all judicial and administrative files in his possession, to the Registrar General of the High Court immediately. 4. Shri Justice C.S. Karnan shall remain present in Court in person, on the next date of hearing, to show cause. 5. The learned Attorney General has assisted us during the 2 course of hearing, today. We request him to assist us, during the course of further proceedings in the matter.” 18. Shri Justice C.S. Karnan in response to the order dated 8.2.2017
(extracted above) addressed a letter to the Registrar General of this Court
on 10.2.2017. He expressed the following view, on the initiation of
suo-motu contempt proceedings against him:
“In the above mentioned suo-motu petition it is not maintainable against a sitting Judge of the High Court, further the Suo-motu
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Contempt order passed against me, since I have sent representations to the various Govt. Authorities regarding high irregularities and illegalities occurring at the Judicial Courts. I am also a responsible Judge to control such high irregularities especially corruption and malpractice. I have furnished comprehensive proof of unethical practices happening with the respective Courts. Before obtaining any explanation from me, I wish to state that the Courts have no power to enforce punishment against a sitting Judge of the High Court. This said order does not conform to logic, therefore it is not suitable for execution. The characteristic of this order clearly shows that the upper caste Judges are taking the law in their hands and misusing their judicial power by operating the same against a SC/ST Judge (Dalit) with mala fide intention to get rid of him. Therefore the Suo-motu Contempt Order dated 8.2.2017 is not sustainable under law. On 15.2.2016 I proclaimed a statement in front of the Madras High Court premises which was attended by the Press Media and Electronic Media wherein the crucial statement by me was that Mr. Justice “… S.K.K. …” is the root of all corruption at the above-mentioned Court. To substantiate my proclamation, I even offered to counteract any contempt order he may level against me. However, it is apparent that he was wary of facing the facts. Now, after keeping silence on this crucial issue for over a year, or as the adage which says: “The dust as settled down”, he brought up the issue aspiring himself as a candidate for the elevation to the Apex Court. I now challenge him even at this 11th hour to prove himself being an unblemished Judge so that he may qualify for the elevation as a Supreme Court Judge. Furthermore, I even gave a recent allegation that there were 20 Corrupt Judges at the Madras High Court and that the Hon’ble Justice “… K.K. …” is no. 1, even this accusation was ignored although my complaint is still on file. It is observed that the 7 Judges mentioned above are all out for a Contempt Case against me, presumably to clear the path for Justice Mr. “… S.K.K. …’s” elevation; Please don’t let it be the case of “Locking the stable after the horse has bolted”. The Suo-motu Contempt Order against me a Dalit Judge and restraining my judicial and administrative assignment is unethical and goes against the SC/ST Atrocities Act. It is certainly a National Issue and a wise decision would be to refer the issue to the House of Parliament. On 15.2.2016, I also included in my proclamation that Hon’ble Justice Mr. “… J.S.K. …” and Mrs. Justice “… R.B. …” passed a similar harsh order against me, therefore I am constraint to give a direction to the
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Commissioner of Police, Chennai, to register a criminal case against the both mentioned Hon’ble Judges. Therefore, the present Chief Justice of India is obviously bearing the same prejudice as in the past by passing the same order. Therefore my deep request is to hear the Suo-motu Contempt after retirement of Chief Justice of India. In the meanwhile my administrative work and judicial assignment could be restored. My main contention is only to uproot the corruption prevailing at the Madras High Court, and not to spoil the sanctity and decorum of the Court. The Hon’ble Judge have passed this sort of an unusual order which effect the Star Articles of 14 and 21 of the Constitution by derogating the principle of natural justice. I issued a list of the corrupt Judges wherein an enquiry is mandatory, as such the Suo-motu Contempt Petition is not maintainable. The order of the Apex Court in the Suo-motu Contempt Petition is erroneous and has been willfully wantonly and with mala fide intention was passed. Therefore, these proceedings may be referred to the Parliament, wherein I will establish the high rate of corruption prevailing with the Judiciary at the Madras High Court. The said Order also violating Article 219 of the Constitution since there is distinct ill-will in the order. Hence, I request the Hon’ble Judges to hear the matter after the retirement of the present Chief Justice of India but if considered urgent then refer the matter to Parliament. This is my humble and urgent submission. Further the Hon’ble Supreme Court had not granted the stipulated time which is highly irregular.” A perusal of the above letter of Shri Justice C.S. Karnan very clearly
demonstrates, that he had made allegations against a large number of
Judges, which he continued to maintain, were correct. He also
acknowledged, that he had addressed the media, after this Court had
issued notice to him (on 8.2.2017), wherein he affirmed the allegations he
had made against 20 named Judges of the Madras High Court. He also
declared before the Press, that the then Chief Justice of the High Court,
was at the top of the list, amongst corrupt Judges. He also affirmed,
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having issued a direction to the Commissioner of Police, Chennai, to
register a case against two Judges of the Supreme Court (Shri Justice “…
J.S.K. …” and Mrs. Justice … “R.B. …”), with reference to a judicial order
passed by them.
19. Shri Justice C.S. Karnan, was duly served the notice in the
Suo-Motu Contempt Petition, for 13.2.2017. He had been asked through
the earlier order dated 8.2.2017 to enter appearance in person. He chose
to remain absent and unrepresented. It was, therefore, that the second
judicial order was passed on 13.2.2017. The above order confirmed the
interim directions issued by the first order (dated 8.2.2017). The Bench,
rather than taking any stringent steps against Justice Karnan, for not
having entered appearance as directed (despite due service), granted
liberty to Justice Karnan to appear in person on 10.3.2017 – the next
date of hearing. The text of the order dated 13.2.2017 is reproduced
below:
“Sri Justice C.S. Karnan has been duly served, in terms of the motion Bench order dated 08.02.2017. A communication dated 10.02.2017 addressed by Sri Justice C.S. Karnan to the Secretary General of this Court has been received in the Registry of this Court. Every page of the above communication bears his signatures. The aforesaid letter of Sri Justice C.S. Karnan is taken on record. 2. Despite due notice, Shri Justice C.S. Karnan has not appeared. No one has been authorised by Sri Justice C.S. Karnan to represent him today. In any case, no one having a power of attorney, has represented him today. We are not aware of the reason(s) for his non-appearance. It is therefore, that we refrain from proceeding with the matter as of now.
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3. Post for hearing on 10.03.2017 at 10.30 a.m. Sri Justice C.S. Karnan is directed to be present in Court in person, on the next date of hearing. We also hereby direct, that the interim order passed in this matter on 08.02.2017, shall continue till further orders. 4. It is necessary to notice, that certain counsel, appeared on their own. We enquired from them, whether they were duly authorised by Sri Justice C.S. Karnan, and were in possession of a power of attorney to represent him. They had no such authorization. These learned counsel submitted, that they proposed to file impleadment application on behalf of certain organization. The oral prayer for impleadment is rejected. 5. Since contempt proceedings are a matter strictly between the Court and the alleged contemnor, anyone who enters appearance and disrupts the proceedings of this case in future, should understand that he/she can be proceeded against, in consonance with law. All that we need to say is, that no one should appear in this matter, without due consent and authorization. 6. The Registry shall communicate the instant order to Sri Justice C.S. Karnan, in the same manner as he was communicated the previous order.” 20. On 13.2.2017, Justice Karnan addressed another letter to the
Secretary General of this Court. And through the Secretary General, to
the members of the Bench dealing with the contempt proceedings. In the
instant letter he requested the Bench, to restore his judicial and
administrative work, as he was to retire shortly. He also undertook to
cooperate with this Court, in furtherance of the contempt proceedings
initiated against him. The short text of the above communication dated
13.2.2017, is reproduced below:
“My Hon’ble Lords, please resume my Administrative & Judicial work forthwith since my retirement is imminent. I will certainly co-operate with the Contempt proceedings; please circulate to all the concerned Hon’ble Judges and oblige.”
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Justice Karnan also addressed a separate letter dated 13.2.2017,
purporting to be his explanation, to the show cause notice issued to him.
Relevant extract of the same is reproduced below:
“…The following purports to be my condensed explanation: (1) I am fighting for righteousness and for the welfare of the general public of India. (2) I reiterate as always done, during the last few years about the high rate of Corruption at the Courts I served and still serving, besides the Supreme Court of India. I will not cease my efforts and will continue to fight until every wrong doing is uprooted. (3) It should be noted that there has been no adequate representation from the minority communities such as the Muslims, Christians, Schedule Caste and Schedule Tribe and of the most backward Communities, to the High Courts and Supreme Court even though the total strength of Judges is around 1100, an insignificant few including myself are holding the position of Justice of the peace. (4) Therefore, I request the Hon’ble Supreme Court Collegium to appoint as Judges around 400 candidates from the Schedule Caste, Schedule Tribe and of the Minorities including most Backward Classes so that Justice will prevail on a neutral stance and that no quarter is biased and no one is benefitted. The balance of power if unfortunately centred with the upper caste Judges resulting in the worst corrupt scenario ever witnessed since India attained Independence in 1947. I, as a serving Judge of the Judiciary cannot tolerate the degeneration of the Judiciary by corrupt Judges and in this regard I have placed on record the corruption of various Judges over the years. (5) Mr. Justice “… N.K. …”, Judge of the Madras High Court kicked me with his shoe and slyly removed my name tag pinned on my seat at a public function and I immediately reported this matter to the Supreme Court with intimation to the Chairman of the Schedule Caste and Schedule Tribes Commission. This incident smacks of the prejudice coming from a dignified Judge and is the worst form of corruption as per the Atrocities Act of the Indian Constitution. This complaint is pending with the Court for around
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4 years. Hence, I am seeking a comprehensive enquiry to all my allegations. (6) Mr. Justice “… S.M.K. ….” has committed a custodial rape with his intern, namely Ms. “… D. …” and as a consequence of his dastardly crime she conceived and delivered a male baby. Both Ms. “… D. …” and the boy child are living. If this atrocious crime coming from a High Court Judge, as alleged by me cannot be determined then why cannot the case be examined by more professional investigators? This incident coming from the precincts of the Madras High Court is now known to the general public. Is the general public to believe that Judges are above the law? As anyone can easily discern, these are genuine reasons why I am looking forward to a comprehensive review of all my allegations and not be considered – “A spoil sport”. All my efforts are most paramount and imperative since it is solemnly meant for the upholding of the sanctity and decorum of the Courts.” A perusal of the above reply of Justice Karnan reveals, his unequivocal
and steadfast assertion, about the high rate of corruption in Courts,
including Judges of the Supreme Court of India. His pointed and direct
allegations against some individual Judges, were again reiterated.
21. Despite the fact that the Registry of this Court, had duly
communicated the order dated 13.2.2017 to Shri Justice C.S. Karnan, he
chose not to enter appearance even on 10.3.2017. To procure the
presence of Shri Justice C.S. Karnan, this Court passed the following
order on 10.3.2017:
“1. Notice of this petition has been duly served. Despite service, wherein the personal presence of Shri Justice C.S.Karnan, in this Court, was imperative, he has neither entered appearance in person, nor through counsel. 2. It would be pertinent to mention, that the Registry of this Court received a fax message, from Shri Justice C.S.Karnan, dated 08.03.2017, seeking a meeting with the Chief Justice and the
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Hon’ble Judges of this Court, so as to discuss certain administrative issues expressed therein, which primarily seem to reflect the allegations levelled by him against certain named Judges. The above fax message, dated 08.03.2017, cannot be considered as a response of Shri Justice C.S.Karnan, either to the contempt petition, or to the notice served upon him. 3. In view of the above, there is no other alternative but to seek the presence of Shri Justice C.S.Karnan by issuing bailable warrants. Ordered accordingly. Bailable warrants, in the sum of Rs.10,000/- (Rupees ten thousand), in the nature of a personal bond, to the satisfaction of the arresting officer, be issued, to ensure the presence of Shri Justice C.S.Karnan, in this Court, on 31.03.2017, at 10.30 A.M. 4. We would appreciate if the aforesaid bailable warrants, are served on Shri Justice C.S.Karnan, by the Director General of Police, West Bengal. 5. Post for hearing on 31.03.2017, at 10.30 A.M.” 22. On the very day the third judicial order dated 10.3.2017 was
passed, Shri Justice C.S. Karnan purportedly in exercise of suo-motu
extra ordinary original jurisdiction (under Article 226 of the Constitution
of India, read with Section 482 of the Code of Criminal Procedure), passed
an order dated 10.3.2017. Relevant part of the above order, is extracted
below:
“As known to law, no contempt either civil or criminal can be initiated against a sitting High Court Judge under Sections 2(c), 12 and 14 of the Contempt of Courts Act or under Article 20 of the Constitution of India. But subverting all cannons of justice the accused persons due to pre-conceived prejudicial notion have initiated the above mentioned unlawful, illegal and unconstitutional suo-motu contempt proceedings only with the view to somehow punish a sitting Judge of this Court belonging to a Scheduled Caste community. 2. It is also a well-known factor only a motion of impeachment can be initiated against a sitting Judge of the higher
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judiciary before the Parliament after due enquiry under the Judges’ Enquiry Act. 3. It is well within judicial knowledge a first attempt was made by the Apex Court in the colourful transfer from the High Court of Judicature at Madras to the High Court of Judicature at Calcutta. 4. It is also a open secret that a die-hard affidavit was filed before the Apex Court by Advocates Shanti Bhushan and Prashanth Bhushan in a similar contempt case touching upon several corruption charges on sitting and former Supreme Court Judges now pending in the cold storage of the Supreme Court for years, without any action either way. 5. It is also within judicial knowledge that all communications, draftings to the appropriate executive, legislative and judicial authorities is only permitted legal ventage which in no way invite suo-motu contempt proceedings much less on High Court Judges. 6. Another clinching matrix is that none of the following 13 persons have preferred any complaint or defence against, whereas the accused persons have taken upon themselves as protocol guardians on the allegations of the following persons:“1. Mr. Justice “… S.K.K. …”; 2. Mr. Justice “… S.M.K. …”; 3. Mr. Justice “… V.R.S.M. …”; 4. Mrs. Justice “… C.V. …”; 5. Mr. Justice “… R.S.R. …”; 6. Mr. Justice “… R.K.A. …”; 7. Mr. Justice “… T.S.T. …”; 8. Mr. Justice “… M.Y.I. …”; 9. Mr. Justice “… I.K. …”; 10. Mr. Justice “… A.K. …”; 11. Mr. Justice “… E.D.R. …”; 12. Mr. Justice “… K.N.B. …”; 13. Mr. Justice “… A.A. …”; 14. Mrs. Justice “… A.J. …”; 15. Mr. Justice “… V.D. …”; 16. Mr. Justice “… M.M.S. …”; 17. Mr. Justice “… N.K. …”; 18. Mr. Justice “… N.N. …”; 19. Mr. Justice “… T.R. …”; 20. Mr. Justice “… S. …”.
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21. Mr. “… H. …”, Private Secretary-cum-Registrar; 22. Mr. “… P.K. …”, Registrar; & 23. Mr. “… S.P. …”, Advocate & President, Tamil Nadu Advocates Association. xxx xxx xxx In the result, I direct the Central Bureau of Investigation to register, investigate and file a report before the appropriate Court of law under Article 226 read with Section 482 Cr.P.C. to prevent abuse of process of any Court and to secure the ends of justice invoking my inherent powers of this Hon’ble Court, under the appropriate criminal provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and other Penal provisions against the accused persons and I further direct the Secretary Generals of the Lok Sabha and Rajya Sabha to place the entire facts of the case before the Speaker for appropriate enquiry under the Judges’ Enquiry Act and consequently I request His Excellency the President of India to recall the bailable warrant illegally issued by the Supreme Court on 10.3.2017 and lift the non-work allotment ban of port-folio allocation and file a report within 7 (seven) days before this Hon’ble Court. Dated and signed by me this day 10th of March, 2017.” The above suo-motu order was endorsed to this Court. It was also
endorsed to the Rajya Sabha Secretariat (Legislative Section), whereupon,
the Rajya Sabha Secretariat (Legislative Section) addressed the following
letter to this Court:
“RAJYA SABHA SECRETARIAT (LEGISLATIVE SECTION) Subject: Suo-motu extra ordinary special original jurisdiction under article 226 of the Constitution read with section 482 of Criminal Procedure Code, 1973 – Communication from Shri Justice C.S. Karnan, Judge, Calcutta High Court regarding.
A copy of the communication on the above mentioned subject, containing, an order dated the 10th March, 2017 passed by Shri Justice C.S. Karnan, Judge, High Court of Calcutta in Suo-motu W.P. (Criminal) no. 1 of 2017 is sent herewith. It has been mentioned in the order that seven Judges of the Supreme Court, including the Chief Justice of India (names mentioned in the order), along with the Attorney General of India in suo-motu contempt petition (C) no. 1 of 2017 dated 8.2.2017 have called for
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his appearance on 10.3.2017 citing various reasons and has inter-alia directed that the Secretary-General of Rajya Sabha may place the entire facts of the case before the Hon’ble Chairman, Rajya Sabha for appropriate enquiry under the Judges (Inquiry) Act, 1968. Shri Justice C.S. Karnan has posted the matter to 31.3.2017 for compliance and reporting. 2. In this connection, it is stated that the provisions of the Judges (Inquiry) Act, 1968 become operative only when there is a substantive motion meeting requirements under Section 3(1) of the Judges (Inquiry) Act, 1968 presented in either House of the Parliament. Hon’ble Chairman, Rajya Sabha cannot take any suo-motu action in this regard at this stage since there is no motion before him to consider taking the action desired by Justice Karnan. Further, as per practice and convention, Hon’ble Chairman, Rajya Sabha or Secretary-General, Rajya Sabha do not respond to the notices/orders received from the courts and all such communications are forwarded to the Ministry of Law and Justice for apprising the concerned court about the correct constitutional/legal procedure. 3. The Ministry of Law and Justice is therefore requested to kindly look into the above matter and inform Shri Justice C.S. Karnan, Judge, High Court of Calcutta about the procedure relating to the conducting an enquiry or constitution of an Inquiry Committee under the Judges (Inquiry) Act, 1968.” A perusal of the order passed by Justice Karnan, and the letter endorsed
to the Supreme Court by the Rajya Sabha Secretariat (Legislative
Section), affirm the continuation of his actions in levelling corruption
charges against Judges by name. The above communications also
demonstrate, that he wished to publicize the allegations of corruption,
against his colleague Judges.
23. At this juncture, this Court received a very interesting
communication, from the Registrar General of the High Court of Calcutta.
Justice Karnan had addressed the above communication (- dated
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14.3.2017) to the Registrar General of the High Court of Calcutta. The
same is extracted below:
“To Dated the 14th March, 2017 The Registrar General, High Court, Calcutta
Respected Sir, On 9.3.2017 one Mr. Mathew, Advocate, his Cell no. 9820535428, came to my residence voluntarily and insisted on me to sign an order which was already prepared in my name. In the said order I was required to give notice to the Hon’ble Judges as named below:
1. The Chief Justice of India, Mr. Justice “… J.S.K. …” and Justice Mr. “… D.M. …”, on the basis of a suicide note written by former Chief Minister of Arunachal Pradesh, which I totally deny and simultaneously directed my personal security officer to send out the said Advocate from my residence. Accordingly he was sent out. The copy of the writ petition and the order prepared by the above mentioned Advocate Mr. Mathew is enclosed herewith. A detailed enquiry may be conducted on this issue and have the report submitted to the Hon’ble Judges as mentioned above for necessary investigation and appropriate action.” The aforesaid communication was endorsed by the Registrar General of
the Calcutta High Court to the Supreme Court, alongwith its enclosures.
The enclosures contained the text of a writ petition filed in the name of
Bijoy Krishna Adhikary, and also, the alleged draft order, which Justice
Karnan claims, he was asked to sign.
24. Whilst the contempt proceedings were going on, Justice Karnan
regularly addressed letters, to this Court with reference to his alleged
conduct, and the proceedings that had been initiated against him, he also
continued to address the media on the subject. At this very relevant
juncture, he passed another suo-motu judicial order (purportedly,
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invoking Article 226 of the Constitution of India, read with Section 482 of
the Code of Criminal Procedure), dated 15.3.2017. The text of the above
order is reproduced below:
“IN THE HIGH COURT OF JUDICATURE AT CALCUTTA Suo-motu Judicial Order passed after invoking Article 226 of the Constitution of India read with Section 482, Criminal Procedure Code. Present Justice C.S. Karnan To Dt. 15.03.2017 The Director, Central Bureau of Investigation, New Delhi I have made a complaint before the Hon’ble Prime Minister of India, against 20 Hon’ble Judges consisting of Supreme Court and High Court Judges, namely:“1. Mr. Justice “… S.K.K. …”; 2. Mr. Justice “… S.M.K. …”; 3. Mr. Justice “… V.R.S.M. …”; 4. Mrs. Justice “… C.V. …”; 5. Mr. Justice “… R.S.R. …”; 6. Mr. Justice “… R.K.A. …”; 7. Mr. Justice “… T.S.T. …”; 8. Mr. Justice “… M.Y.E. …”; 9. Mr. Justice “… I.K. …”; 10. Mr. Justice “… A.K. …”; 11. Mr. Justice “… E.D.R. …”; 12. Mr. Justice “… K.N.B. …”; 13. Mr. Justice “… A.A. …”; 14. Mrs. Justice “… A.J. …”; 15. Mr. Justice “… V.D. …”; 16. Mr. Justice “… M.M.S. …”; 17. Mr. Justice “… N.K. …”; 18. Mr. Justice “… N.N. …”; 19. Mr. Justice “… T.R. …”; 20. Mr. Justice “… S. …”. The said complaint is still pending enquiry on the file of the Hon’ble Prime Minister of India. In the said complaint I have mentioned 10 inferences in order to probe the dishonesty of Judges.
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Under these circumstances the Hon’ble Supreme Court had issued Suo-motu Contempt Order on 8.2.2017 against me and also restraining my judicial and administrative work, the said order is not sustainable under law since no jurisdiction, no cause of action arise from the Supreme Court and no provision. As such the Hon’ble Judges have misused their judicial and administrative power. Further the Hon’ble 7 Judges who after breaking the Indian Constitutional Law by constituting an unconstitutional Bench, hence they are the contemnors since they have committed contempt of their own Court. Further the Hon’ble Judges have wantonly, deliberately and with mala fide intention insulted me at a public institution which amounts to harassment towards a Dalit Judge. As such all the 7 Hon’ble Judges have been squarely covered under the Scheduled Castes and Scheduled Tribes Atrocities Act. Hence, I have passed a Suo-motu Judicial Order to you on 10.03.2017 for a comprehensive enquiry and to submit the final report before the Parliament. Now I am giving one more direction through my Suo-motu Judicial Order to conduct a detail enquiry on my complaint dated 23.1.2017 and submit the final report before the Parliament for further discussion, since it is a national issue. Further normally a complaint if levelled by any citizen of India against whomsoever he may address, then that complaint has to be disposed of on merits which is the procedure of law. In my case the Hon’ble 7 Judges without following the procedures of law whatsoever and by taking the law in their hands have operated their judicial and administrative power as per their own liking, besides the Hon’ble Judges wantonly and deliberately have ignored the Hon’ble Prime Minister’s Office wherein my complaint is pending enquiry. As such the Hon’ble Judges have violated Article 219 of the Constitution besides violating the principle of natural justice besides functioning against Article 14, 21 and 19(g)(i) which are prime Articles of the Constitution. Therefore, on my complaint on 23.1.2017 which has to be decided on merits is of paramount importance in order to maintain the public confidence and balance of convenience. Further I undertake that I will extend my full co-operation and co-ordination to establish my complaint dated 23.1.2017 and with sufficient documentary proof which is available at the Madras High Court Registry. Accordingly ordered. 1. Justice “… J.S.K. …” – Chief Justice of India 2. Justice “… D.M. …” 3. Justice “… J.C. …”
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4. Justice “… R.G. …” 5. Justice “… M.B.L. …” 6. Justice “… P.C.G. …” 7. Justice “… K.J. …” My Lords, on my impugned complaint dated 23.1.2017 which has been levelled against 20 Judges under corruption charges. Now the said complaint has to be decided on merits by the Director, Central Bureau of Investigation, New Delhi. Therefore your Suo-motu Contempt Petition no. 1 of 2017 and its interim orders including bailable warrant becomes infructuous and null and void. Hence I make a deep request to cancel your above mentioned Constitutional Bench and restore my normal judicial and administrative work and oblige. Yours Sd/(Justice C.S. Karnan)” It is not necessary for us to summarize the contents of the letter extracted
above. We have chosen not to highlight any portion thereof. The
contents of the letter however demonstrate, the extent of malice and
contempt in the mind of Justice Karnan against his colleague Judges.
25. On 16.3.2017, Justice Karnan addressed the following
communication to the members of this Bench:
“To Date: 16.03.2017 1. Justice “… J.S.K. …” – Chief Justice of India 2. Justice “… D.M. …” 3. Justice “… J.C. … 4. Justice “… R.G. …” 5. Justice “… M.B.L. …” 6. Justice “… P.C.G. …” 7. Justice “… K.J. …”
My Lords, you have constituted an unconstitutional Bench after breaking the Indian Constitutional Law and passed a Suo-Motu contempt order against me in Suo-Motu Contempt Petition no. 1 of 2017 wherein you have restrained my judicial and administrative work, the said order has been passed with malafide intention in order to harass a Dalit Judge (myself).
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The factual position of the case is that I have levelled a complaint dated 23.1.2017, against 20 Judges for dishonesty before the Hon’ble Prime Minister of India which is pending enquiry. Under these circumstances, the above mentioned Hon’ble Judges have issued a Suo-Motu contempt order in order to protect the corrupt Judges. As such the above mentioned Hon’ble Judges have also colluded with them and secured their support by way of operating judicial power out of cause of action, out of jurisdiction, out of provision and constituted a wrong forum. Judge means a dignified person of Law who has to hear both sides of the case and pass order in accordance with law. In the instant case the Hon’ble Judges have defended the case on behalf of the 20 erring Judges. Therefore, the Hon’ble seven Judges and other 20 Judges as mentioned are the Opposite parties/respondents and myself a complainant. As such the Hon’ble seven Judges passed a Suo-Motu order which is illegal and improper. Hence I request you to cancel the unconstitutional Bench and restore my normal work. However, the Hon’ble seven Judges have prevented me in carrying out my judicial and administrative work from 8.2.2017 until now. Therefore, I am calling up on all seven Judges to pay compensation, a sum of Rs.14 Crores (Rupees fourteen crores only) as compensation since you have disturbed my mind and my normal life, besides you have insulted me in the general public consisting of a population of 120 crores in India due to lack of legal knowledge. Now all seven Judges shall pay a part of the compensation within a period of 7 days from the date of receipt of this order, failing which on the same stand of yours (same footing), I will restrain judicial and administrative work of yours. This is for your information. Yours, Sd/(Justice C.S. Karnan)” The letter extracted above, also needs no further elaboration, and as
such, we do not desire to substantiate the accusations levelled by Justice
Karnan therein, any further.
26. The bailable warrant issued in this case, to procure the personal
presence of Shri Justice C.S. Karnan, was served on him on 17.3.2017.
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Having signed the same in token of being duly served, Shri Justice C.S.
Karnan recorded the following note thereon, in his own handwriting:
“On my complaint dated 23.1.2017, the Supreme Court has issued a Suo-Motu Contempt Order. On the same complaint, I directed the CBI to conduct a detailed enquiry and submit a final report before the Parliament at Delhi. Under the circumstances the bailable warrant is duly rejected, further I ordered to the CBI to register a criminal case against seven Judges of the Supreme Court and Attorney General under the SC/ST Atrocities Act. As such all the seven Judges are accused under the said Act. Hence I urge the Hon’ble seven Judges to resign their respective posts in the interest of justice and national welfare. Therefore the Hon’ble Judges have no locus standi to proceed the Contempt Proceedings against me any further. Since now the complaint regarding the SC/ST Act between the Hon’ble Judges and myself, I hope the Hon’ble Judges in future should not commit such a kind of illegal order with malafide intention otherwise the jurisdiction system will deteriorate, therefore I rejected the bailable warrant produced by the Ld. DGP & IG” Shri Justice C.S. Karnan also addressed a letter dated 17.3.2017 to the
members of the Bench hearing this case. The text of the same, is
reproduced below:
“To Date: 17.03.2017 1. Justice “… J.S.K. …” – Chief Justice of India 2. Justice “… D.M. …” 3. Justice “… J.C. …” 4. Justice “… R.G. …” 5. Justice “… M.B.L. …” 6. Justice “… P.C.G. …” 7. Justice “… K.J. …”
My Lords, your bailable order dated 10.3.2017 in the Suo-motu Contempt Proceedings today, top Police Officers from the Calcutta High Court Circle came to my residence in order to execute the bailable warrant earmarked for 10.30 am on 31.3.2017. I rejected the same after assigning valid reasons. This kind of demeaning acts from your Lordships and further perpetrating the Atrocities Act is absolutely out of law to the utter embarrassment of a Dalit Judge. Hence, I request you to stop your
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further harassments in order to uphold the dignity and decorum of our Courts. Yours, Sd/(Justice C.S. Karnan)” 27. On 31.3.2017 (the next date of hearing, after 10.3.2017), Shri
Justice C.S. Karnan appeared in person, and advanced submissions.
During the course of hearing, he also handed over to the Bench, the
following signed text, dated 25.3.2017:
“To Date: 25.03.2017 1. Justice “… J.S.K. …” – Chief Justice of India 2. Justice “… D.M. …” 3. Justice “… J.C. …” 4. Justice “… R.G. …” 5. Justice “… M.B.L. …” 6. Justice “… P.C.G. …” 7. Justice “… K.J. …”
1. Now I unconditionally withdraw my complaint dated 23.1.2017 against 20 Hon’ble Judges alleging that they were dishonest in their behavior. The said complaint addressed to the Hon’ble Prime Minister of India. Hence I entreat this Hon’ble Court that the Suo-motu Contempt proceedings may be closed since my complaint is no more in force. 2. I unconditionally tender an apology before this Court if I committed contempt of Court. 3. I will follow Your Lordship’s advice and guidelines in future in order to maintain the judicial system and its integrity. 4. I will be retiring on 11.6.2017, therefore, I make a deep request to permit me to retire from the Bench with the blessings of all brother and sister Judges of the Calcutta High Court. Hence, I pray Your Lordships to restore my judicial and administrative work and thus render justice and oblige. Yours, Sd/(Justice C.S. Karnan)”
38
A perusal of the above communication, reveals an unmistakable
acknowledgement by Justice Karnan, that he had factually addressed the
letter dated 23.1.2017, wherein, he had levelled allegations of corruption,
against 20 Judges by name. However, in the submissions made in the
open Court, he reiterated the allegations against his former colleague
Judges. Since the oral submissions made by Shri Justice C.S. Karnan
during the course of hearing on 31.3.2017, were in complete contrast
with the contents of the note extracted above, this Court passed the
following fourth judicial order, on 31.3.2017:
“1. Shri Justice C.S. Karnan has entered appearance in Court in person. He was repeatedly asked, whether he affirms the contents of the letters, written by him, as are available on the record of the case. He was also asked whether he would like to withdraw the allegations. The instant latter query was made on the basis of a letter dated 25.03.2017, which Shri Justice C.S. Karnan personally handed over to us, in Court today. He has not responded, in any affirmative manner, one way or the other. We would therefore proceed with the matter only after receipt of his written response. Shri Justice C.S. Karnan is hereby called upon to respond to the factual position indicated in the various letters, addressed by him to this Court, within four weeks from today. His response shall be filed by way of an affidavit. Shri Justice C.S. Karnan is directed to appear in Court in person on the next date of hearing. 2. The repeated requests of Shri Justice C.S. Karnan, that he should be permitted to discharge judicial and administrative duties, are declined. 3. Post for hearing on 01.05.2017, at 10.30 A.M.” It is pertinent to record, that after the above order had been dictated,
Justice Karnan while moving away commented, that he may be sent to
jail, but he would not appear before this Court again.
39
28. True to his statement, Shri Justice C.S. Karnan did not enter
appearance on next date of hearing, (on 1.5.2017). But having viewed his
submissions and his demeanour during the course of hearing on
31.3.2017, and having contrasted the same with the written text (- dated
25.3.2017), this Court was prima facie of the view, that he may not be in
a fit condition to defend himself. It was therefore, that his medical
examination, was ordered on 1.5.2017. The above order dated 1.5.2017 –
the fifth judicial order of the proceedings, is reproduced below:
“1. While issuing notice to Shri Justice C.S. Karnan on 8.2.2017, this Court had directed, that Justice Karnan would forthwith refrain from handling any judicial or administrative work, as may have been assigned to him, in furtherance of the office held by him. He was also directed to immediately return all judicial and administrative files in his possession to the Registrar General of the High Court. 2. Ever since the initiation of these proceedings, he has been expressing further disrespect to this Court, he has also been making press statements with abject impunity. However, after the last order dated 31.3.2017, he is stated to have issued orders (purported to be judicial) against the members of this Bench, as also, another Hon’ble Judge of this Court. Those orders have been received in the Registry of this Court, and are part of the present compilation. In order to ensure, that no Court, Tribunal, Commission or Authority takes cognizance of the orders passed by Shri Justice C.S. Karnan, we hereby refrain all Courts, Tribunals, Commissions or Authorities, from taking cognizance of any orders passed by Shri Justice C.S. Karnan, after the initiation of the proceeding by us on 8.2.2017. 3. The tenor of the press briefings, as also, the purported judicial orders passed by Shri Justice C.S. Karnan, prima facie suggest, that he may not be in a fit medical condition, to defend himself, in the present proceedings. We therefore consider it appropriate, to require him to be medically examined, before proceeding further. We, accordingly, direct the Director Health Services, Government of West Bengal, to constitute a Board of Doctors from Pavlov Government Hospital, Kolkata, to examine
40
Shri Justice C.S. Karnan, and submit a report to this Court whether or not Shri Justice C.S. Karnan is in a fit condition to defend himself. The above Board shall conduct the examination on 4.5.2017. The Director General of Police, West Bengal, shall constitute a team of police personnel, to assist the Medical Board, in carrying out the directions, recorded hereinabove. 4. The Medical Board shall submit its report to this Court, on or before 8.5.2017. 5. Shri Justice C.S. Karnan may, if he is so advised, furnish his response to the notice issued to him on 8.2.2017, in the meantime. In case he does not choose to file a response on or before 8.5.2017, it shall be presumed, that he has nothing to say in the matter. 6. Post on 9.5.2017, at 10.30 A.M., for further orders. 7. Shri R.S. Suri, Senior Advocate, and Shri Ajit Kumar Sinha, Senior Advocate, President and Vice President respectively, of the Supreme Court Bar Association, have made an oral request, that they may be allowed to intervene and assist this Court in the matter, given the importance of the issue. Prayer is allowed. The Supreme Court Bar Association, is permitted to intervene in the matter, and assist this Court, on the merits of the controversy.” A perusal of the above order reveals, that a further direction was issued
by this Court, keeping in mind strange suo-motu judicial orders passed
by Shri Justice C.S. Karnan, from time to time. By the instant direction,
Courts, Tribunals, Commissions and Authorities were directed not to take
cognizance of any order passed by Shri Justice C.S. Karnan, after the
initiation of the suo-motu contempt proceedings against him on 8.2.2017,
wherein he had already been restrained from handling any judicial or
administrative work.
29. In our considered view, it is not necessary for us to highlight all the
submissions made by Shri Justice C.S. Karnan to the media, as well as,
41
the orders passed by him. All these orders were placed in public domain
(by Justice Karnan), well before the same were delivered to this Court.
His interviews with the media, and the orders passed by him were
extremely disparaging, illustratively, by an order dated 13.4.2017, he
ordered the registration of a case under the provisions of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, against
all the 7 members of the Bench; by another order dated 28.4.2017, he
directed the Air Control Authority, New Delhi, not to allow any of the 7
members of the Bench to travel abroad; and by yet another order dated
7.5.2017, he sentenced all the 7 members of the Bench, and Mrs. Justice
“… R.B. …” to 5 years rigorous imprisonment. All this was widely
reported by the media in India, as well as, by the foreign media. The BBC
also, reported on the issue.
30. The matter was finally taken up for hearing on 9.5.2017. During
the course of hearing, Shri Rakesh Dwivedi, learned senior counsel
representing the State of West Bengal informed the Bench, that in
compliance with the directions issued by this Court on 1.5.2017, the
Director, Health Services, Government of West Bengal had constituted a
Board of Doctors from Pavlov Government Hospital, Calcutta, to examine
Justice Karnan. He informed this Court, that the Board of Doctors had
approached Shri Justice C.S. Karnan, at his residence (along with police
personnel). He also informed the Bench, that Justice Karnan had met
the Board of Doctors, and had spoken to them. Justice Karnan, the
42
Bench was informed, told the Board of Doctors, that he was in a fit state
of health, mentally and otherwise, and needed no medical evaluation. We
are of the view, that psychiatrists on the Board of Doctors, would have
been in opposition to evaluate the mental health of Justice Karnan,
during the above interaction. Had they found anything remiss, they
would have informed this Court accordingly. Since no report has been
submitted by the Board of Doctors, we would assume, that they had
found nothing significant enough to report. We would, therefore, accept
the assertion of Justice Karnan, that he is medically and mentally fit, to
defend himself.
31. In the above view of the matter, we would have to rely on the
defence tendered by him, in the form of various communications
dispatched to this Court from time to time, as also, during the course of
hearing, when he appeared in person on 31.3.2017. There is no other
alternative with us. We had granted liberty to Justice Karnan vide our
order dated 1.5.2017, to furnish his response to the show cause notice (
before 8.5.2017), with the clear indication, that if he choose not to file any
response, the Court would proceed with the matter by presuming, that he
had nothing more to say.
32. On the merits of the controversy, this Court was assisted by Shri
Mukul Rohtagi, learned Attorney General, from time to time. He was
unequivocal in his submission, that Shri Justice C.S. Karnan had
consistently committed gross contempt of this Court. In view of the
43
factual position which had emerged, after this Court issued the show
cause notice to Shri Justice C.S. Karnan (- on 8.2.2017), it was the
pointed contention of the learned Attorney General, that Shri Justice C.S.
Karnan had also committed contempt, in the face of this Court, by openly
denouncing a large number of Judges with allegations of corruption, and
by passing orders which had neither any legal sanction nor any
justification. Mr. Maninder Singh, learned Additional Solicitor General,
reiterated the above position. Shri Rupinder Singh Suri, the President of
the Supreme Court Bar Association, and Shri Ajit Kumar Sinha, its
Vice-President also assisted this Court. They were also unequivocal in
their submission, that Shri Justice C.S. Karnan was guilty of having
consistently and repeatedly committed criminal contempt. Shri K.K.
Venugopal, learned senior counsel representing the Registrar General of
the Madras High Court, while endorsing the views expressed by all the
other learned counsel, submitted that a final decision in the matter, be
deferred till such time as Shri Justice C.S. Karnan demits his office as
Judge of the High Court. It was submitted, that Shri Justice C.S.
Karnan, would retire on attaining the age of superannuation on
11.6.2017. It was urged, that the image of the institution would be
tarnished, in case Shri Justice C.S. Karnan was punished for contempt of
Court, whilst he is holding the high constitutional office.
33. We have given our thoughtful consideration to the factual position
noticed hereinabove, as also, the submissions advanced by learned
44
counsel, who assisted us during the course of hearing. We have carefully
examined the text of the letters written by Shri Justice C.S. Karnan, from
time to time. We have closely examined the suo-motu procedure adopted
by him, whereby he passed orders which were derogatory to the
administration of justice, before he was issued notice for contempt, by
this Court. We have also carefully analysed the orders passed by Shri
Justice C.S. Karnan suo-motu (in the purported exercise of the
jurisdiction vested in him under Article 226 of the Constitution of India,
read with Section 482 of the Code of Criminal Procedure), even after the
issuance of the contempt notice to him, by this Court. His demeanour
was found to have become further aggressive, after this Court passed
orders from time to time, in this case. The contents of the letters
addressed by him contained scandalous material against Judges of High
Courts and the Supreme Court. This correspondence was addressed to
the highest constitutional authorities, in all three wings of governance –
the legislature, the executive and the judiciary. His public utterances,
turned the judicial system into a laughing stock. The local media,
unmindful of the damage it was causing to the judicial institution, merrily
rode the Karnan wave. Even the foreign media, had its dig at the Indian
judiciary. None of his actions can be considered as bona fide, especially
in view of the express directions issued by this Court on 8.2.2017,
requiring him to refrain from discharging any judicial or administrative
work. To restrain his abuse of suo-motu jurisdiction, a further order had
45
to be passed by this Court on 1.5.2017, restraining Courts, Tribunals,
Commissions and Authorities from taking cognizance of any order passed
by Justice Karnan.
34. We are of the considered view, that Justice Karnan shielded
himself from actions, by trumpeting his position, as belonging to an
under-privileged caste. By assuming the above position, he levelled
obnoxious allegations against innumerable Judges of the Supreme Court,
Chief Justices of the High Courts, but mostly against Judges of the
Madras High Court. The list of Judges against whom allegations were
levelled by Justice Karnan, include the following:
1. Justice Jagdish Singh Khehar – Chief Justice of India, 2. Justice P. Sathasivam – former Chief Justice of India, 3. Justice T.S. Thakur – former Chief Justice of India, 4. Justice Dipak Misra – Judge, Supreme Court of India, 5. Justice J. Chelameswar – Judge, Supreme Court of India, 6. Justice Ranjan Gogoi – Judge, Supreme Court of India, 7. Justice Madan B. Lokur – Judge, Supreme Court of India, 8. Justice Pinaki Chandra Ghose – Judge, Supreme Court of India, 9. Justice Kurian Joseph – Judge, Supreme Court of India, 10. Justice R.K. Agrawal – Judge, Supreme Court of India, 11. Justice R. Banumathi – Judge, Supreme Court of India, 12. Justice Sanjay Kishan Kaul – Judge, Supreme Court of India, 13. Justice F.M.I. Kalifulla – former Judge, Supreme Court of India, 14. Justice M.Y. Eqbal – former Judge, Supreme Court of India,
46
15. Justice S.K. Agnihotri – Chief Justice, High Court of Sikkim, 16. Justice R. Sudhakar – Judge, High Court of Jammu & Kashmir, 17. Justice V. Ramasubramanian – Judge, High Court of Judicature at Hyderabad 18. Justice S. Manikumar – Judge, High Court of Madras, 19. Justice S. Nagamuthu – Judge, High Court of Madras, 20. Justice M. Sathyanarayanan – Judge, High Court of Madras, 21. Justice C.T. Selvam – Judge, High Court of Madras, 22. Justice N. Kirubakaran – Judge, High Court of Madras, 23. Justice M.M. Sundresh – Judge, High Court of Madras, 24. Justice T. Raja – Judge, High Court of Madras, 25. Justice K. Swamidurai – former Judge, High Court of Madras, 26. Justice Chitra Venkataraman – former Judge, High Court of Madras, 27. Justice K.N. Basha – former Judge, High Court of Madras, 28. Justice V. Dhanapalan – former Judge, High Court of Madras, 29. Justice S. Tamilvanan – former Judge, High Court of Madras, 30. Justice Elipe Dharma Rao – former Judge, High Court of Madras, 31. Justice R.S. Ramanathan – former Judge, High Court of Madras, 32. Justice Aruna Jagdeesan – former Judge, High Court of Madras, 33. Justice G.M. Akbar Ali – former Judge, High Court of Madras.
47
35. None of the allegations levelled by Justice Karnan were supported
by any material. His allegations were malicious and defamatory, and
pointedly by name, against many of the concerned Judges. He carried his
insinuations to the public at large, in the first instance, by endorsing his
letters carefully so as to widely circulate the contents of his
communications, to the desired circles. Some of his letters were
intentionally endorsed, amongst others, to the President of the Tamil
Nadu Advocate Association. And later, through the internet, he placed
his point of view, and the entire material, in the public domain. During
the course of hearing of the instant contempt petition, his ridicule of the
Supreme Court remained unabated. In fact, it was heightened, as never
before. In this process, he even stayed orders passed by this Court. One
of the orders passed by him, restrained the Judges on this Bench, from
leaving the country. By another order he convicted the Judges on this
Bench, besides another Judge of this Court, and sentenced them to 5
years imprisonment, besides imposing individual costs on the convicted
Judges. In the background of the factual position summarized above,
while disposing of the suo-motu contempt petition on 9.5.2017, we had
directed, that no further statements issued by Shri Justice C.S. Karnan
would be publicized. The instant restraint order, however, does not
prevent or hinder any public debate on the matter, academic or
otherwise. We have not restricted, the media in any manner, other than,
to the limited extent expressed above. We hope and expect, that a
48
meaningful debate, would lead to a wholesome understanding of the
issue, from all possible perspectives.
36. From the narration expressed in the preceding paragraphs, we
have no hesitation in concluding, that the actions of Shri Justice C.S.
Karnan constituted the grossest and gravest actions of contempt of Court.
He has also committed contempt, in the face of the Court. He is therefore
liable to be punished, for his unsavoury actions and behavior. We are
satisfied that he should be punished for his above actions, with
imprisonment for six months. Ordered accordingly.
.…………………………CJI. (Jagdish Singh Khehar)
………………….…………J. (Dipak Misra) separate order recorded ………………….…………J. (J. Chelameswar) separate order recorded ………………….…………J. (Ranjan Gogoi)
………………….…………J. (Madan B. Lokur)
………………….…………J. (Pinaki Chandra Ghose)
………………….…………J. (Kurian Joseph)
49
New Delhi; May 9, 2017.
Note: The emphasis supplied in all the quotations in the instant judgment, are ours.
50
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION SUO MOTO CONTEMPT PETITION (CIVIL) NO.1 OF 2017
In Re: Hon’ble Shri Justice C.S. Karnan
J U D G M E N T
Chelameswar, J.
1. This case raises many important questions. The factual
background of the case is given in detail in the judgment of
Hon’ble the Chief Justice of India. Therefore, we propose to
mention only the bare minimum.
2. The contemnor’s name was recommended for elevation by
the Collegium of the Madras High Court i.e. the then Chief
Justice and two senior most judges. After the completion of the
51
ritual of the necessary appointment process contemplated under
the Constitution as interpreted by this Court in the Second and
Third Judges Cases1, he was appointed on 30th March 2009.
3. Whether the conduct of the contemnor subsequent to his
elevation is consistent with the conventionally accepted norms of
decorum expected of a member of the judiciary-more particularly
of a constitutional court must remain a puzzle. The contemnor
has been in the habit of addressing letters containing allegations
of corruption and commission of various offences by the Judges
and successive Chief Justices of the Madras High Court. The
contents of some of those letters have been mentioned in the
judgment of Hon’ble the Chief Justice. They need no reiteration.
The current proceeding is not an inquisition either into any one of
those allegations made by the contemnor or whether the activity
of the contemnor is within the limits of the conduct permissible
for a Judge of a High Court in this country. In our opinion, the
1
Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441 and Special Reference No.1 of 1998 (1998) 7 SCC 739
52
facts relevant for recording the conviction and sentence by order
of this Court dated 9th May, 2017 are limited.
4. The contemnor addressed two letters2 to the Prime Minister
of India. Copies of the same are marked to various other
constitutional functionaries including the Chief Justice of India.
These letters contained allegations (1) that the selection process
of the judges of the constitutional courts of this country is
unwholesome, (2) of corruption against various judges and Chief
Justices of the Madras High Court, (3) of the commission of
certain offences (rape) against one of the judges of the Madras
High Court and (4) that the conduct of some of the judges of the
Madras High Court which (according to the contemnor) constitute
offences under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. The details of these various
allegations are to be found in the above-mentioned letters
addressed to the Prime Minister and other documents which
constitute a part of the administrative record of this Court
referred to in the judgment of the Chief Justice of India.
2
Letter No.I – dated 03.01.2017 & Letter No.II – undated, but sometimes in February 2017
53
5. Whether those various allegations made by the contemnor
are based on any evidence to establish the truth of the allegations
is a matter which cannot be examined in these proceedings. The
allegations are too vague and some of them even incoherent.
Whether any one of those alleged misdeeds of the judges of the
Madras High Court referred to by the contemnor constitute any
offence or actionable wrong under any law of the land requires an
enquiry. If the contemnor believes and has the material with him
to establish that some of the Judges of the Madras High Court are
corrupt or otherwise guilty of some offences known to law, he is
required to approach the appropriate forum competent to
examine those allegations. What is the appropriate forum and
procedure which the contemnor is required to follow for setting
the law in motion w.r.t. each of the allegations made by the
contemnor are questions to be examined in detail.
6. Such complaints, if made to the appropriate
forum/authority are required to be investigated in accordance
with the procedure established by law relevant in the context of
each of those allegations and appropriate further legal
54
proceedings are to be initiated, if the investigation reveals the
commission of any offence cognizable or non-cognizable or any
other actionable wrong.
7. If there is any truth in any one of those allegations made by
the contemnor against any one of the judges named by him, it is
too serious a matter and requires appropriate action in
accordance with the constitution and the law in the interest of
both the purity of the judiciary and the constitutional governance
of this nation.
8. The contemnor who claims to have knowledge of the various
alleged misdeeds of the judges of the Madras High Court at best
can be a complainant or informant. If an appropriate enquiry is
initiated into any one or all of the allegations made by the
contemnor, he would figure as a witness to establish the truth of
the allegations made by him. Unfortunately the contemnor
appears to be oblivious of one of the fundamental principles of
law that a complainant/informant cannot be a judge in his own
complaint. The contemnor on more than one occasion “passed
orders purporting to be in exercise of his judicial functions”
55
commanding various authorities of the states to take legal action
against various judges of the Madras High Court on the basis of
the allegations made by him from time to time.
9. Whether all the above-mentioned conduct amounts to either
“proved misbehavior” or “incapacity” within the meaning of Article
124(4) read with Article 217(1)(b) of the Constitution of India
warranting the impeachment of the contemnor is a matter which
requires a very critical examination. If the contemnor is unable to
prove the various allegations made against judges of the Madras
High Court, what legal consequences would follow from such
failure also requires an examination. Probably, the contemnor
would be amenable for action in accordance with law for
defamation, both civil and criminal apart from any other legal
consequences.
10. But the frequency and gravity with which the contemnor
made such allegations against his colleagues and the manner in
which such allegations are made public, certainly would have
some adverse impact on the reputation of the individual judges
against whom allegations are made, the image of the Madras High
56
Court and perhaps is likely to undermine the credibility of the
judiciary in this country. Consequently, the activity of contemnor
required scrutiny to determine whether the same would
constitute contempt of court. In spite of the repeated episodes of
the accusations by the contemnor, no authority under the
Constitution of India competent to examine the allegations ever
thought it necessary to act upon the contemnor’s accusations.
But that did not deter the contemnor. His activity continued
unabated.
11. Therefore, there arose a necessity to examine whether the
conduct of the contemnor constitutes contempt of court. If only
the contemnor appropriately participated in the proceedings
before the Court, a correct answer could have been found.
12. But one thing appears to be certain. If the above mentioned
conduct constitutes contempt, it surely can only be criminal
contempt falling under the head of scandalising the Court.
13. Faced with an unprecedented situation resulting from the
incessant questionable conduct of the contemnor perhaps made
57
the Chief Justice of India come to the conclusion that all the
above-mentioned questions could better be examined by this
court on the judicial side. We see no reason to doubt the
authority/jurisdiction of this Court to initiate the contempt
proceedings. Hypothetically speaking, if somebody were to move
this Court alleging that the activity of Justice Karnan
tantamounts to contempt of court and therefore appropriate
action be taken against him, this Court is bound to examine the
questions. It may have accepted or rejected the motion. But the
authority or jurisdiction of this Court to examine such a petition,
if made cannot be in any doubt. Therefore, in our opinion, the
fact that the present contempt proceedings are initiated suo motu
by this court makes no difference to its maintainability. If only
the contemnor appropriately participated in the proceedings, all
the above-mentioned questions and perhaps many more question
incidental to them could have been properly examined and
necessary conclusions could have been recorded.
14. Unfortunately, the contemnor never allowed the inquiry in
the right direction. On the other hand, he chose to question the
jurisdiction of this Court to initiate contempt proceedings against
58
him not on the ground that his activity did not constitute
contempt, but on the ground that no contempt proceedings could
be initiated against a Judge of a High Court. According to the
contemnor the only possible legal action against a Judge of a
High Court is to remove him from office in accordance with the
procedure of impeachment prescribed under the Constitution –
whatever be his “conduct” and “misconduct”, a stand which clearly is untenable in law. He did not stop there. He believed
that the initiation of contempt proceedings by this Court against
him would constitute an offence under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 as the
contemnor belongs to one of those communities falling within the
sweep of the protective umbrella of that enactment. He not only
believed so, but also purported to pass certain orders ostensibly
in exercise of the authority vested in him by virtue of his
appointment as a Judge of a High Court to initiate various
actions against members of this Bench, the details of which are
given in paragraphs 22 to 26. In substance, (i) he accused the
members of this Bench guilty of prejudice against him, (ii) “he
declared” that the initiation of contempt proceedings against him
is malafide judicial action apart from constituting an offence
59
under the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
15. Before we record the reasons which prompted us to be a
signatory to the order dated 9th May, 2017, we deem it
appropriate to briefly indicate nature of the authority of the
constitutional courts to punish the perpetrators of contumacious
action.
16. The authority to punish for contempt of court has always
been exercised by the judiciary from times immemorial3. The
justification for the existence of that is not to afford protection to
individual judges4 but to inspire confidence in the sanctity and
3
In one of the earliest legal pronouncements dealing with the subject, Justice Wilmot in Rex v. Almon (1765) Wilmot’s Notes, 243 explained the philosophy behind the power to punish for contempt of court. The passage now a classic exposition runs as follows: “And whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any obstruction whatsoever, not for the sake of the Judges as private individuals but because they are the channels by which the King’s justice is conveyed to the people ……….” 4 “The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” [ Douglas, J., Craig v. Harney, 331 US 367, 376 (1947)]
60
efficacy of the judiciary5, though they do not and should not flow
from the power to punish for contempt. They should rest on
more surer foundations. The foundations are – the trust and
confidence of the people that the judiciary is fearless and
impartial.
17. The power to punish for contempt of court has always been
recognized to be inherent in certain superior courts and in others
it was conferred by statutes.
18. This Court in E.M. Sankaran Namboodripad v. T. Narayanan Nambiar, (1970) 2 SCC 325, observed:
“6. The law of contempt stems from the right of the courts to punish by imprisonment or fines persons guilty of words or acts which either obstruct or tend to obstruct the administration of justice. This right is exercised in India by all courts when contempt is committed in facie curaie and by the superior courts on their own behalf or on behalf of courts subordinate to them even if committed outside the courts. Formerly, it was regarded as inherent in the powers of a Court of Record and now by the Constitution of India, it is a part of the powers of the Supreme Court and the High Courts. …”
5
“The object of the discipline enforced by the Court in case of contempt of Court is not to vindicate the dignity of the Court or the person of the Judge, but to prevent undue interference with the administration of justice.” [Bowen, L.J. – Helmore v. Smith, (1887) 35 Ch D 449, 455]
61
19. This Court on more than one occasion examined the nature and scope of the power to punish for contempt. In R.L. Kapur v. State of Madras, (1972) 1 SCC 651, this Court examined the
question whether the power of the Madras High Court to punish
for contempt of itself arose under the Contempt of Courts Act,
1952. The Court held as follows:
“Para 5. … Article 215 declares that every High Court shall be a court of record and shall have all powers of such a court including the power to punish for contempt of itself. Whether Article 215 declares the power of the High Court already existing in it by reason of its being a court of record, or whether the article confers the power as inherent in a court of record, the jurisdiction is a special one, not arising or derived from the Contempt of Courts Act, 1952 … In any case, so far as contempt of the High Court itself is concerned, as distinguished from that of a court subordinate to it, the Constitution vests these rights in every High Court, and so no Act of a Legislature could take away that jurisdiction and confer it afresh by virtue of its own authority. …”
Subsequently, in Pritam Pal v. High Court of Madhya Pradesh, Jabalpur, 1993 Supp (1) SCC 529, another Bench of
this Court opined as follows:
“Para 15. Prior to the Contempt of Courts Act, 1971, it was held that the High Court has inherent power to deal with a contempt of itself summarily and to adopt its own procedure, provided that it gives a fair and reasonable opportunity to the contemnor to defend himself. But the procedure has now been prescribed by Section 15 of the Act in exercise of the powers conferred by Entry 14, List III of the Seventh Schedule of the Constitution. Though the contempt jurisdiction of the Supreme Court and the High Court can be regulated by legislation by appropriate legislature under Entry 77 of List I and Entry 14 of List III in exercise of which the Parliament has enacted the Act of 1971, the
62
contempt jurisdiction of the Supreme Court and the High Court is given a constitutional foundation by declaring to be ‘Courts of Record’ under Articles 129 and 215 of the Constitution and, therefore, the inherent power of the Supreme Court and the High Court cannot be taken away by any legislation short of constitutional amendment. …”
It further indicated the various forms of contumacious action
constituting criminal contempt. Scandalising the court is one of
them.
“There are many kinds of contempts. The chief forms of contempt are insult to Judges, attacks upon them, comment on pending proceedings with a tendency to prejudice fair trial, obstruction to officers of courts, witnesses or the parties, abusing the process of the court, breach of duty by officers connected with the court and scandalising the Judges or the courts. The last form occurs, generally speaking, when the conduct of a person tends to bring the authority and administration of the law into disrespect or disregard. In this conduct are included all acts which bring the court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority. Such contempt may be committed in respect of a Single Judge or a single court but may, in certain circumstances, be committed in respect of the whole of the judiciary or judicial system.”6
20. The exercise of such a power has always been very
infrequent and subjected to some discipline. Members of the
Judiciary have always been conscious7 of the fact that the power
6
E.M. Sankaran Namboodripad v. T. Narayanan Nambiar, (1970) 2 SCC 325,
para 6 7
Shri Baradakanta Mishra v. The Registrar of Orissa High Court & Another, (1974) 1 SCC 374 (Hon. Iyer, J. – separate but concurring opinion)
63
for contempt should be exercised with meticulous care and
caution and only in absolutely compelling circumstances
warranting its exercise. “The countervailing good, not merely of free speech
but also of greater faith generated by exposure to the actinic light of bona fide, even
if marginally over-zealous, criticism cannot be overlooked. Justice is no cloistered
virtue.”8
In a judgment rendered almost a decade back, one of us
(Gogoi, J.) sitting in the Gauhati High Court held9:
“Para 65. Before stating the principles of law bearing on the facets of contempt of court raised in this case we would like to underscore the need to draw the lines clear enough to create confidence in the people that this ancient and inherent power, intended to preserve the faith of the public in public justice, will not be so used as to provoke public hostility as overtook the Star Chamber. A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to publish regardless of truth and public good and permits a process of brevi manu conviction, may unwittingly trench upon civil liberties and so the special jurisdiction and jurisprudence bearing on contempt power must be delineated with deliberation and operated with serious circumspection by the higher judicial echelons. So it is that as the palladium of our freedoms, the Supreme Court and the High Courts, must vigilantly protect free speech even against judicial umbrage — a delicate but sacred duty whose discharge demands tolerance and detachment of a high order.
Para 67. Considerations such as we have silhouetted led to the enactment of the Contempt of Courts Act, 1971, which makes some restrictive departures from the traditional law and implies some wholesome principles which serve as unspoken guidelines in this branch of law. …”
8
Ibid, Para 82 at page 409
9
2008(1) GLT 800 – In re: Lalit Kalita & Others
64
“14. Judiciary is not over-sensitive to criticism; in fact, bona fide criticism is welcome, perhaps, because it opens the doors to self-introspection. Judges are not infallible; they are humans and they often err, though, inadvertently and because of their individual perceptions. In such a situation, fair criticism of the viewpoint expressed in a judicial pronouncement or even of other forms of judicial conduct, is consistent with public interest and public good that Judges are committed to serve and uphold. The system of administration of justice, therefore, would receive due impetus from a realization amongst Judges that they can or have actually erred in their judgments; another perspective, a new dimension or insight must, therefore, always be welcome. Such a realization which would really enhance the majesty of the Rule of Law, will only be possible if the doors of self-assessment, in the light of the opinions of others, are kept open by Judges.
16. But when should silence cease to remain an option? Where is the line to be drawn? A contemptuous action is punishable on the touchstone of being a wrong to the public as distinguished from the harm caused to the individual Judge. Public confidence in the judicial system is indispensable. Its erosion is fatal. Of course, Judges by their own conduct, action and performance of duties must earn and enjoy the public confidence and not by the application of the rule of contempt. Criticism could be of the underlying principle of a judicial verdict or its rationale or reasoning and even its correctness. Criticism could be of the conduct of an individual Judge or a group of Judges. Whichever manner the criticism is made it must be dignified in language and content because crude expressions or manifestations are more capable of identification of the alleged wrong with the system as a whole. Motives, personal interest, bias, pre-disposition etc. cannot be permitted to be attributed as being responsible for the judicial verdict, unless, of course, the same can be established as an existing fact. It is the above category of acts or publications that would fall within the prohibited degree warranting action in contempt law.”
21. The Contempt of Courts Act, 1971 recognises two forms of
contempt – civil and criminal. Such a distinction has always
been made in this country ever since the present legal system was
introduced by the British. Civil contempt is defined under
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Section 2(b)10 to be “wilful disobedience to any judgment, decree, direction,
order, writ or other process of a court or wilful breach of an undertaking given to a
court.”
Section 2(c) defines criminal contempt.
“Section 2(c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;”
It can be seen from the above that any act which scandalises or
tends to scandalise the authority of the Court and interference or
obstruction of the administration of justice in any manner are two
forms of contumacious action.
10
Section 2 (b) “civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court.
66
22. It must be mentioned here that Great Britain from which we
have adopted the present legal system11 abolished the offence of
criminal contempt on the ground of scandalising the court
pursuant to the recommendation of the Law Commission dated
12th December, 201212.
After discussing the various suggestions received and their
implications, the Law Commission opined at para 91:
11 “Para 34. It will be seen that the terminology used in the definition is borrowed from the English Law of Contempt and embodies concepts which are familiar to that Law which, by and large, was applied in India. The expressions “scandalize”, “lowering the authority of the Court”, “interference”, “obstruction” and “administration of justice” have all gone into the legal currency of our sub-continent and have to be understood in the sense in which they have been so far understood by our Courts with the aid of the English Law, where necessary.” – Shri Baradakanta Mishra’s case – See Footnote 6 supra 12 One of the consideration which weighed with the Law Commission for recommending abolition of the offence of criminal contempt is the fact that there are other enactments such as Public Order Act, 1986 and the Communications Act, 2003 which can sufficiently take care of the situations where unfounded allegations which would otherwise have constituted offence of scandilising the court are made. “80. There are several criminal offences some of the same behaviour that can constitute scandalising the court, and these would continue to be available whether or not the offence of scandalising is abolished.”
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“91. One question is whether these offences are capable of covering publications making collective accusations against the judiciary or a section of it rather than an individual judge. If the material is sufficiently offensive or threatening, it could in principle be covered by the Public Order Act 1986 or the Communications Act 2003. It is unlikely to fall within the Malicious Communications Act 1988 or the Protection from Harassment Act 1997, which are mainly concerned with conduct aimed at individuals.”
and finally recorded its conclusions at para 93. The relevant
portion is:
“93. xxx xxx xxx
(11) There are several statutory offences covering the more serious forms of behavior covered by scandalising, and civil defamation proceedings are available in the case of false accusations of corruption or misconduct.”
and recommended
“94. Accordingly, we see no reason to alter our first preference as expressed in the consultation paper, namely the abolition of scandalising the court without replacement.”
23. The American law in this regard appears to be more liberal
with greater emphasis on freedom of speech. We do not wish to
undertake any elaborate analysis of the American jurisprudence
for the present purpose. Borrowing a passage from the Law
68
Commission’s Report of United Kingdom on “Contempt of Court :
Scandalising the Court (Contempt of Court : Scandalising The
Court”13 would suffice:
“Para 46. In summary, on a North American approach, the entire offence of scandalising may well be both unconstitutional and contrary to human rights.”
With reference to other common law countries, the Law
Commission summarized the position as follows:
“United States law traditionally regards freedom of speech, as enshrined in the First Amendment, as the paramount right that prevails over all others in case of conflict, unless there is a “clear and present danger that [the words] will bring about the substantive evils that Congress has a right to prevent” [(1919) 249 US 47, 51 to 52]. Other common law countries, such as England and Wales and Australia, by contrast, acknowledge the importance of freedom of speech, but regard it as one right among others, with any conflict being resolved by way of a balancing exercise. [Justice R. Sackville, “How Fragile Are the courts? Freedom of Speech and Criticism of the Judiciary” (2005)]. In our consultation paper we drew attention to the same contrast. The position in Canada remained uncertain until the court in Kopyto ((1987) 47 DLR (4th) 213 (Ont CA)], disapproving of the scandalising offence, appeared to adopt an approach near to that of the United States. New Zealand declined to follow Kopyto [(1993) NZHC 423 : [1994) 1 NZLR 48], thus remaining in the Anglo-Australian camp.”
13
Law Commission’s Report of United Kingdom on “Contempt of Court : Scandalising the Court (Contempt of Court : Scandalising The Court”, (2012) The Law Com No.335 [London “(The Stationery Office)]:
69
24. However, in India scandalising the Court is still recognized
to be an act constituting contempt of court.14 Though what is the
activity which constitutes scandalisation of the Court is not
defined or very precisely explained in the above-mentioned cases,
individuals were held guilty of contempt of court on the ground
that their deeds scandalized the Court.
25. Interference with the due course of any judicial proceeding
is another facet of criminal contempt. The conduct of the
contemnor subsequent to the initiation of suo motu contempt
petition No.1 of 2017 in purporting to pass various orders, the
details of which are contained in paragraphs 22 to 26 of judgment
of Chief Justice of India leaves no scope for doubt about the
question whether such conduct would amount to interfering with
the judicial proceedings pending in the highest court of the land.
The main proceeding might or might not have ended in finding
the guilt of the contemnor of scandalising the judiciary. The
contemnor aborted all attempts to judicially resolve the charge of
14
(1974) 1 SCC 374 – Shri Baradakanta Mishra v. The Registrar of Orissa High Court & Another;
(2002) 3 SCC 343 – In re: Arundhati Roy
70
commission of contempt brought against him by the initial notice
of the Court dated 08.02.2017. Rather, he chose to engage in a
tirade challenging the very jurisdiction of this Court to enquire
into an allegation of contempt against a sitting Judge of a High
Court. He had addressed numerous written communications to
the Members of the Bench dealing with the case and had also
passed several purported judicial orders, which, even on a
cursory glance, are contemptuous in nature and content. The
“post notice” conduct and the actions of the contemnor are to be
judged by a minimum standard of expectation, surely, what we
have before us is a Judge who has crossed even the most liberal
standards of expected and permissible expression of opinion.
There is no doubt in our mind that such conduct on the part of
the contemnor has brought disrepute to the judicial system and
has the potential of shaking the confidence of the average citizen
in the system. He has not shown the slightest remorse which
could be a mitigating factor. Such conduct and action, if
tolerated, would certainly reflect an element of weakness in the
system; no such weakness can be allowed to enter the system.
71
The conduct of the contemnor during the pendency of the
proceedings in this Court certainly constitutes criminal contempt
falling both under the heads of scandalising the court as well as
interference with the proceedings of this court. In our view, the
contemnor is therefore liable to be punished for the contempt of
this court.
26. This case, in our opinion, has importance extending beyond
the immediate problem. This case highlights two things, (1) the
need to revisit the process of selection and appointment of judges
to the constitutional courts, for that matter any member of the
judiciary at all levels; and (2) the need to set up appropriate legal
regime to deal with situations where the conduct of a Judge of a
constitutional court requires corrective measures – other than
impeachment – to be taken.
27. The conduct of the contemnor ever since his elevation to the
bench has been controversial. Obviously, there is a failure to
make an assessment of the personality of the contemnor at the
time of recommending his name for elevation. Our purpose is not
to point fingers to individuals who were responsible for
recommendation but only to highlight the system’s failure of not
72
providing an appropriate procedure for making such an
assessment. What appropriate mechanism would be suitable for
assessing the personality of the candidate who is being
considered for appointment to be a member of a constitutional
court is a matter which is to be identified after an appropriate
debate by all the concerned – the Bar, the Bench, the State and
Civil Society. But the need appears to be unquestionable.
28. We are only sad to point out that apart from the
embarrassment that this entire episode has caused to the Indian
Judiciary, there are various other instances (mercifully which are
less known to the public) of conduct of some of the members of
the judiciary which certainly would cause some embarrassment
to the system.
29. The framers of the Constitution were people of a great sense
of patriotism and maturity, men and women who maintained high
standards of civic morality. Obviously, they expected those who
are to be chosen for the higher constitutional offices or to be
appointed to public service would be chosen by assessing their
suitability (efficiency and integrity) by employing appropriate
standards. The makers of the Constitution were conscious of the
fact that ascendance to higher offices need not necessarily always
73
guarantee rectitude and the incumbent of any constitutional
office could resort to behaviour inconsistent with the nature of
the office and standards of conduct expected. Thereafter,
provisions were made in the Constitution for impeachment of
holders of various constitutional offices starting from the
President of India.
30. When it came to the members of the constitutional courts
equally, it was visualised that there can be such occasions. But
the standards and procedure for impeachment of judges are
much more rigorous for reasons obvious. There can be deviations
in the conduct of the holders of the offices of constitutional courts
which do not strictly call for impeachment of the individual or
such impeachment is not feasible. Surely there must be other
ways of dealing with such cases. The text of the Constitution is
silent in this regard. May be it is time for the nation to debate
this issue.
………………………..J. (J Chelameswar)
………………………..J. (Ranjan Gogoi) New Delhi; July 4, 2017
74
ITEM NO.701 COURT NO.1 SECTION XVII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS SUO MOTU CONTEMPT PETITION(C) No. 1/2017 IN RE : SRI JUSTICE C.S. KARNAN
WITH SLP(C) No. 14842/2015 (With WITH APPLN. (S) FOR directions and intervention and PERMISSION TO APPEAR AND ARGUE IN PERSON and Interim Relief and Office Report) Date : 09/05/2017 These petitions were called on for hearing today. CORAM : HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE DIPAK MISRA HON’BLE MR. JUSTICE J. CHELAMESWAR HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE MADAN B. LOKUR HON’BLE MR. JUSTICE PINAKI CHANDRA GHOSE HON’BLE MR. JUSTICE KURIAN JOSEPH Present: For State of West Mr. Rakesh Dwivedi, Sr. Adv. Bengal Mr. Chanchal Kr. Ganguli, Adv. Ms. Narmada, Adv. For UOI Mr. Maninder Singh, ASG Ms. Madhvi Divan, Adv. Mr. Nalin Kohli, Adv. Ms. Ranjeeta Rohatgi, Adv. Mr. Prabhash Bajaj, Adv. For Registrar Mr. K.K. Venugopal, Sr. Adv. General, High Mr. Nikhil Nayyar, Adv. Court of Madras Mr. N. Sai Vinod, Adv. Ms. Smriti Shah, Adv. Mr. Divyanshu Rai, Adv.
75
Supreme Court Mr. Rupinder Singh Suri, Sr. Adv. Bar Asson. Mr. Ajit Kr. Sinha, Sr. Adv. Mr. Gaurav Bhatia, Adv. Mr. M. Yogesh Kanna, Adv. Ms. Nithya, Adv. Mrs. Maha Lakshmi, Adv. Mr. Partha Sarathi, Adv. Ms. Uttara Babbar, Adv. Ms. Akanksha Choudhary, Adv.
UPON hearing the counsel the Court made the following O R D E R This is in continuation of this Court’s earlier order dated 09.05.2017, disposing of the Suo Motu Contempt Petition, holding Sri Justice C.S. Karnan guilty of committing contempt and sentencing him for six months imprisonment, the reasons for the same have been recorded in the two separate Reportable signed orders, which are placed on the file.
(Renuka Sadana) (Parveen Kumar) Assistant Registrar AR-cum-PS [Reportable two signed orders are placed on the file]
76
IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION SUO MOTU CONTEMPT PETITION(C) NO.1/2017
In Re: Sri Justice C.S. Karnan O R D E R
1. We have heard Mr. Rakesh Dwivedi, learned senior counsel representing the State of West Bengal, with reference to the medical examination of Sri Justice C.S. Karnan, as also, Mr. Maninder Singh, learned Additional Solicitor General of India, Mr. K.K.Venugopal, learned senior counsel representing the Registrar General, High Court of Judicature at Madras, and Mr. Rupinder Singh Suri, Senior Advocate, in his capacity as the President of the Supreme Court Bar Association. 2. On merits, we are of the considered view, that Sri Justice C.S. Karnan, has committed contempt of the judiciary. His actions constitute contempt of this Court, and of the judiciary of the gravest nature. Having found him guilty of committing contempt, we convict him accordingly. We are satisfied to punish him by sentencing him to imprisonment for six months. As a consequence, the contemnor shall not perform any administrative or judicial functions. 3. Detailed order to follow.
77
4. The sentence of six months imposed by this Court on Sri Justice C.S. Karnan, shall be executed forthwith, by the Director General of Police, West Bengal, or through a team constituted by him. 5. Since the incident of contempt includes public statements and publication of orders made by the contemnor, which were highlighted by the electronic and print media, we are of the view, that no further statements made by him should be published hereafter. Ordered accordingly. 6. Disposed of in the aforesaid terms.
…………………..CJI [JAGDISH SINGH KHEHAR] ……………………J. [DIPAK MISRA]
……………………J. [J. CHELAMESWAR]
……………………J. [RANJAN GOGOI]
……………………J. [MADAN B. LOKUR]
……………………J. [PINAKI CHANDRA GHOSE]
NEW DELHI; ……………………J. MAY 09, 2017. [KURIAN JOSEPH]
78
ITEM NO.701 COURT NO.1 SECTION XVII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS SUO MOTU CONTEMPT PETITION(C) No. 1/2017 IN RE : SRI JUSTICE C.S. KARNAN
WITH SLP(C) No. 14842/2015 (With WITH APPLN. (S) FOR directions and intervention and PERMISSION TO APPEAR AND ARGUE IN PERSON and Interim Relief and Office Report) Date : 09/05/2017 These petitions were called on for hearing today. CORAM : HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE DIPAK MISRA HON’BLE MR. JUSTICE J. CHELAMESWAR HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE MADAN B. LOKUR HON’BLE MR. JUSTICE PINAKI CHANDRA GHOSE HON’BLE MR. JUSTICE KURIAN JOSEPH Present: For State of West Mr. Rakesh Dwivedi, Sr. Adv. Bengal Mr. Chanchal Kr. Ganguli, Adv. Ms. Narmada, Adv. For UOI Mr. Maninder Singh, ASG Ms. Madhvi Divan, Adv. Mr. Nalin Kohli, Adv. Ms. Ranjeeta Rohatgi, Adv. Mr. Prabhash Bajaj, Adv. For Registrar Mr. K.K. Venugopal, Sr. Adv. General, High Mr. Nikhil Nayyar, Adv. Court of Madras Mr. N. Sai Vinod, Adv. Ms. Smriti Shah, Adv. Mr. Divyanshu Rai, Adv.
79
Supreme Court Mr. Rupinder Singh Suri, Sr. Adv. Bar Asson. Mr. Ajit Kr. Sinha, Sr. Adv. Mr. Gaurav Bhatia, Adv. Mr. M. Yogesh Kanna, Adv. Ms. Nithya, Adv. Mrs. Maha Lakshmi, Adv. Mr. Partha Sarathi, Adv. Ms. Uttara Babbar, Adv. Ms. Akanksha Choudhary, Adv.
UPON hearing the counsel the Court made the following O R D E R Suo Motu Contempt Petition stands disposed of, in terms of the signed order. List the special leave petition no. 14842/2015 before the regular Bench.
(Renuka Sadana) (Parveen Kumar) Assistant Registrar AR-cum-PS [signed order is placed on the file]

Posted in Uncategorized

interpretation of Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 (for short, “the POCSO Act”), and the primary argument of the learned counsel for the appellant is that the definition in Section 2(d) that defines “child” to mean any person below the age of 18 years, should engulf and embrace, in its connotative expanse, the “mental age” of a person or the age determined by the prevalent science pertaining to psychiatry so that a mentally retarded person or an extremely intellectually challenged person who even has crossed the biological age of 18 years can be included within the holistic conception of the term “child”.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1217­1219 OF 2017 [Arising out of S.L.P. (Crl.) Nos. 2640­2642 of 2016]

Ms. Eera                                                            Through Dr. Manjula Krippendorf          … Appellant(s)

Versus

State (Govt. of NCT of Delhi) & Anr.        …Respondent(s)

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The pivotal issue that emanates for consideration in

these appeals, by special leave, pertains to interpretation

of Section 2(d) of the Protection of Children from Sexual

Offences Act, 2012 (for short, “the POCSO Act”), and the

primary   argument   of   the   learned   counsel   for   the

appellant is that the definition in Section 2(d) that

defines “child” to mean any person below the age of 18

years, should engulf and embrace, in its connotative

expanse,   the   “mental   age”   of   a   person   or   the   age

determined   by   the   prevalent   science   pertaining   to

psychiatry so that a mentally retarded person or an

extremely intellectually  challenged person who even has

crossed the biological age of 18 years can be included

within the holistic conception of the term “child”.

3. Before I note the submissions of Ms. Aishwarya

Bhati, learned counsel for the appellant, the supporting

submissions   by   the   respondent   State   and   the

proponements in oppugnation by the learned senior

counsel who was engaged on behalf of the accused

respondent No. 2 by the Court as the said respondent

chose not to enter appearance, few facts are essential to

be noted.  The appellant is represented by her mother on

the foundation that she is suffering from Cerebral Palasy

(R.   Hemiparesis)   and,   therefore,   though   she   is

biologically 38 years of  age,  yet  her  mental  age is

approximately 6 to 8 years. In this backdrop, it is

contended that the trial has to be held by the Special

Court established under the POCSO Act.  As the facts

2

would unroll, the mother of the appellant had lodged FIR

No. 197 of 2014 at Police Station Defence Colony, New

Delhi against the respondent No. 2 alleging that he had

committed rape on her mentally retarded daughter and

on the basis of the FIR, investigation was carried on and

eventually   charge   sheet   was   laid   for   the   offence

punishable under Section 376(2)(l) of the Indian Penal

Code (IPC) before the concerned Judicial Magistrate,

who, in turn, committed the case to the Court of the

learned   Assistant   Special   Judge/Special   Fast   Track

Court, Saket, New Delhi for trial.  Many a fact has been

enumerated which need not be stated in detail.  Suffice it

to mention that the trial commenced and when the

question   of   examination   of   the   appellant   came   up,

various aspects such as camera trial, videography of the

trial, absence of congenial atmosphere and many other

issues emerged.  As the mother of the appellant felt that

the trial court was not able to address the same, the

victim through her mother, filed a petition under Section

482 of the Code of Criminal Procedure (CrPC) before the

High Court of Delhi praying, inter alia, that the matter

3

should be transferred to the Special Court under the

POCSO Act as the functional age of the prosecutrix is

hardly around 6 to 8 years and there is necessity for trial

to   be   conducted   in   a   most   congenial,   friendly   and

comfortable atmosphere and the proceeding should be

videographed.   The   High   Court   vide   order   dated

15.06.2015   issued   directions   for   making   necessary

arrangements for videography of the proceeding as the

prosecutrix mainly communicates through gestures.  The

order passed in that regard read as follows:

“Vide order dated 15th September, 2014, the learned ASJ, Special Fast Track Court, Saket had directed that the prosecutrix who is a   physically   and   mentally   challenged   girl suffering from cerebral palsy will be provided a special   educator/interpreter   and   necessary arrangements be made for videographing the in­camera trial at the time of recording of the statement   of   the   prosecutrix.   When   the evidence of the prosecutrix was sought to be recorded on 15th May, 2015 the learned Judge noted   that   the   concerned   officer   of   the vulnerable witness Court complex submitted that the videographing of the proceedings is not   permissible.   The   learned   Additional Sessions   Judge   has   sought   necessary directions   regarding   videography   from   the learned Sessions Judge (South) in this regard and has listed the matter for 27th May, 2015. It is   also   informed   by   the   learned   APP   on instructions from the investigating officer that

4

two doctors of AIIMS have been contacted who will be present on the date when the evidence of the prosecutrix has to be recorded.

Learned counsel for the petitioner states that   the   prosecutrix   is   terrified   by   the presence   of   males   and   it   would   be   thus appropriate if female doctors/interpreters are available at the time of the evidence of the prosecutrix.   Learned APP will file a status report in this regard before the next date.

In the meanwhile the learned Sessions Judge (South District) will make necessary arrangements   for   videography   of   the proceedings   as   the   prosecutrix   mostly communicates through gestures.”

4. The matter was finally disposed of vide order dated

29.06.2015 and the appellant felt aggrieved as the two

main prayers, namely, (i) transfer of the case to the

Special Court established under the POCSO Act as the

functional age of the prosecutrix is 6 to 8 years and (ii)

the transfer of the case from P.S. Defence Colony to the

Crime Branch for proper supervisional investigation were

not allowed. As the impugned order would show, the

High Court directed that the case should be assigned to

a trial court presided over by a lady Judge in Saket

Court.

5

5. When the matter was listed on 01.04.2016, it was

contended   by   Ms.   Bhati,   learned   counsel   for   the

appellant that the prosecutrix has been suffering from a

devastating mental and physical disorder since her birth

and though she is biologically aged about 38 years, she

has not mentally grown beyond six years.  In support of

her stand, a certificate of the neuro­physician and the

psychologist of AIIMS, New Delhi was filed.   She had

referred to Section 28 of the POCSO Act which deals with

Special Courts.   She had also drawn attention of the

Court to Sections 24 to 27 of the POCSO Act to highlight

that there is a special procedure for recording statement

of the child and, therefore, when medical evidence had

established the mental age, the victim’s biological age

should not be the governing yardstick but she should be

considered   as   a   child   because   she   is   intellectually

challenged and mentally retarded under the POCSO Act.

6. As the respondent No. 2 did not appear, the Court

appointed Mr. Sanjay R. Hegde, learned senior counsel,

as Amicus Curiae to argue and put forth the points on

behalf of respondent No. 2. On behalf of respondent

6

No.1,   that   is,   State   (Government   of   NCT   of   Delhi),

Mr. P.K. Dey and Mr. Siddharth Dave, learned counsel

assisted the Court.

7.  After the matter was heard, the judgment was

reserved   and   after   some   time,   an   office   note   was

circulated that the sole accused, the respondent No. 2,

had died during the pendency of the proceeding.  When

the matter was listed again because of the subsequent

event, it was contended by Ms. Bhati appearing for the

appellant that under the POCSO Act and the Rules

framed thereunder, the victim would be entitled to get

compensation and the procedure would be different.

That apart, she also submitted that after the death of the

accused,   the   grievance   still   remains   and   as   the

procedure for grant of compensation is different, this

Court may deal with the principal issue. And, I have

thought it appropriate to address the same.

8. Learned counsel for the appellant submits that

Section 2(d) that defines “child” to mean any person

below the age of eighteen years should not be conferred a

restricted meaning to convey that the words “eighteen

7

years” are singularly and exclusively associated with the

biological or chronological age and has nothing to do

with the real concept or conception of “age”.  Elaborating

the argument, she would contend that “child”, as defined

under Article 1 of the United Nations Convention on the

Rights of Children, is to mean “every human being below

the age of 18 years unless under the law applicable,

majority is attained earlier”.

9. It is urged by her that the principle of purposive

construction is required to be adopted keeping in view

the intrinsic perspective of POCSO Act and construction

should be placed on the word “age” to compositely

include biological and mental age so that the protective

umbrella meant and recognized for the child under the

law to avoid abuse and exploitation is achieved. It is

contended by her that likes of the appellant who suffer

from mental disabilities or are mentally challenged are

unable to keep pace with biological age and their mental

growth and understanding is arrested and unless they

get   the   protection   of   law   that   the   legislature   has

conceived, it would be an anathema that the law that has

8

been brought in to protect the class, that is, child, leaves

out a part of it though they are worse than the children

of   the   age   that   is   defined   under   the   POCSO   Act.

Elaborating further, she would submit that a mentally

retarded person may have the body mass, weight and

height which will be matching the chronological age or

biological age of 30 years, but in reality behaves like a

child of 8 to 10 years, for the mental age, as it is called,

stops progressing.  She has drawn a comparison between

various provisions of the IPC where the legislature has

recognized a person of unsound mind to be on the same

pedestal as child which indicates that IPC prescribes

protection on the basis of maturity of understanding, to

the   persons   suffering   from   unsoundness   of   mind.

Emphasis is on departure from the chronological age by

the legislature by laying stress on capacity to understand

the nature and consequence of the act.  She has also

referred to Chapter XXV of the CrPC that enumerates the

provisions as to the accused persons of unsound mind.

10. Learned counsel would contend that dignity of a

child is of extreme significance and this Court has

9

eloquently   accentuated   on   the   sustenance   of   such

dignity.  To buttress her submission, she has relied upon

Reena Banerjee & another v. Govt. (NCT of Delhi) and

others1,  Mofil   Khan   &   another   v.   State   of

Jharkhand2,  Suchita   Srivastava   &   another   v.

Chandigarh   Administration3,   and  Tulshidas

Kanolkar v. State of Goa4.

11. It is propounded by her that to read mental age

with biological age will not cause any violence to Section

2(d) of POCSO Act but on the contrary, it would be in

accord with the context of the scheme of the POCSO Act

and also inject life to the words which constitute the

fulcrum of the spirit of the legislation that is meant to

protect the victims.  The legislature has used the word

“child” and restricted it to age of 18 years, but when a

mentally   retarded   child   is   incapable   of   protest   and

suffers from inadequacy to understand, chronological age

should not be the guiding factor or laser beam but the

real mental age, for the cherished purpose of the POCSO 1  (2015) 11 SCC 725 2  (2015) 1 SCC 67 3  (2009) 9 SCC 1 4  (2003) 8 SCC 590

10

Act is to give protection to the child and check sexual

abuse of a child.  A literal construction, according to the

learned counsel, would defeat the intendment of the

legislature.     For   the   aforesaid   purpose,   she   has

commended us to the authorities in Bharat Singh v.

Management of New Delhi Tuberculosis Centre, New

Delhi   and   others5,  Githa   Hariharan   (Ms.)   and

another v. Reserve Bank of India and another6,

Union of India v. Prabhakaran Vijaya Kumar and

others7,  Regional Provident Fund Commissioner v.

Hooghly   Mills   Company   Limited   and   others8,

Bangalore Turf Club Limited v. Regional Director,

Employees’ State Insurance Corporation9.

12. Mr. Dey, learned counsel appearing for the first

respondent – State, submits that POCSO Act has been

introduced with a view to provide protection of the

children from the offences of sexual assault, sexual

harassment and abuse with due regard to safeguard the

5 (1986) 2 SCC 614 6 (1999) 2 SCC 228 7 (2008) 9 SCC 527 8 (2012) 2 SCC 489 9 (2014) 9 SCC 657

11

interest and well being of the children at every stage of

judicial proceeding including children friendly procedure,

recording   of   evidence   and   establishment   of   Special

Courts for the speedy trial and, therefore, a person who

is mentally challenged/retarded is required to be brought

within the definition of a child so that the life is ignited to

the piece of legislation. Learned counsel would submit

that when such a person is incapable of understanding

what is happening to her, she is equal to a child and

when such an interpretation is placed, it serves the basic

purpose  of  behind  the   Act  that the   legislature  has

intended to achieve. It is his further submission that

there is a distinction between two terms, namely, “age”

and   “years”,   for   “age”   signifies   mental   or

biological/physical   age   whereas   “years”   refer   to

chronology and hence, it is possible to interpret the word

“age” in a particular provision to mean mental age

without offending the term of the word “year” which

means year and “year” has been defined in the General

Clauses Act, 1897 as period of 365 days.  He has referred

to the Juvenile Justice (Care and Protection of Children)

12

Act, 2015 to highlight that the legislative intention there

is explicit with regard to mental capacity of a person

which would have a relevant factor to determine the

forum of trial.   It is further contended by him that if the

trial is held in case of mental retarded person whose

biological age is more than 18 years by the Special Court

as provided under the POCSO Act, the accused is no way

affected because the punishment for the offence remains

the same even if the trial is held by the Court of Session

under the CrPC.  Learned counsel in his written note of

submissions has placed reliance upon Sheikh Gulfan &

others v. Sanat Kumar Ganguli10,  Yudhishter v.

Ashok Kumar11, Pratap Singh v. State of Jharkhand

and another12, Directorate of Enforcement v. Deepak

Mahajan and another13.

13. Mr. Dave, while supporting the stand of Mr. Dey

has commended us to the decision in Deepak Mahajan

(supra).

10 AIR 1965 SC 1839 11 (1987) 1 SCC 204 12 (2005) 3 SCC 551 13 (1994) 3 SCC 440

13

14. Mr. Hegde, learned senior counsel, who has been

engaged by the Court to assist on behalf of respondent

No. 2, has referred to Article 1 of the United Nations

Convention on the Rights of the Child which has been

acceded to by India on 11.12.1992. Relying on the

definition   in   the   Black’s   Law   Dictionary   and   the

Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn.

2005 p. 175, learned senior counsel would submit that

there is distinction between mental age and chronological

age. Had it been the intention of the Parliament not to

make such a distinction, it would have included within

the protective ambit of the definition pertaining to adults

whose mental age is less than 18 years.  It is urged by

him that when the language of the dictionary clause is

clear and unambiguous, it should be given its ordinary

literal meaning. It is further argued by him that wherever

the legislature has intended to refer to other definition of

“age” including mental age, it has specifically made like

the   provisions   of   the   Juvenile   Justice   (Care   and

Protection of Children) Act, 2015 and, therefore, in the

absence of a specific provision in the POCSO Act, the

14

Court ought to adopt the actual grammatical meaning

and for the said purpose, he has drawn inspiration from

Bennion on Statutory Interpretation, 5th Edn. p.825.

He would put forth the stand that if the term “age” is

interpreted  to mean “mental  age”,  it would   lead  to

ambiguity,   chaos   and   unwarranted   delay   in   the

proceedings and also it would have the effect potentiality

to derail the trial and defeat the purpose of the Act, for

the informant will have the option to venture on the

correctness of the mental age.  Learned senior counsel

would further urge that various Courts in other parts of

the world have treated the child keeping in view the

chronological   age   unless   the   mental   age   has   been

specifically considered for inclusion by the legislature.

Mr. Hegde, in his written notes of submission, has

reproduced   passages   from  R.   v.   Sharpe14  [British

Columbia Court of Appeal],  R v. Cockerton15  [Kings

Bench] and Ogg­Moss v. R16 [Supreme Court of Canada].

According to him, when the definition of “child” in

14 BCCA 1999 416 15 [1901] 1 KB 726 16 [1984] 2 SCR 173

15

Section 2(d) is plain and intelligible, the Court ought not

add or read words into the same regard being had to the

pronouncements in  P.K. Unni v. Nirmala Industries

and others17 and Lt. Col. Prithi Pal Singh Bedi etc. v.

Union of India and others18.

15. Learned senior counsel would submit that if mental

age is read into the definition of the “child”, it will be

against the manifest intention of the legislature. As an

instance, he has referred to Section 5(k) of the POCSO

Act which alludes to child’s mental or physical disability

in the context of aggravated penetrated sexual assault.

He has submitted that if the term “age” is interpreted to

engulf mental and biological age, the scheme of the

POCSO   Act   shall   be   defeated   and   it   will   lead   to

inconsistencies. For the said purpose, he has referred to

the concept of “mental age” in respect of which the

scientific views and methods vary. The eventual stand of

the learned senior counsel is that mental age with a

proximate figure can never be constant and is likely to

17 (1990) 2 SCC 378 18 (1982) 3 SCC 140 : [1983] 1 SCR 393

16

vary with time and surrounding circumstances and,

therefore, interpreting the word “age” falling under the

definition of “child” to include mental age also would

breach the settled principles of criminal jurisprudence

and usher in uncertainty.

16. Having noted the rivalised submissions, I shall

presently   focus   on   the   preamble,   the   Statement   of

Objects and Reasons and the essential features of the

POCSO Act.  The said piece of legislation came into effect

on 19.6.2012 and has a long Preamble.   The relevant

parts of the Statement of Objects and Reasons of the

POCSO Act are as follows:

“1. …..

2. …..

3. The date collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children.  This is corroborated by the ‘Study on Child Abuse: India 2007’ conducted by the Ministry of Women and Child Development. Moreover, sexual offences against children are not adequately addressed by the existing laws. A large number of such offences are neither specifically   provided   for   nor   are   they adequately penalized.   The interests of the child, both as a victim as well as a witness, need to be protected.  It is felt that offences

17

against children need to be defined explicitly and   countered   through   commensurate penalties as an effective deterrence.   4. It is, therefore, proposed to enact a self contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and   pornography   with   due   regard   for safeguarding the interest and well being of the child at every stage of the judicial process incorporating   child­friendly   procedures   for reporting, recording of evidence, investigation and   trial   of   offences   and   provision   for establishment of Special Courts for speedy trial of such offences.

5. …..

6. …..

7. …..”

17. The Preamble of the POCSO Act reads thus:

“An Act to protect children from offences of sexual   assault,   sexual   harassment   and pornography and provide for establishment of Special Courts for trial of such offences and for matters   connected   therewith   or   incidental thereto.

WHEREAS   clause   (3)   of   article   15   of   the Constitution, inter alia, empowers the State to make special provisions for children;

AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by   the   General   Assembly   of   the   United Nations,   which   has   prescribed   a   set   of

18

standards to be followed by all State parties in securing the best interests of the child;

AND WHEREAS it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through   all   stages   of   a   judicial   process involving the child;

AND WHEREAS it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to   ensure   the   healthy   physical,   emotional, intellectual   and   social   development   of   the child;

AND   WHEREAS   the   State   parties   to   the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral   and   multilateral   measures   to prevent –

a. the inducement or coercion of a child to engage in any unlawful sexual activity;

b.   the   exploitative   use   of   children   in prostitution or other unlawful sexual practices;

c.   the   exploitative   use   of   children   in pornographic performances and materials;

AND WHEREAS sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed”.

18. The purpose of referring to the Statement of Objects

and Reasons and the Preamble of the POCSO Act is to

19

appreciate that the very purpose of bringing a legislation

of the present nature is to protect the children from the

sexual assault, harassment and exploitation, and to

secure the best interest of the child.  On an avid and

diligent discernment of the preamble, it is manifest that

it recognizes the necessity of the right to privacy and

confidentiality of a child to be protected and respected by

every person by all means and through all stages of a

judicial process involving the child.  Best interest and

well   being   are   regarded   as   being   of   paramount

importance at every stage to ensure the healthy physical,

emotional, intellectual and social development of the

child.  There is also a stipulation that sexual exploitation

and sexual abuse are heinous offences and need to be

effectively addressed.   The statement of objects and

reasons provides regard being had to the constitutional

mandate, to direct its policy towards securing that the

tender age of children is not abused and their childhood

is protected against exploitation and they are given

facilities   to   develop   in   a   healthy   manner   and   in

conditions of freedom and dignity.   There is also a

20

mention which is quite significant that interest of the

child, both as a victim as well as a witness, needs to be

protected.   The   stress   is   on   providing   child­friendly

procedure. Dignity of the child has been laid immense

emphasis in the scheme of legislation.  Protection and

interest occupy the seminal place in the text of the

POCSO Act.

19. Having   analysed   the   Statement   of   Objects   and

Reasons and the Preamble of the POCSO Act, it is

necessary to appreciate what precisely the POCSO Act

projects.

20. Chapter II of the POCSO Act deals with sexual

offences against children. Part A of the said Chapter

provides for penetrative sexual assault and punishment

therefor. Section 3 stipulates what is the penetrative

sexual assault and Section 4 provides punishment for

such offence. Part B of the said Chapter deals with

aggravated penetrative sexual assault and punishment

therefor.   Section   5   copiously   deals   with   what   can

constitute aggravated penetration sexual assault.  It is

extremely   significant   to   note   that   Section   5(a)

21

enumerates number of circumstances where the offence

becomes aggravated one.  It includes in its ambit various

situations and also certain categories of persons. The

provision is quite elaborate. Section 5(k) to which my

attention has been drawn reads thus:

“(k) whoever, taking advantage of a child’s mental or physical disability, commits penetrative sexual assault on the child;”

The aforesaid provision, as is evident, lays stress on

the mental disability of the child.

21. Part C of Chapter II deals with sexual assault and

punishment therefor. Section 7 lays down about the

sexual assault. Part D deals with aggravated sexual

assault and punishment therefor. Section 9 deals with

aggravated sexual assault which is akin to Section 5.

Part E deals with sexual harassment and punishment

therefor. The said harassment lays down various acts

which will amount to sexual harassment.

22. On a reading of the aforesaid Chapters, it is quite

manifest and limpid that the legislature has intended to

protect the child from any kind of sexual assault and

harassment.  It has also laid stress upon the mental and

22

physical disability of the child.   The child, as per the

definition, is the principal protagonist and the POCSO

Act protects the child from any sexual act and also takes

into   consideration   his   mental   disability.   Thus,   the

legislature was alive to the condition of mental disability.

Chapter III of the POCSO Act deals with using child for

pornographic   purposes   and   punishment   therefor.

Chapter   IV   deals   with   abetment   of   and   attempt  to

commit an offence.  Chapter V deals with the procedure

for   reporting   of   cases   and   Chapter   VI   provides   for

procedure for recording statement of the child.  Sections

24 to 27, which have been pressed into service by

Ms. Bhati, relate to recording of statement of a child;

recording   of   statement   of   a   child   by   Magistrate;

additional provisions regarding statement to be recorded

and medical examination of a child.

23. Section 27 stipulates that medical examination of a

child in respect of whom any offence has been committed

under the Act is to be conducted in accordance with

Section 164A of the CrPC.  It is also significant to note

that   the   said   examination   has   to   be   done

23

notwithstanding   an   FIR   or   complaint   has   not   been

registered for the offences under the POCSO Act.  I shall

refer to Section 164A CrPC at a later stage.  Section 28 of

the POCSO Act deals with Special Courts.  Section 31

provides that the CrPC shall apply to the proceedings

before a Special Court.  Section 32 requires the State

Government to appoint a Special Public Prosecutor for

every Special Court for conducting the cases under the

provisions of the POCSO Act. Chapter VIII deals with the

procedure   and   powers   of   the   Special   Courts   and

recording of evidence.  Section 35 provides for a period

for recording of evidence of child and disposal of case.

Section 36 stipulates that child should not see the

accused at the time of testifying.   The said provision

protects the child and casts an obligation on the Special

Court to see that the child, in no way, is exposed to the

accused at the time of recording of evidence.   Recording

of the statement of a child is through video conferencing

or by utilizing single visibility mirrors or curtains or any

other device is permissible.  This provision has its own

sanctity.  Section 37 deals with trials to be conducted in

24

camera   and   Section   38   provides   assistance   of   an

interpreter or expert while recording evidence of a child.

Section 42A lays the postulate that POCSO Act is not in

derogation of the provisions of any other law.

24. Section 45 empowers the Central Government to

make rules for carrying out the purposes of the POCSO

Act.   In exercise of powers conferred under Section 45, a

set of rules, namely, the Protection of Children from

Sexual Offences Rules, 2012 (‘2012 Rules’) has been

framed and the said Rules have come into force on

14.11.2012. Rule 7 which deals with compensation reads

as under:

“7.  Compensation  ­  (1) The Special Court may, in appropriate cases, on its own or on an application filed by or on behalf of the child, pass an order for interim compensation to meet the immediate needs of the child for relief or rehabilitation at any stage after registration of the First Information Report. Such interim compensation   paid   to   the   child   shall   be adjusted against the final compensation, if any.

(2)  The Special Court may, on its own or on an application filed by or on behalf of the victim, recommend the award of compensation where the accused is convicted, or where the case ends in acquittal or discharge, or the accused is not traced or identified, and in the

25

opinion of the Special Court the child has suffered loss or injury as a result of that offence.

(3) Where the Special Court, under sub­section (8) of section 33 of the Act read with subsections (2) and (3) of section 357A of the Code of Criminal Procedure, makes a direction for the award of compensation to the victim, it shall take into account all relevant factors relating to the loss or injury caused to the victim, including the following:­    (i)  type of abuse, gravity of the offence and the severity of the mental or physical harm or injury suffered by the child;

(ii)  the expenditure incurred or likely to be incurred on his medical treatment for physical and/or mental health;

(iii)  loss   of   educational   opportunity   as   a consequence of the offence, including absence from school due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason;

(iv)   loss of employment as a result of the offence,   including   absence   from   place   of employment   due   to  mental   trauma,   bodily injury, medical treatment, investigation and trial of the offence, or any other reason;

(v)     the  relationship   of the  child to the offender, if any;

(vi)   whether the abuse was a single isolated incidence or whether the abuse took place over a period of time;

26

(vii)   whether the child became pregnant as a result of the offence;

(viii) whether the child contracted a sexually transmitted disease (STD) as a result of  the offence;

(ix)  whether   the   child   contracted   human immunodeficiency virus (HIV) as a result of the offence;

(x)   any disability suffered by the child as a result of the offence;

(xi)   financial condition of the child against whom the offence has been committed so as to determine his need for rehabilitation;

(xii)  any other factor that the Special Court may consider to be relevant.

(4) The compensation awarded by the Special Court is to be paid by the State Government from the Victims Compensation Fund or other scheme   or   fund   established   by  it  for   the purposes of compensating and rehabilitating victims under section 357A of the Code of Criminal Procedure or any other laws for the time being in force, or, where such fund or scheme   does   not   exist,   by   the   State Government.

(5)  The   State   Government   shall   pay   the compensation ordered by the Special Court within 30 days of receipt of such order.    (6)  Nothing in these rules shall prevent a child or his parent or guardian or any other person in whom the child has trust and confidence from submitting an application for seeking

27

relief under any other rules or scheme of the Central Government or State Government.”

25. I have extracted the relevant provisions  of the

POCSO Act and referred to the schematic content in its

perspective context.   The enthusiastic submissions of

Ms. Bhati and the submission advanced in support by

Mr. Dey are meant to urge the Court to adopt the

purposive approach regard being had to the centripodal

interest   of   the   “child”   that   can,   in   its   connotative

contextual   expanse,   include   a   person   who   has   not

mentally grown in age, though may have felt the sketchy

shadow of biological years.  Their accent is not only on

the provisions of the Act but also on the methodology of

computation under the POCSO Act.

26. Presently, I shall refer to certain authorities as

regards the purposive interpretations and its contours,

for learned counsel for the appellant would like us to

perceive the provision through the said magnified glass

using different lens. In  Cabell v. Markhan19  Learned

19 148 F 2d 737 (2d Cir 1945)

28

Hand,   J.   articulated   the   merits   of   purposive

interpretation:

“Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily   the   most   reliable,   source   of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to   accomplish,   whose   sympathetic   and imaginative discovery is the surest guide to their meaning.”

 

27.  The House of Lords in  Regina (Quintavalle) v.

Secretary of State for Health20 observed:

“The pendulum has swung towards purposive methods of construction. This change was not initiated   by   the   teleological   approach   of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive   approach   by   Lord   Blackburn   in River Wear Commissioners v. Adamson21. In any   event,   nowadays   the   shift   towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context, e.g. social welfare legislation and tax statutes may have to be approached somewhat differently. …”

20  [2003] UKHL 13 : [2003] 2 AC 687 : [2003] 2 WLR 692 (HL) 21 (1877) LR 2 AC 743 at p. 763 (HL)

29

28.  The above expansion of purposive interpretation

has been approvingly quoted by the majority in Abhiram

Singh   v.   C.D.   Commachen   (dead)   by   legal

representatives and others22 and that is why Section

123(3) of the Representation of the People Act, 1951 has

been   construed   keeping   in   view   electorate­centric

interpretation rather than candidate­centric one. The

submission   is   that   the   purposive   interpretation   has

become the elan vital of statutory interpretation because

of progressive social climate and Judges’ statesmanship.

Krishna Iyer, J., in his inimitable style, had said “when

legislative purpose or intention is lost, then the process

of interpretation is like to adorn the skin, and to miss the

soul”.  A court has to be progressive in its thought and

should   follow   the   path   of   construction   that

comprehensively meets the legislative intention.   If a

Judge gets stuck with the idea that construction is the

safest, the enactment is not fructified, the purpose is

missed and the soul is dismissed. A narrow construction

22 (2017) 2 SCC 629

30

of a concept invites a hazard whereas a broad exposition

enlarges the sweep and achieves the statutory purpose.

These are certain abstractions.  It will apply in a different

manner in different statutes, like tax law, penal law,

social welfare legislation, excise law, election law, etc.

That apart, the law intends to remedy a mischief.  It also

sets goal and has a remedial intent. It also states certain

things which clearly mean what has been said.  In that

case, there is no room for the Judge and solely because

he is a constructionist Judge, cannot possess such tool

to fly in the realm of fanciful area and confer a different

meaning. His ability to create in the name of judicial

statesmanship is not limitless. It has boundaries. He

cannot afford to romance all the time with the science of

interpretation. Keeping these aspects in mind, I shall

presently   refer   to   some   authorities   where   purposive

construction has been adopted and where it has not

been taken recourse to and the cardinal principle for the

same.

31

29. In Gurmej Singh v. Pratap Singh Kairon23, the

Constitution   Bench   was   dealing   with   the   true

construction of Section 123(7) of the Representation of

the People Act, 1951. The question that arose before the

Constitution Bench was whether a Lambardar, a person

in the service of Government or covered by any of the

clauses of Section 123(7) of the 1951 Act.  The Election

Tribunal had held that Lambardar was a revenue officer.

The High Court set at naught the finding recorded by the

Election Tribunal by opining that Lambardars though

appointed   by   the   Government   for   the   purpose   of

collecting the land revenue and receiving a statutory

percentage   of   the   sums   realized   by   them   as   their

remuneration for so doing, yet they were included along

with village accountants who are called Patwaris in State

and hence, they are clearly excluded by the provisions of

clause (f).   It was contended before this Court that

Lambardar is a revenue officer and village accountant

within the meaning of clause (f) of sub­section (7) of

Section 123 of the 1951 Act.   While dealing with the

23  AIR 1960 SC 122

32

submission, the Court held that it is an elementary rule

that construction of a section is to be made of all the

parts together and not of one part only by itself and that

phrases are to be construed according to the rules of

grammar.  Proceeding further, the Court observed that:

“The   words   “revenue   officers”,   in  whatever sense   they   are   used,   cannot   obviously comprehend   officers   who   are   not   revenue officers, and in that situation there is no necessity to exclude such officers from the group   of   revenue   officers.   The   Legislative device of exclusion is adopted only to exclude a part from the whole, which, but for the exclusion, continues to be part of it. This interpretation must be rejected as it involves the   recognition   of   words   which   are surplusage.”

 

The aforesaid analysis clearly shows that a section

has to be construed in entirety and not of one part only

and further there should be no attempt to recognize

words which are surplusage.

30. In  State of Himachal Pradesh & another v.

Kailash Chand Mahajan & others24, the Court referred

to   a   passage   from   Francis   Bennion’s  Statutory

Interpretation  (1984   edn.)   which   illustrates   the

24  1992 Supp. (2) SCC 351

33

distinction   between  the  legislative  intention   and  the

purpose or object of the legislation.  The said passage

reads as follows:

“The distinction between the purpose or object of an enactment and the legislative intention governing it is that the former relates to the mischief to which the enactment is directed and its remedy, while the latter relates to the legal meaning of the enactment.”

31. After reproducing the same, the Court observed

that there is a great distinction between the two. While

the object of legislation is to provide a remedy for the

malady, on the contrary, the legislative intention relates

to the meaning from the exposition of the remedy as

enacted. The Court further ruled that for determining the

purpose of legislation,  it is permissible to look into the

circumstances which were prevalent at that time when

the law was enacted and which necessitated the passing

of   that   enactment   and   for   the   limited   purpose   of

appreciating the background and the antecedent factual

matrix leading to the legislation, it is open to the court to

look into the ‘Statement of Objects and Reasons’ of the

34

Bill   which   accentuated   the   statement   to   provide   a

remedy for the then existing malady.

32. It is worthy to state here that where a purposive

construction is conceived of or the said principle is

sought to be applied, the context becomes an important

and influential aspect and when one tries to understand

the legislative intention, the meaning from the exposition

of the purpose or the effort to have the remedy through

the enactment has to be appositely perceived.

33. In  R.M.D. Chamarbaugwalla  and another v.

Union of India and another25, Sections 4 and 5 of the

Prize Competitions Act (42 of 1955) were impugned as

unconstitutional.  The object of the said legislation, as

stated in the preamble was “to provide for the control

and regulation of prize competitions.”  Section 2(d) of the

said Act defined “prize competition” as meaning “any

competition   (whether   called   a   cross­word   prize

competition, a missing­word prize competition, a picture

prize competition or by any other name), in which prizes

are offered for the solution of any puzzle based upon the

25 AIR 1957 SC 628

35

building up, arrangement, combination or permutation of

letters, words or figures.” The question arose whether

that   applies   to   prize   competition   in   which   success

depends on a substantial degree of skill.     It was

contended before the Court that the language employed

in Section 2(d) being clear and unambiguous, it was not

open to the Court to read into any limitations which are

not   there   by   reference   to   other   and   extraneous

considerations.     Dealing   with   the   same,   the   Court

observed   that   when   a   question   arises   as   to   the

interpretation to be put on an enactment, what the Court

has to do is to ascertain “the intent of them that make

it”, and that must, of course, be gathered from the words

actually used in the statute. That, however, does not

mean   that   the   decision   should   rest   on   a   literal

interpretation of the words used in disregard of all other

materials. The Court further opined that “The literal

construction then”, says Maxwell on  Interpretation of

Statutes, 10th Edn., p. 19, “has, in general, but prima

facie  preference. To arrive at the real meaning, it is

always necessary to get an exact conception of the aim,

36

scope and object of the whole Act; to consider, according

to Lord Coke: (1) What was the law before the Act was

passed; (2) What was the mischief or defect for which the

law had not provided; (3) What remedy Parliament has

appointed; and (4) The reason of the remedy”.  Turning to

the history of the legislation, various provisions of the

said Act and doctrine of severability, the Court came to

hold that it will not be questioned that competitions in

which success depends to a substantial extent on skill

and competitions in which it does not so depend, form

two   distinct   and   separate   categories.   The   difference

between the two classes of competitions is as clear­cut as

that between commercial and wagering contracts.  The

Court further held that whether the Parliament would

have enacted the law in question if it had known that it

would fail as regards competitions involving skill, there

can be no doubt, having regard to the history of the

legislation, as to what gives the answer.  Nor does the

restriction of the impugned provisions to competitions of

a gambling character affect either the texture or the

colour of the Act; nor do the provisions require to be

37

touched and re­written before they could be applied to

them. They will squarely apply to them on their own

terms and in their true spirit, and form a code complete

in   themselves   with   reference   to   the   subject.   The

conclusion, the Court said, was that it was inescapable

that the impugned provisions, assuming that they apply

by virtue of the definition in Section 2(d) to all kinds of

competitions,   were   severable   in   their   application   to

competitions in which success did not depend upon any

substantial extent on skill.

34. The aforesaid authority has identified two clear cut

classes of prize competitions and ultimately applied the

doctrine of severance.  The Court was not persuaded by

the laudable object that the Parliament intended to

control and regulate the prize competition but keeping in

view all the factors that can legitimately be taken into

account, interpreted the provision.  Thus, the Court was

cautious and only tried to take into account what could

legitimately be taken into consideration.

38

35.  In  Commissioner   of   Income­tax,   Madhya

Pradesh v. Shrimati Sodra Devi26 the Court ruled that

unless there is any such ambiguity it would not be open

to   the   Court   to   depart   from   the   normal   rule   of

construction which is that the intention of the legislature

should be primarily gathered from the words which are

used. It is only when the words used are ambiguous that

they would stand to be examined and construed in the

light of surrounding circumstances and constitutional

principle and practice.  For the said purpose, the Court

referred to the view of Lord Ashbourne in  Nairn  v.

University of St. Andrews27.

36. In the said case, the Court referred to the objects

and reasons of the Income­Tax Act, 1922 and turned to

Section   16(3)   to   understand   the   intention   of   the

legislature and stated thus:

“27. … If this background of the enactment of Section 16(3) is borne in mind, there is no room   for   any   doubt   that   howsoever   that mischief was sought to be remedied by the amending   act,   the   only   intention   of   the Legislature in doing so was to include the

26 AIR 1957 SC 832 27 1909 AC 147

39

income derived by the wife or a minor child, in the computation of the total income of the male assessee, the husband or the father, as the   case   may   be,   for   the   purpose   of assessment.

If that was the position, howsoever wide the words “any individual” or “such individual” as used in Section 16(3) and Section 16(3)(a) may appear to be so as to include within their connotation the male as well as the female of the species taken by themselves, these words in the context could only have been meant as restricted to the male and not including the female of the species. If these words are used as referring only to the male of the species the whole of the Section 16(3)(a) can be read harmoniously   in   the   manner   above comprehending within its scope all the four cases specified in sub­clauses (i) to (iv) thereof and so also Section 16(3)(b).

We   are   therefore   of   opinion   that   the words “any individual” and “such individual” occurring in Section 16(3) and Section 16(3)(a) of the Act are restricted in their connotation to mean only the male of the species, and do not include the female of the species, even though by a disjunctive reading of the expression “the wife” or “a minor child” of “such individual” in Section 16(3)(a) and the expression “by such individual” for the benefit of his wife or a minor child or both in Section 16(3)(b), it may be possible in the particular instances of the mothers   being   connected   with   the   minor children   in   the   manner   suggested   by   the Revenue to include the mothers also within the   connotation   of   these   words.   Such inclusion   which   involves   different interpretations of the words “any individual” or

40

“such   individual”   in   the   different   contexts could   never   have   been   intended   by   the legislature and would in any event involve the addition of the words “as the case may be” which addition is not normally permissible in the interpretation of a statute.”

37. Though the case related to the interpretation of a

taxing statute and not a social welfare legislation, yet the

Court kept in view the surrounding circumstances and

the reasons that led to the passing of the legislation and

further opined that the meaning sought to be placed by

the revenue could not be conceived of without addition of

words which is not normally permissible in the statute. It

had also ruled that the Court should avoid bringing a

particular category within the expansive connotation of

the words used.

38. In Sheikh Gulfan (supra), the controversy related

to construction of Section 30(c) of the Calcutta Thika

Tenancy Act, 1949.  I need not state the facts of the case.

Section 30(c) of the said Act read as follows:

“Section 30: Nothing in this Act shall apply to — x x x x

41

(c) any land which is required for carrying out any   of   the   provisions   of   the   Calcutta Improvement Act, 1911.”

 

39. While interpreting the said provision, the Court

observed that the words used in the statute were simple,

but their construction was not easy and in that context,

it held, on a careful consideration and scrutiny of Section

30(c), the inevitable conclusion was that the words used

in Section 30(c) did not justify the conclusion that a

private landholder was intended to be equated with

Government   or   with   the   other   special   bodies   or

authorities   whose   lands   were   exempted   from   the

operation of the Act by Section 30.  The Court further

ruled   that   the   legislature   never   intended   that   the

provisions of the Act should cease to apply to all lands

which were comprised in the scheme, because such a

provision   would  appear   to  be   inconsistent   with  the

categories of cases covered by clauses (a) and (b) of

Section 41.  Addressing on the issue of the intention of

the legislature in enacting Section 30(c), the Court held

that it would have been easy for the legislature to say

42

that   lands   comprised   in   the   improvement   schemes

should be exempted from the application of the Act.

Section   30   had   provided   for   an   exception   to   the

application of the beneficent provisions of the Act and it

would not be unreasonable to hold that even if Section

30(c) was reasonably capable of the construction, the

Court should prefer the alternative construction which is

also reasonably possible. In construing the provisions

which   provide   for   exceptions   to   the   applicability   of

beneficent legislation, if two constructions are reasonably

possible, the Court would be justified in preferring that

construction which helps to carry out the beneficent

purpose of the Act and does not unduly expand the area

or the scope of the exception.

40.  On a proper analysis of the aforesaid authority, it

is clear as crystal that when two constructions are

reasonably possible, preference should go to one which

helps to carry out the beneficent purpose of the Act; and

that apart, the said interpretation should not unduly

expand the scope of a provision.  Thus, the Court has to

be careful and cautious while adopting an alternative

43

reasonable   interpretation.   The   acceptability   of   the

alternative reasonable construction should be within the

permissible ambit of the Act.  To elaborate, introduction

of theory of balance cannot be on thin air and in any

case, the Courts, bent with the idea to engulf a concept

within the statutory parameters, should not pave the

path of expansion that the provision by so stretch of

examination envisages.

41. In Pratap Singh (supra), the Constitution Bench

was required to resolve the conflicting views between

Arnit Das v. State of Bihar28 and Umesh Chandra v.

State of Rajasthan29  and in that context, the issue

before   the   larger   Bench   was   whether   the   date   of

occurrence will be the reckoning date for determining the

age of the alleged offender as juvenile offender or the date

when he is produced in the court/competent authority

under   the   Juvenile   Justice   Act,   1986.     The   Court

adverted to Section 2 of the said Act that dealt with

presumption and determination of age, and Section 32

28 (2000) 5 SCC 488  29 (1982) 2 SCC 202

44

that provided presumption and determination of age.

Referring to the said Section, it was contended that the

word “is” used in two places of the Section and that the

word “is” suggests that for determination  of age of

juvenile the date of production would be the reckoning

date as the inquiry with regard to his age begins from the

date he is brought before the court and not otherwise.

The Court held that the word “is” employed in Section 32

is referable to a juvenile who is said to have committed

an offence on the date of the occurrence.  To arrive at the

said conclusion, the Court ruled that  the legislative

intendment underlying Sections 3 and 26 read with the

preamble,   aims   and   objects   of   the   Act   is   clearly

discernible   and   a   conjoint   reading   of   the   sections,

preamble, aims and objects of the Act leaves no manner

of   doubt   that   the   legislature   intended   to   provide

protection, treatment, development and rehabilitation of

neglected   or   delinquent   juveniles   and   for   the

adjudication thereof.  It further proceeded to say that the

whole object of the Act is to provide for the care,

protection, treatment, development and rehabilitation of

45

juveniles and the Act being a benevolent legislation, an

interpretation must be given which would advance the

cause of the legislation, that is, to give benefit to the

juveniles.

42. This decision has to be carefully understood.   It

dissected the provision from which it was discernible

that the age of the juvenile is the date of occurrence and

the   said   construction   is   in   consonance   with   the

legislative   objective.   There   is   neither   abnormally

stretched interpretation nor the subject of the Act is read

out of context.  Thus, the context and the exposition of

intention of words in the schematic backdrop struck a

harmonious bond.

43.  In  Shankar   Kisanrao   Khade   v.   State   of

Maharashtra30, the Court, taking into consideration the

conduct of the police for not registering a case under

Section   377   IPC   against   the   accused,   the   agony

undergone   by   a   child   of   11   years   with   moderate

intellectual disability, non­reporting of offence of rape

committed on her after having witnessed the incident

30 (2013) 5 SCC 546

46

either to the local police or to the Juvenile Justice Board,

gave certain directions for compliance in future which

are necessary to protect the children from such sexual

abuses. The Court ruled that it has a duty to do so

because the Court has guardianship over minor children,

especially with regard to the children having intellectual

disability, since they are suffering from legal disability.

44. I may hasten to state here that observations and

directions given in the said case are absolutely within the

permissible limits of Juvenile Justice Act, 2000 and as

well as CrPC.   Accentuation on duty and role of the

Court in the said case do not throw any laser beam or

show the guiding principle for interpreting the definition

of the word “child” as used in Section 2(d) of the POCSO

Act.

45.  In  Chandra Mohan v. State of Uttar Pradesh

and others31, Subba Rao, CJ, while speaking for the

Bench, had a pragmatic approach. The learned Chief

Justice held that if two constructions are possible then

the Court must adopt that which will ensure smooth and

31 AIR 1966 SC 1987

47

harmonious working of the Constitution and eschew the

other which will lead to absurdity or give rise to practical

inconvenience or make well established provisions of

existing law nugatory. I have referred to this decision as

it used the words, “give rise to practical inconvenience”.

46.  In Deepak Mahajan (supra), the Court referred to a

passage from Maxwell  on Interpretation  of Statutes,

Tenth Edn., at p. 229 which is extracted below:

“Where   the   language   of   a   statute,   in   its ordinary   meaning   and   grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or   injustice,   presumably   not   intended,   a construction   may   be   put   upon   it   which modifies the meaning of the words, and even the structure of the sentence. … Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman’s unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used.”

47. The Court also referred to various other decisions

and finally ruled that it is permissible for courts to have

functional   approaches   and   look   into   the   legislative

intention and sometimes it may be even necessary to go

behind the words and enactment and take other factors

48

into   consideration   to   give   effect   to   the   legislative

intention and to the purpose and spirit of the enactment

so that no absurdity or practical inconvenience may

result and the legislative exercise and its scope and

object may not become futile.

48. As the aforesaid statement would show that the

Court has been inclined to adopt a functional approach

to   arrive   at   the   legislative   intention.     Needless   to

emphasise, there has to be a necessity to do so.

49.   In Reserve Bank of India v. Peerless General

Finance   and   Investment   Co.   Ltd.   &   others32,

Chinnappa Reddy, J., emphasizing on the importance of

the text and context in which every word is used in the

matter of interpretation of statutes, opined:

“Interpretation must depend on the text and the   context.   They   are   the   bases   of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it   was   enacted.   With   this   knowledge,   the statute must be read, first as a whole and then section by section, clause by clause, phrase by

32 (1987) 1 SCC 424

49

phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute­maker, provided by such   context,   its   scheme,   the   sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.”

 

The aforesaid passage by Chinnappa Reddy, J. had

been referred to and placed reliance upon to appreciate

the context and the purpose regard being had to the

nature   of   the   text.     The   learned   Judge   has   also

emphasized   that   no   words   of   a   statute   should   be

construed in isolation.

50.  In Union of India v. Elphinstone Spinning and

Weaving Co. Ltd. and others33, the Constitution Bench,

while dealing with the concept of interpretation and the

duty   of   the   Judge,   opined   that   while  examining   a

particular statute for finding out the legislative intent it

33 (2001) 4 SCC 139

50

is the attitude of Judges in arriving at a solution by

striking a balance between the letter and spirit of the

statute without acknowledging that they have in any way

supplement the statute would be the proper criteria. The

duty of Judges is to expound and not to legislate is a

fundamental rule. There is, no doubt, a marginal area in

which the courts mould or creatively interpret legislation

and they are thus finishers, refiners and polishers of

legislation which comes to them in a state requiring

varying degrees of further processing. Reference in this

context was made to Corocraft Ltd. v. Pan American

Airways Inc.34 and  State of Haryana & others v.

Sampuran   Singh  &   others35.   The   Court   further

observed that by no stretch of imagination a Judge is

entitled to add something more than what is there in the

statute by way of a supposed intention of the legislature.

The cardinal principle of construction of statute is that

the true or legal meaning of an enactment is derived by

considering   the   meaning   of   the   words   used   in   the

enactment in the light of any discernible purpose or 34 (1968) 3 WLR 714, p.732, 35 (1975) 2 SCC 810

51

object which comprehends the mischief and its remedy

to which the enactment is directed.  In the said case,

dwelling upon the concept of context, the larger Bench

opined that the context means; the statute as a whole,

the previous state of law, other statutes in pari materia,

the general scope of the statute and the mischief that it

was intended to remedy. It was further ruled that long

title which precedes is a part of an Act itself and is

admissible as an aid to its construction. That apart, the

preamble of an Act, no doubt, can also be read along

with other provisions of the Act to find out the meaning

of the words in enacting provisions to decide whether

they are clear or ambiguous but the preamble in itself

not being an enacting provision is not of the same weight

as an aid to construction of a Section of the Act as are

other relevant enacting words to be found elsewhere in

the Act. The utility of the preamble diminishes on a

conclusion as to clarity of enacting provisions. It is

therefore said that the preamble is not to influence the

meaning   otherwise   ascribable   to   the   enacting   parts

unless there is a compelling reason for it.

52

51. In Central Bank of India v. State of Kerala and

others36,   the   three­Judge   Bench,   speaking   through

Singhvi, J., quoted Professor H.A. Smith as has been

quoted by Justice G.P. Singh in his book Principles of

Statutory   Interpretation.   The   said   passage   is

reproduced below:

“‘No word’, says Professor H.A. Smith ‘has an absolute meaning, for no words can be defined in   vacuo,   or   without   reference   to   some context’. According to Sutherland there is a ‘basic   fallacy’   in   saying   ‘that   words   have meaning in and of themselves’, and ‘reference to   the   abstract   meaning   of   words’,   states Craies, ‘if there be any such thing, is of little value   in   interpreting   statutes’.   …   in determining   the   meaning   of   any   word   or phrase in a statute the first question to be asked is — ‘What is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word or phrase.’ The   context,   as   already   seen,   in   the construction of statutes, means the statute as a whole, the previous state of the law, other statutes in pari materia, the general scope of the   statute   and   the   mischief   that   it   was intended to remedy.”

36 (2009) 4 SCC 94

53

52. The Court thereafter referred to the authorities in

Poppatlal Shah v. State of Madras37  and  Peerless

General Finance and Investment Co. Ltd. (supra) and

quoted observations of Lord Steyn in R (Westminister

City Council) v. National Asylum Support Service38. I

think it apposite to reproduce the same:

“5. … The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used. It follows that the context must always be identified and considered before the process of construction or during it. It is, therefore, wrong to say that the court may only resort to evidence of the contextual   scene   when   an   ambiguity   has arisen.”

53. In Chief Justice of Andhra Pradesh & others v.

L.V.A. Dixitulu & others39, it has been ruled that the

primary   principle   of   interpretation   is   that   a

constitutional or statutory provision should be construed

‘according to the intent of they that made it’ (Coke), and

normally, such intent is gathered from the language of

the   provision.   If   the   language   or   the   phraseology

employed by the legislation is precise and plain and thus

37 AIR 1953 SC 274 38 (2002) 1 WLR 2956 : (2002) 4 All ER 654 (HL) 39 (1979) 2 SCC 34

54

by itself, proclaims the legislative intent in unequivocal

terms, the same must be given effect to, regardless of the

consequences that may follow, but if the words used in

the provision are imprecise, protean or evocative or can

reasonably bear meanings more than one, the rule of

strict grammatical construction ceases to be a sure guide

to reach at the real legislative intent. In such a case, in

order to ascertain the true meaning of the terms and

phrases employed, it is legitimate for the court to go

beyond the arid literal confines of the provision and to

call in aid other well­recognised rules of construction,

such as its legislative history, the basic scheme and

framework   of   the   statute   as   a  whole,   each   portion

throwing light on the rest, the purpose of the legislation,

the object sought to be achieved, and the consequences

that may flow from the adoption of one in preference to

the other possible interpretation. Thus, the Court in

certain situations allows room to go beyond the confines

of the literal meaning and to take recourse to other aids

for construction. Consequence of preference of one on

the other also gets accent.

55

54. In Kehar Singh & Ors v. State (Delhi Admn.)40,

the Court ruled that the Court should not consider any

provision out of the framework of the statute and not

view the provisions as abstract principles separated from

the motive force behind. It is the duty of the Court to

consider the provisions in the circumstances to which

they owe their origin and to ensure coherence and

consistency within the law as a whole and to avoid

undesirable   consequences.   That   apart,   the   said

adventure, no doubt, enlarges the discretion of the Court

as to interpretation, but it does not imply power to

substitute individual notions of legislative intention. It

implies   only   a   power   of   choice   where   differing

constructions are possible and different meanings are

available.  As is manifest, the individual notions should

not come in the way of legislative intention.

55.  In   this   regard,   reference   to  Gem   Granites   v.

Commissioner of Income Tax, T.N.41 would be fruitful.

In the said case, the Court observed that an argument

founded on what is claimed to be the intention of

40 (1988) 3 SCC 609 41 (2005) 1 SCC 289

56

Parliament may have appeal but a court of law has to

gather the object of the statute from the language used,

but what one may believe or think to be the intention of

Parliament cannot prevail if the language of the statute

does not support that view.  In Padma Sundara Rao

(Dead) and others v. State of T.N. and others42, the

Constitution   Bench   referred   to   two   principles   of

construction – one relating to casus omissus and other in

regard to reading the statute as a whole.  I am referring

to the authority to appreciate the principle of “casus

omissus”. In that context, the Court has ruled that:

“14. … a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and   every   clause   of   a   section   should   be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. …”   56.  In Hindustan Lever Ltd. v. Ashok Vishnu Kate

and   others43,   the   question   arose   for   entertaining

42 AIR 2002 SC 1334 43 (1995) 6 SCC 326

57

complaint filed under Section 28(1) of the Maharashtra

Recognition of Trade Union and Prevention of Unfair

Labour Practices Act, 1971. In the said case, the Labour

Court in which the complaints were filed took the view

that such complaints were not maintainable as the

actual orders of discharge or dismissal were not yet

passed by the employer.   The learned single Judge

confirmed that view, but the appellate Bench of the High

Court dislodged the same.   Dealing with the appeal

preferred by the employer, while interpreting the said

Act, the Court took note of the background of the Act,

examined the scheme of the enactment and referred to

the preamble in extenso and various other provisions

and interpreting the words which were used in the

provisions opined that the scheme of the legislation

intends to prevent commission of unfair labour practices

through the  intervention  of  the Court  and for  that

purpose, the said Act has been enacted. The two­Judge

Bench referred to the decision in Workmen of American

Express   International   Banking   Corporation   v.

58

Management   of   American   Express   International

Banking Corporation44  wherein Chinnappa Reddy, J.

had made the following observations:

“The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights’ legislation are not to be put in Procrustean beds or shrunk to Lilliputian dimensions. In construing these legislations the imposture of literal construction must be avoided   and   the   prodigality   of   its misapplication   must   be   recognised   and reduced. Judges ought to be more concerned with the ‘colour’, the ‘content’ and the ‘context’ of such statutes (we have borrowed the words from Lord Wilberforce’s opinion in  Prenn  v. Simmonds45).   In   the   same   opinion   Lord Wilberforce pointed out that law is not to be left   behind   in   some   island   of   literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted   purely   on   internal   linguistic considerations.”   57. In Githa Hariharan (supra) the Court was dealing

with the Constitutional validity of Section 6(a) of Hindu

Minority and Guardianship Act, 1956 and Section 19(b)

of the Guardian and Wards Act, 1890. A contention was

raised that the said provision violated Articles 14 and 15

44 (1985) 4 SCC 71 45 (1971) 3 All ER 237 : (1971) 1 WLR 1381

59

of the Constitution.  Section 6(a) of the HMG Act reads as

follows:

“6. Natural guardians of a Hindu minor.—The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are—

a) in the case of a boy or an unmarried girl — the father, and after him, the mother: Provided that   the   custody   of   a   minor   who   has   not completed the age of five years shall ordinarily be with the mother;”

Be it noted, in the said case, the Reserve Bank of

India had questioned the authority of the mother, even

when she had acted with the concurrence of the father,

because in its opinion she could function as guardian

only after the lifetime of the father and not during his

lifetime.  The question arose, what meaning should be

placed ‘after the lifetime’? The Court observed that if this

question is answered in affirmative, the section has to be

struck   down   as   unconstitutional   as   the   same   is

undoubtedly violates of gender equality, one of the basic

principles of our Constitution.   Interpreting the said

provision, the Court came to hold that:

60

“16. While both the parents are duty­bound to take care of the person and property of their minor child and act in the best interest of his welfare, we hold that in all situations where the father is not in actual charge of the affairs of the minor   either   because   of   his   indifference   or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as natural guardian of the minor and all her   actions   would   be   valid   even   during   the lifetime of the father, who would be deemed to be “absent” for the purposes of Section 6(a) of the HMG Act and Section 19(b) of the GW Act.”

Be it noted, the said interpretation was placed to

keep the statutes within the constitutional limits.

58.  Recently,   in  Ajitsinh   Arjunsinh   Gohil  v.   Bar

Council of Gujarat and another46, the Court, while

interpreting Section 36­B of the Advocates Act, 1961,

quoted   the   following   observations   of   Sabyasachi

Mukharji, J. (as his Lordship then was) in Atma Ram

Mittal v. Ishwar Singh Punia47:

“9. … Blackstone tells us that the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most

46 (2017) 5 SCC 465 47 (1988) 4 SCC 284

61

natural and probable. And these signs are either the words, the context, the subject­matter, the effects and consequence, or the spirit and reason of the law. See  Commentaries on the Laws of England (facsimile of 1st Edn. of 1765, University of Chicago Press, 1979, Vol. 1, p. 59). Mukherjea, J. as the learned Chief Justice then was, in Poppatlal Shah v. State of Madras48 said that each word, phrase or sentence was to be construed in the light of purpose of the Act itself. But words must be construed with imagination of purpose behind them, said Judge Learned Hand, a long time ago. It appears, therefore, that though we are concerned with seeking of intention, we are rather looking to the meaning of the words that the legislature has used and the true meaning of those words as was said by Lord Reid in BlackClawson   International   Ltd.  v.  Papierwerke Waldhof­Aschaffenburg A.G.49   We are clearly of the opinion that having regard to the language we must find the reason and the spirit of the law.” (Emphasis in original)

 

59. Thereafter, the Court referred to S. Gopal Reddy v.

State   of   A.P.50  and  High   Court   of   Gujarat   and

another v. Gujarat Kishan Mazdoor Panchayat and

others51 and opined:

“28.   The   aforesaid   authorities   give   stress   on textual interpretation that would match context and   further   to   explore   the   intention   of   the legislature.   The   authorities   further   emphasise that the words have to be understood regard

48 AIR 1953 SC 274 49 1975 AC 591 : (1975) 2 WLR 513 (HL) 50 (1996) 4 SCC 596 51 (2003) 4 SCC 712

62

being had to the purpose behind it and hence, the concern with the intention is basically to decipher   the   meaning   of   the   word   that   the legislature has placed on it. …”

60. In  Raghunandan Saran Ashok Saran v. Pearey

Lal Workshop52, it has been held that if the words of

statute are clear, there is no question of interpretation

and in that context, grammatical construction is required

to be accepted as the golden rule.  In Commissioner of

Income Tax, Bangalore v. J.H. Gotla53, it has been

held:

“46. Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the   Legislature,   the   Court   might   modify   the language used by the Legislature so as to achieve the intention of the Legislature and produce a rational construction. The task of interpretation of a statutory provision is an attempt to discover the intention of the Legislature from the language used. …”

 

61. In  Polestar Electronic (Pvt.) Ltd. v. Additional

Commissioner, Sales Tax and another54, it has been

held:

52 (1986) 3 SCC 38 53 (1985) 4 SCC 343 54 (1978) 1 SCC 636

63

“11. … If the language of a statute is clear and explicit, effect must be given to it, for in such a case the words best declare the intention of the law­giver. It would not be right to refuse to place on the language of the statute the plain and natural meaning which it must bear on the ground that it produces a consequence which could not have been intended by the legislature. It is only from the language of the statute that the intention of the Legislature must be gathered, for the legislature means no more and no less than what it says. It is not permissible to the Court to speculate as to what the Legislature must have intended and then to twist or bend the language of the statute to make it accord with the presumed intention of the legislature. …”

62. I   have   referred   to   the   aforesaid   authorities   to

highlight that legislative intention and the purpose of the

legislation regard being had to the fact that context has

to be appositely appreciated. It is the foremost duty of

the Court while construing a provision to ascertain the

intention of the legislature, for it is an accepted principle

that the legislature expresses itself with use of correct

words and in the absence of any ambiguity or the

resultant consequence does not lead to any absurdity,

there is no room to look for any other aid in the name of

creativity. There is no quarrel over the proposition that

the method of purposive construction has been adopted

64

keeping   in   view   the   text   and   the   context   of   the

legislation, the mischief it intends to obliterate and the

fundamental intention of the legislature when it comes to

social welfare legislations.   If the purpose is defeated,

absurd result is arrived at. The Court need not be

miserly and should have the broad attitude to take

recourse to in supplying a word wherever necessary.

Authorities referred to hereinabove encompass various

legislations wherein the legislature intended to cover

various fields and address the issues. While interpreting

a social welfare or beneficent legislation one has to be

guided by the ‘colour’, ‘content’ and the ‘context of

statutes’ and if it involves human rights, the conceptions

of   Procrustean   justice   and   Lilliputtian   hollowness

approach   should   be   abandoned.   The   Judge   has   to

release   himself   from   the   chains   of   strict   linguistic

interpretation and pave the path that serves the soul of

the legislative intention and in that event, he becomes a

real creative constructionist Judge. I have perceived the

approach in Hindustan Lever Ltd. (supra) and Deepak

Mahajan  (supra),  Pratap Singh  (supra)   and   many

65

others.   I have also analysed where the Court has

declined   to   follow   the   said   approach   as   in  R.M.D.

Chamarbaugwalla  (supra) and other decisions.   The

Court   has   evolved   the   principle   that   the   legislative

intention must be gatherable from the text, content and

context of the statute and the purposive approach should

help   and   enhance   the   functional   principle   of   the

enactment. That apart, if an interpretation is likely to

cause inconvenience, it should be avoided, and further

personal notion or belief of the Judge as regards the

intention of the makers of the statute should not be

thought   of.   And,   needless   to   say,   for   adopting   the

purposive approach there must exist the necessity. The

Judge, assuming the role of creatively constructionist

personality, should not wear any hat of any colour to suit

his thought and idea and drive his thinking process to

wrestle with words stretching beyond a permissible or

acceptable limit.   That has the potentiality to cause

violence to the language used by the legislature. Quite

apart from, the Court can take aid of causus omissus,

66

only in a case of clear necessity and further it should be

discerned from the four corner of the statute. If the

meaning is intelligible, the said principle has no entry. It

cannot be a ready tool in the hands of a Judge to

introduce as and what he desires.

63. Keeping in view the aforesaid parameters, I am

required   to   scrutinize   whether   the   content   and   the

context of the POCSO Act would allow space for the

interpretation that has been canvassed by the learned

counsel for the appellant, which has also got support

from the State, before us. The POCSO Act, as I have

indicated earlier, comprehensively deals with various

facets that are likely to offend the physical identity and

mental condition of a child.  The legislature has dealt

with sexual assault, sexual harassment and abuse with

due regard to safeguard the interest and well being of the

children at every stage of judicial proceeding  in an

extremely detailed manner.   The  procedure is child

friendly and the atmosphere as commanded by the

provisions of the POSCO Act has to be congenial.  The

protection of the dignity of the child is the spine of the

67

legislation.   It   also   lays   stress   on   mental   physical

disadvantage of a child.   It takes note of the mental

disability. The legislature in its wisdom has stipulated a

definition of the “child” which I have noted hereinbefore.

The submission is that the term “age” should not be

perceived through the restricted prism but must be

viewed with the telescope and thereby should include the

mental age.

64. Learned   counsel   for   the   appellant   has   drawn

support from  Daniel Johannes Stephanus Van Der

Bank v. The State55 wherein the High Court of South

Africa was dealing with an appeal against the conviction

and, in appeal there issues arose, two of which are – (1)

the appointment of an intermediary in accordance with

the provisions of Section 170A of the Criminal Procedure

Act 51 of 1977 and (2) that the court a  quo  erred in

accepting the evidence of the complainant who, to all

intents and purpose, was a single witness. In the said

case, the High Court of South Africa was dealing with

mental age of a victim.  At the time of her testimony, she

55 [2014]  ZAGPPHC 1017

68

was 19 years old and the State led evidence of a clinical

psychologist who had consulted and conducted tests on

her on several occasions. The evidence was led with

regard to her lack of understanding and various other

aspects. The High Court posed the question with regard

to object of Section 170A (1) of the said Act. Though the

amendment of Section 170A (1) which included the

mental age had not come into existence, yet the court

accepted the stand of the prosecution that the victim

though 19 years of age, could give the assistance of an

intermediary. The aforesaid judgment of the High Court

of South Africa shows that mental age can be considered

by the Court though the relevant amendment in relation

to a crime that had occurred before the amendment

came into force.

65. The   matter   travelled   to   the   Supreme   Court   of

Appeal of South Africa in Daniel Johannes Stephanus

Van Der Bank v. The State56 which took note of the fact

that   intermediary   was   appointed   and   how   he   had

56 [2016] ZASCA 10

69

assisted the complainant in testifying.  Leave granted by

the Supreme Court was limited to the following:

“Leave to appeal is limited to the issue whether the complainant’s evidence was inadmissible on the   basis   that   it   was   given   through   an intermediary in conflict with the provisions of s 170A of the Criminal Procedure Act as applicable at the time she gave evidence.”

The Supreme Court referred to Section 170A. On

the date the complainant testified, the said Section read

as follows:

“Section 170A. Evidence through intermediaries. — (1) Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness under the age of eighteen   years   to   undue   mental   stress   or suffering   if   he   or   she   testifies   at   such proceedings,   the   court   may,   subject   to subsection (4), appoint a competent person as an intermediary in order to enable such witness to give   his   or   her   evidence   through   that intermediary.”

It was contended before the Court that once the

witness reached the age of 18 years, there was no power

or discretion to invoke Section 170A. The Apex Court

took note of the subsequent amendment made in 2007

by Section 68 of Act 32 of 2007 to include not only

witnesses who were biologically under the age of eighteen

70

but also those who were mentally under the age of

eighteen.   The   Court   referred   to   the   decision   in

S v Dayimani57 and dealt with the same by stating thus:

“In Dayimani, the complainant was regarded as ‘moderately mentally retarded’ and s 170A was nonetheless invoked (wrongly so that court held) because the complainant was eighteen years old at the time of testifying. It is not necessary to consider whether  Dayimani  has been correctly decided. The proper approach, in my view, would be to consider the evidence other than that adduced by the complainant and assess it to establish   whether   the   convictions   should   be sustained or set aside.”

Thereafter the Court held thus:

“By definition, common law rape is the unlawful and intentional sexual intercourse by a person without the consent of the other. Consent has to be free, voluntary and consciously given in order to be valid. In our law, valid consent requires that the consent itself must be recognised by law; the consent must be real; and the consent must be given by someone capable of consenting.2 The first   two   requirements   do   not   need   to   be discussed   since   the   issue   is   whether   the complainant was capable of giving consent related to the third requirement. Where a person in intellectually challenged, his or her  condition must  be  expertly  assessed and only then can a finding as to such capability be made. …”

57 2006 (2) SACR 594 (E)

71

In the ultimate analysis, the Supreme Court of

Appeal of South Africa confirmed the view of the High

Court by holding that the trial court was correct in

rejecting the appellant’s contention that the complainant

had consented to engage in these activities and it was

known that she was backward with a mental age of far

less than 16 years ­ her biological age in 1999. Moreover,

there was overwhelming evidence on record that she was

incapable of giving required consent.

66. In Director of Public Prosecutions, Transvaal v.

Minister of Justice and Constitutional Development

and others58  the Constitutional Court of South Africa

while considering the challenge to the South African

Criminal Law (Sexual  Offences and Related Matters)

Amendment Act observed:

“74. Courts are now obliged to give consideration to the effect that their decisions will have on the rights and interests of the child. The legal and judicial   process   must   always   be   child sensitive. As we held in S v M, statutes “must be interpreted . . . in a manner which favours protecting   and   advancing   the   interests   of children; and that courts must function in a manner which at all times shows due respect for

58 (2009) ZACC 8 ; (2009) 4 SA 222 (CC) ; (2009) 2 SACR 130 (CC); (2009) 7 BCLR 637 (CC)

72

children’s rights.” Courts are bound to give effect to the provisions of section 28(2) in matters that come before them and which involve children. …”

67. The   learned   counsel   for   the   appellant   has

emphasized on the same to bolster the proposition that

the   POCSO   Act  being   child   friendly   and   meant   for

protecting the dignity of the child regard being had to her

physical   and   mental   or   body   and   mind   integrity

interpretation of the term “age” should include mental

age so that statute becomes purposively child sensitive.

68. In Her Majesty The Queen v. D.A.I.59, before the

Supreme Court of Canada the question arose whether

the   trial   Judge   had   incorrectly   interpreted   the

requirements of Section 16 of the Canada Evidence Act

for the testimonial competence of persons of 14 years of

age or older (adults) with mental disabilities. Section

16(3) of the said Act imposes two requirements for the

testimonial   competence   of   an   adult   with   mental

disabilities: (1) the ability to communicate the evidence;

and (2) a promise to tell the truth. In the said case, the

59 [2012] 1 RCS 149

73

victim was an adult aged about 26 years and her mental

age was assessed at 6 years old. She was sexually

assaulted.  The trial court acquitted the accused which

was confirmed by the Court of Appeal.   The Supreme

Court of Canada by majority judgment unsettled the

conclusion of the trial court and the Court of Appeal after

dealing with provisions pertaining to Section 16 of the

Canada Evidence Act as introduced in 1987.  The trial

Judge excluded her evidence and acquitted the accused

which was confirmed by the Court of Appeal, as stated

earlier.  The majority while disagreeing speaking through

the learned Chief Justice adverted to the principle of

competence to testify, concept of admissibility and the

responsibility of the trial Judge under the said Act to

decide what evidence, if any, to be accepted. Thereafter

reference was made to competence of adult witness with

mental   disability   and   Section   16   which   governs

competence of adult witnesses with mental disabilities

was analysed.  A contention was raised that Section 16(3)

should be supplemented by the requirement that an

adult witness with mental disability who cannot take an

74

oath or affirm must not only be able to communicate the

evidence and promise to tell the truth, but must also

understand the nature of a promise to tell the truth.  The

majority disagreeing with the said submission analysed

the historical background, legislative content and the

intention of the Parliament and ultimately held thus:

“34. The foregoing reasons make a strong case that s. 16(3)      should be read as requiring only two requirements for competence of an adult with   mental   disabilities:   (1)   ability   to communicate the evidence; and (2) a promise to tell the truth. …”

It is apt to note here that two other arguments were

raised in support of this interpretation – first, without a

further requirement of an understanding of the obligation

to tell the truth, a promise to tell the truth is an “empty

gesture”; second, Parliament’s failure in 2005 to extend

to adults with mental disabilities the Section 16.1(7)

prohibition on the questioning  of  children  means  that

it intended  this  questioning  to  continue  for  adults.

The Court, dealing with the first aspect, held that the

shortcoming in the said submission was that it departed

from the plain words of Section 16(3), on the basis of an

75

assumption that it was unsupported by any evidence and

contrary to Parliament’s intent.  Imposing an additional

qualitative condition for competence that is not provided

in the text of Section  16(3)     would demand compelling

demonstration that a promise to tell the truth cannot

amount to a meaningful procedure for adults with mental

disabilities. That apart, when such a witness promises to

tell the truth, it reinforces the seriousness of the occasion

and the need to do so.  In dealing with the evidence of

children in Section 16.1, Parliament held that a promise

to tell the truth was all that is required of a child capable

of responding to questions.  Parliament did not think a

child’s promise, without more, is an empty gesture.

69. The second argument,  raised in support of the

proposition   that   “promising   to   tell   the   truth”   in

Section  16(3)      implies a requirement that the witness

must show that she understands the nature of the

obligation to tell the truth is that Parliament has not

enacted   a   ban   on   questioning   adult   witnesses   with

mental disabilities on the nature of the obligation to tell

the truth, as it did for child witnesses in 2005 in Section

76

16.1(7).   To understand this said argument, the Court

briefly traced the history of Section 16.1., and noted the

submission:

“[52]  The final and most compelling answer to the equivalency argument is simply this: When it comes to testimonial competence, precisely what, one may ask, is the difference between an adult with the mental capacity of a six­year­old, and a six­year­old with the mental capacity of a sixyear­old?  Parliament, by applying essentially the same   test   to   both   under s.   16(3)      and s. 16.1(3)      and (6)      of   the Canada   Evidence   Act     , implicitly finds no difference.  In my view, judges should not import one.

[53]   I   conclude   that s.   16(3)      of   the Canada Evidence Act     , properly interpreted, establishes two   requirements   for   an   adult   with   mental disabilities   to   take   the   stand:   the   ability   to communicate the evidence and a promise to tell the truth.  A further requirement that the witness demonstrate that she understands the nature of the obligation to tell the truth should not be read into the provision.

x x x x

[63]     I conclude that, insofar as the authorities suggest that “promising to tell the truth” in s. 16(3)      should be read as requiring an abstract inquiry into an understanding of the obligation to tell the truth, they should be rejected.  All that is required   is   that   the   witness   be   able   to communicate the evidence and promise to tell the truth.”

77

Eventually, the majority ruled that the threshold of

reliability for hearsay evidence differs from the threshold

ability to communicate the evidence for competence; a

ruling on testimonial capacity cannot be subsequently

justified   by   comments   in   a   ruling   on   hearsay

admissibility.  Had the competence hearing been properly

conducted, this might have changed the balance of the

trial,   including   the   hearing   (if   any)   on   hearsay

admissibility.   Ultimately, the Court allowed the appeal

and set aside the acquittal and directed for new trial.

70. I have already dealt with in extenso the decisions as

cited by the learned counsel for the appellant.  The South

African view, as I find, by adopting the interpretative

process justifies the appointment of an intermediary in

respect of an adult woman who is mentally retarded.  It is

a different situation altogether. The rule of evidence

which was not there but amended later on by the

Parliament, the Supreme Court of South Africa looking

into various aspects of the statute applied the principle of

inherent inclusiveness in the words and interpreted the

provision. The Constitutional Court of South Africa has

78

spoken about the requirement of sensitivity to a child.

Both the aspects, according to me, are distinguishable.

As far as the majority view of the Supreme Court of

Canada is concerned, it interpreted Section 16(3) of the

Canada   Evidence   Act   and   appreciated   the   various

aspects of the evidence tendered by an adult who is

mentally challenged and has declined to add something

which the Parliament has not envisaged. It has only

elaborated the process of adequate, proper and sensitive

appreciation keeping in view the words used in the

statute.

71. In   this   context,   a   passage   from  Tulshidas

Kanolkar (supra) will be appropriate to refer.  In the said

case, the victim of rape was an adult who was a mentally

challenged person and her IQ was not even 1/3rd of what

a normal person has. She had become pregnant, and on

being asked by her parents, as to who was responsible

for her pregnancy, she on her own way pointed out finger

at the appellant therein. During the trial, the accused

indirectly took the stand of consent apart from other

79

pleas.  The trial court repelled the plea of consent and

found the appellant guilty. In appeal, the High Court

negatived the contention raised by the accused­appellant

by upholding the conviction but reduced the sentence to

seven years. Before this Court, it was contended that in

the absence of any other person being examined, the

testimony of the prosecutrix could not be placed reliance

upon.   The   Court   analysed   the   evidence   and   placed

reliance on the version of the victim and rejected the plea

of consent stating it as absolutely shallow.  The Court

held that a mentally challenged person cannot give legal

consent which would involve understanding of the effect

of such consent and it has to be a conscious and

voluntary act. A distinction was drawn between “consent”

and “submission” and ruled that every consent involves a

submission but the converse does not follow and an act

of helpless resignation could not be treated as a consent.

Proceeding   further,   the   Court   said   for   constituting

consent there must be exercise of intelligence based on

the knowledge of the significance and the moral effect of

80

the Act.  While parting with the case, the Court added

one aspect which requires to be noted:

“8. … a few words are necessary to be said about prescription   of   sentence   in   a   case   where   a mentally challenged or deficient woman is the victim. In sub­section (2) of Section 376, clause (f) relates to physical age of a woman under 12 years of age. In such a case sentence higher than that prescribed for one under sub­section (1) is provided for. But what happens in a case when the mental age of the victim is not even 12 years? Such a woman is definitely in a more vulnerable situation. A rapist in such a case in addition to physical ravishment exploits her mental nondevelopment and helplessness. The legislature would do well in prescribing higher minimum sentence in a case of this nature. The gravity of offence in such case is more serious than the enumerated categories indicated in sub­section (2) of Section 376.”

As it seems, the Court left it to the legislature for

prescribing   a   higher   minimum   sentence.   The   said

passage, as I perceive, does not help the proposition

canvassed in the instant case.

72.  The learned counsel for the appellant has drawn my

attention to various Sections of IPC, namely, Sections 89,

90, 98, 228A, 305, 361 and 491.  Section 89 IPC deals

with an act done in good faith for benefit of child or

insane person by or by consent of guardian. It stipulates

81

that nothing would be done in good faith for the benefit

of a person under twelve years of age or of unsound mind

by   or   by   consent   either   express   or   implied   of   the

guardian or other person having lawful charge of that

person would be an offence by reason of any harm which

it may cause or be intended by the doer to cause or be

known by the doer to be likely to cause to that person.

Section 90 deals with consent known to be given under

fear or misconception. It also encapsulates of insane

person and consent of child which is a person who is

under twelve years of age. Section 98 covers right of

private defence against the act of a person of unsound

mind and when an act which would otherwise be an

offence is not offence by reason of want of maturity of

understanding, the unsoundness of mind.  Section 305

deals with abetment of suicide of child or insane person

and provides punishment with death or imprisonment for

life, or imprisonment for a term not exceeding ten years.

Section 361 deals with kidnapping of minor under the

age of 16 years of age from lawful guardianship.  The

learned counsel for the appellant relying upon the said

82

provisions would contend that IPC prescribes protection

on the basis of maturity of understanding to a child, and

the   same   protection   has   been   extended   to   persons

suffering from unsoundness of mind and, therefore, it is

limpid that a penal law sometimes makes departure from

the chronological  age by placing more emphasis on

capacity to understand the nature and consequences of

an act.  On that basis, an argument has been structured

to treat the mental age of an adult within the ambit and

sweep of the term “age” that pertains to age under the

POCSO Act.  In this regard, I am obligated to say what

has been provided in the IPC is on a different base and

foundation.   Such   a   provision   does   treat   the   child

differently and carves out the nature of offence in respect

of an insane person or person of unsound mind. There is

a prescription by the statute.   Learned counsel would

impress upon us that I can adopt the said prescription

and apply it to dictionary clause of POCSO Act so that

mental age is considered within the definition of the term

“age”.  I am not inclined to accept the said submission.

83

73. In   this   regard,   it   is   worthy   to   note   that   the

legislature despite having the intent in its Statement of

Objects and Reasons and the long Preamble to the

POCSO Act, has thought it wise to define the term “age”

which does not only mention a child  but adds the words

“below the age of 18 years”. Had the word “child” alone

been mentioned in the Act, the scope of interpretation by

the Courts could have been in a different realm and the

Court might have deliberated on a larger canvass. It is

not so.

74.  There is distinction between mental retardation and

mentally ill person.   In this regard, it would be fruitful to

analyse the concept.  In Suchita Srivastava (supra), the

assail was to the orders passed by the Division Bench of

the High Court which had ruled that it was in the best

interests of a mentally retarded women to undergo  an

abortion.   The   said   woman   was   an   inmate   at   a

government­run welfare institution and after discovery of

her pregnancy, the administration of the Union Territory

84

of Chandigarh had approached the High Court for the

termination of her pregnancy keeping in mind that in

addition to being mentally retarded she was also an

orphan who did not have any parent or guardian to look

after her or her prospective child.   The High Court had

appointed an expert body who had given a finding that

the victim had expressed her willingness to bear a child.

As the High Court, as already stated earlier, directed the

woman to undergo abortion, Special Leave to Appeal was

preferred   before   this   Court.   The   three­Judge   Bench

referred to The Metical Termination of Pregnancy Act,

1971 (for short, ‘the 1971 Act’) which clearly indicates

that consent is an essential condition for performing an

abortion on a woman who has attained the age of

majority and does not suffer from any “mental illness”.

The   Court   observed   that   there   is   clear   distinction

between “mental illness” and “mental retardation” for the

purpose of the 1971 Act. The next issue the Court

addressed is the exercise of “parens patriae” jurisdiction.

The Court opined that the victim’s reproductive choice

has to be respected in spite of other factors such as lack

85

of   understanding   of   the   sexual   act   as   well   as

apprehensions about her capacity to carry the pregnancy

with   full   term   and   the   assumption   of   maternal

responsibilities therefor. The Court adopted the said view

as   the   applicable   statute   contemplates   that   even   a

woman who is found to be mentally retarded should give

her consent for termination of her pregnancy.  Analysing

Section 3 of the 1971 Act, the Court ruled that the

legislative intention was to provide a qualified right to

abortion and the termination of pregnancy has never

been recognized as a normal recourse for expecting

mothers.  In the said context, the Court held:

“22. There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise   that   reproductive   choices   can   be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s   right  to  privacy,   dignity  and   bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise   of   reproductive   choices   such   as   a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing   sterilisation   procedures.   Taken   to

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their   logical   conclusion,   reproductive   rights include   a   woman’s   entitlement   to   carry   a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a “compelling State   interest”   in   protecting   the   life   of   the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971   can   also   be   viewed   as   reasonable restrictions that have been placed on the exercise of reproductive choices.”

And again:

“25. In all such circumstances, the consent of the pregnant woman is an essential requirement for proceeding with the termination of pregnancy. This position has been unambiguously stated in Section 3(4)(b) of the MTP Act, 1971.”

Dealing with the exceptions to the rule, the Court

referred to Section 3(4)(a) of the 1971 Act which reads

thus:

“(4)(a) No pregnancy of a woman, who has not attained  the  age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.”     The Court took note of the fact that the 1971 Act

was amended in 2002 by way of which the word “lunatic”

was replaced by the expression “mentally ill person” in

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Section 3(4)(a) of the 1971 Act. “Mentally ill person” has

been defined under Section 2(b) of the 1971 Act which

means a person who is in need of treatment by reason of

any mental disorder other than mental retardation.

75.  Dealing with the definition, the Court referred to the

Persons with Disabilities (Equal Opportunities, Protection

of Rights and Full Participation) Act, 1995 (for short,

‘1995 Act’) and opined that in the said Act also “mental

illness” has been defined as mental disorder other than

mental retardation. The Court also took note of the

definition of “mental retardation” under the 1995 Act.

The definition read as follows:

“2(r) ‘mental retardation’ means a condition of arrested or incomplete development of mind of a person   which   is   specially   characterised   by subnormality of intelligence.”

76. The Court also took note of the fact that the same

definition   of   “mental   retardation”   has   also   been

incorporated under Section 2(g) of the National Trust for

Welfare of Persons with Autism, Cerebral Palsy, Mental

Retardation and Multiple Disabilities Act, 1999.   In that

context, the Court further expressed the view that the

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legislative provisions in the various Acts clearly show

that   persons   who   are   in   a   condition   of   “mental

retardation” should ordinarily be treated differently from

those who are found to be “mentally ill”.   While a

guardian can make decisions on behalf of a “mentally ill

person” as per Section 3(4)(a) of the 1971 Act, the same

cannot be done on behalf of a person who is in a

condition of “mental retardation”.  After so stating, the

Court opined that there cannot be a dilution of the

requirement of consent since the same would amount to

an   arbitrary   and   unreasonable   restriction   on   the

reproductive rights of the victim. The Court analysed the

reasoning enumerated by the High Court and reversing

the view of the High Court held:

“32. Besides placing substantial reliance on the preliminary medical opinions presented before it, the   High   Court   has   noted   some   statutory provisions in the Persons with Disabilities (Equal Opportunities,   Protection   of   Rights   and   Full Participation) Act, 1995 as well as the National Trust   for   Welfare   of   Persons   with   Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities   Act,   1999   where   the   distinction between   “mental   illness”   and   “mental retardation” has been collapsed. The same has been   done   for   the   purpose   of   providing affirmative   action   in   public   employment   and

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education   as   well   as   for   the   purpose   of implementing anti­discrimination measures. The High Court has also taken note of the provisions in   IPC   which   lay   down   strong   criminal   law remedies that can be sought in cases involving the sexual assault of “mentally ill” and “mentally retarded” persons. The High Court points to the blurring of these distinctions and uses this to support its conclusion that “mentally ill” persons and those suffering from “mental retardation” ought to be treated similarly under the MTP Act, 1971. We do not agree with this proposition.

33. We must emphasise that while the distinction between   these   statutory   categories   can   be collapsed for the purpose of empowering the respective   classes   of   persons,   the   same distinction   cannot   be   disregarded   so   as   to interfere with the personal autonomy that has been accorded to mentally retarded persons for exercising their reproductive rights.”  In the said case, the Court referred to the United Nations

Declaration on the Rights of Mentally Retarded Persons,

1971 and reproduced the principles contained therein.  I

think it appropriate to reproduce the same:

“1. The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings. 2. The mentally retarded person has a right to proper medical care and physical therapy and to such   education,   training,   rehabilitation   and guidance as will enable him to develop his ability and maximum potential. 3. The mentally retarded person has a right to economic security and to a decent standard of living. He has a right to perform productive work

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or to engage in any other meaningful occupation to the fullest possible extent of his capabilities. 4.   Whenever   possible,   the   mentally   retarded person should live with his own family or with foster parents and participate in different forms of community life. The family with which he lives should   receive   assistance.   If   care   in   an institution   becomes   necessary,   it   should   be provided   in   surroundings   and   other circumstances as close as possible to those of normal life. 5. The mentally retarded person has a right to a qualified   guardian   when   this   is   required   to protect his personal well­being and interests. 6. The mentally retarded person has a right to protection   from   exploitation,   abuse   and degrading   treatment.   If   prosecuted   for   any offence, he shall have a right to due process of law with full recognition being given to his degree of mental responsibility. 7.   Whenever   mentally   retarded   persons   are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for   that   restriction   or   denial   of   rights   must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation  of  the   social  capability  of  the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to higher authorities.”

77. The two­Judge Bench laid emphasis on principle

No. 7, as reproduced above, for it prescribes that a fair

procedure should be used for the “restriction or denial” of

the rights guaranteed to mentally retarded persons which

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should ordinarily be the same as those given to other

human beings. It is significant to note that in the said

decision, the Court referred to  ‘eugenics theory’ which

was used in the past to perform forcible sterilizations and

abortions on mentally retarded persons.  Commenting on

the same, it was observed that such measures are anti

democratic   and   violative   of   the   guarantee   of   “equal

protection before the law” as laid down in Article 14 of

our Constitution.  The Court referred to a condition of

“mental retardation” and in that context, observed:

“55. It is also pertinent to note that a condition of “mental retardation” or developmental delay is gauged  on  the   basis  of   parameters   such  as intelligence quotient (IQ) and mental age (MA) which mostly relate to academic abilities. It is quite possible that a person with a low IQ or MA may possess the social and emotional capacities that will enable him or her to be a good parent. Hence, it is important to evaluate each case in a thorough manner with due weightage being given to   medical   opinion   for   deciding   whether   a mentally   retarded   person   is   capable   of performing parental responsibilities.”   78. I have copiously referred to the said authority as it

has analysed the distinction between “mental illness” and

“mental retardation”.  It has also noted that a condition

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of mental retardation or developmental delay is gauged

on the basis of parameters such as intelligence quotient

(IQ) and mental age (MA) which mostly relate to academic

abilities.  The Court has narrated about the possibility of

late IQ or MA may possess the social and emotional

capacities that will enable him or her to be a good parent.

Persons   with   borderline,   mild   or   moderate   mental

retardation   are   capable   of   living   in   normal   social

conditions even though they may need some supervision

and assistance from time to time. It observed:

“40. We must also be mindful of the varying degrees   of   mental   retardation,   namely,   those described as borderline, mild, moderate, severe and profound instances of the same. Persons suffering   from   severe   and   profound   mental retardation usually require intensive care and supervision and a perusal of academic materials suggests that there is a strong preference for placing   such   persons   in   an   institutionalised environment. However, persons with borderline, mild or moderate mental retardation are capable of living in normal social conditions even though they may need some supervision and assistance from time to time.

41. A developmental delay in mental intelligence should not be equated with mental incapacity and as far as possible the law should respect the decisions made by persons who are found to be in   a   state   of   mild   to   moderate   “mental retardation”.”

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79.   Be   it   noted,   similar   distinction   has   been

maintained in The Rights of Persons with Disabilities Act,

2016. The purpose of referring to the said judgment is

that this Court has kept itself alive to the fact that the

Parliament has always kept the mental retarded person

and mentally ill person in two different compartments.

80. Mr. Hegde,   learned senior counsel appearing for

respondent No. 2, would contend that degree of mental

retardation   or   the   IQ   test   may   not   always   be   a

determinative factor and, therefore, the principle of casus

omissus would not be applicable to the case at hand.

81. I have already referred to the judgment of the

Constitution Bench in Padma Sundara Rao (supra). In

the said case, the Court mentioned the situations where

the principle of casus omissus would be applied. Applying

the said principle, it can be stated without any fear of

contradiction that the said principle cannot be applied to

the provision that has arisen for consideration.

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82. The situation can be viewed from another aspect.

The POCSO Act has identified minors and protected them

by prescribing the statutory age which has nexus with

the legal eligibility to give consent. The Parliament has

felt it appropriate that the definition of the term “age” by

chronological   age  or  biological   age  to  be  the   safest

yardstick   than   referring   to   a   person   having   mental

retardation. It may be due to the fact that the standards

of mental retardation are different and they require to be

determined   by   an   expert   body.   The   degree   is   also

different. The Parliament, as it seems, has not included

mental age. It is within the domain of legislative wisdom.

Be it noted, a procedure for determination of age had

been provided under Rule 12 of the Juvenile Justice

(Care   and   Protection   of   Children)   Rules,   2000.   The

procedure was meant for determination of the biological

age. It may be stated here that Section 2(12) of the

Juvenile Justice (Care and Protection of Children) Act,

2015 (2 of 2016) defines “child” to mean a person who

not completed eighteen years of age. There is a procedure

provided for determination of the biological age. The

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purpose   of   stating   so   is   that   the   Parliament   has

deliberately fixed the age of the child and it is in the

prism of biological age. If any determination is required,

it only pertains to the biological age, and nothing else.

83.  The purpose of POCSO Act is to treat the minors as

a class by itself and treat them separately so that no

offence is committed against them as regards sexual

assault,   sexual   harassment   and   sexual   abuse.   The

sanguine purpose is to safeguard the interest and well

being of the children at every stage of judicial proceeding.

It provides for a child friendly procedure. It categorically

makes a distinction between a child and an adult. On a

reading of the POCSO Act, it is clear to us that it is

gender neutral. In such a situation,  to include the

perception of mental competence of a victim or mental

retardation as a factor will really tantamount to causing

violence to the legislation by incorporating a certain

words to the definition. By saying “age” would cover

“mental   age”   has   the   potential   to   create   immense

anomalous situations without there being any guidelines

or statutory provisions. Needless to say, they are within

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the sphere of legislature.  To elaborate, an addition of the

word   “mental”   by   taking   recourse   to   interpretative

process   does   not   come   within   the   purposive

interpretation as far as the POCSO Act is concerned.  I

have already stated that individual notion or personal

conviction should not be allowed entry to the sphere of

interpretation. It has to be gathered from the legislative

intention   and   I   have   already   enumerated   how   the

legislative intention is to be gathered. Respect for the

dignity of a person, as submitted, has its own pedestal

but that conception cannot be subsumed and integrated

into   a   definition   where   the   provision   is   clear   and

unambiguous   and   does   not   admit   of   any   other

interpretation. If a victim is mentally retarded, definitely

the court trying the case shall take into consideration

whether   there   is   a   consent   or   not.   In   certain

circumstances, it would depend  upon the degree of

retardation or degree of understanding. It should never

be put in a straight jacket formula. It is difficult to say in

absolute terms.

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84. In this regard, I may profitably refer to Section 164

CrPC which deals with recording of confessions and

statement. Section 164(5A)(b), which is pertinent, reads

as under:

“(b) A statement recorded under clause (a) of a person,   who   is   temporarily   or   permanently mentally   or   physically   disabled,   shall   be considered a statement in lieu of examination­inchief, as specified in section 137 of the Indian Evidence Act, 1872 such that the maker of the statement   can   be   cross­examined   on   such statement, without the need for recording the same at the time of trial.”

The purpose of referring to the said provision is to

highlight that the Parliament has legislated to safeguard

the interest of mentally disabled person.

85. Needless   to   emphasise   that   courts   sometimes

expand or stretch the meaning of a phrase by taking

recourse to purposive interpretation. A Judge can have a

constructionist approach but there is a limitation to his

sense of creativity.  In the instant case,  I am obliged to

state that stretching of the words “age” and “year” would

be encroaching upon the legislative function. There is no

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necessity. In  Census Commissioner & others v. R.

Krishnamurthy60, the three­Judge Bench has ruled:

“No adjudicator or a Judge can conceive the idea that the sky is the limit or for that matter there is no   barrier   or   fetters   in   one’s   individual perception,   for   judicial   vision   should   not   be allowed   to   be   imprisoned   and   have   the potentiality   to   cover   celestial   zones.   Be   it ingeminated,   refrain   and   restrain   are   the essential virtues in the arena of adjudication because   they   guard   as   sentinel   so   that virtuousness   is   constantly   sustained.   Not   for nothing, centuries back Francis Bacon61 had to say thus: “Judges ought to be more learned than witty, more reverend than plausible, and more   advised   than   confident.   Above   all things, integrity is their portion and proper virtue. … Let the Judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne.”

 

In the said case, a passage from Frankfurter, J.62

was reproduced which I think it apt to quote:

“For the highest exercise of judicial duty is to subordinate one’s private personal pulls and one’s private   views   to   the   law   of   which   we   are   all guardians—those impersonal convictions that make a society a civilised community, and not the victims of personal rule.”

 

60 (2015) 2 SCC 796 61 Bacon, “Essays: Of Judicature in Vol. I  The Works of Francis Bacon” [Montague, Basil, Esq (Eds.), Philadelphia: A Hart, Late Carey & Hart, 1852], pp. 58-59. 62 Frankfurter, Felix in Clark, Tom C., “Mr Justice Frankfurter: ‘A Heritage for all Who Love the Law’ ” (1965) 51 ABAJ 330 at p. 332

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86. In State of Uttar Pradesh and others v. Subhash

Chandra Jaiswal and others63, it has been held:

“17. A Judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so that he can see what he intends to see. There has to be a set of facts to express an opinion and that too, within the parameters of law.

x x x x

19. In Vemareddy Kumaraswamy Reddy v. State of A.P.64 the Court observed that:

“15. … the Judges should not proclaim that they are playing the role of a law­maker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from   legislation.   That   line   should   not   be crossed or erased.”

87. In   view   of   the   aforesaid   principles,   the   only

conclusion that can be arrived at is that definition in

Section   2(d)   defining   the   term   “age”   cannot   include

mental age.

88. Having said so, I would have proceeded to record

the formal conclusion. But, in the instant case, I am

disposed to think,  more so, when the accused has

63 (2017) 5 SCC 163 64 (2006) 2 SCC 670

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breathed his last and there is a medical certificate from

AIIMS as regards the mental disability of the victim, there

should be no further enquiry as envisaged under Section

357A of the CrPC. The said provision reads as follows:

“357A Victim compensation scheme. ­ (1) Every State Government in co­ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as   a   result   of   the   crime   and   who   require rehabilitation.

(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub­section (1).

(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application   to   the   State   or   the   District   Legal Services Authority for award of compensation.

(5) On receipt of such recommendations or on the application under sub­section (4), the State or the District Legal Services Authority shall, after due

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enquiry   award   adequate   compensation   by completing the enquiry within two months.

(6)   The   State   or   the   District   Legal   Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first­aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the   police   station   or   a   Magistrate   of   the   area concerned,   or   any   other   interim   relief   as   the appropriate authority deems fit.”

On a perusal of the aforesaid provision, it is quite vivid

that   when   Court   makes   a   recommendation   for

compensation, the District Legal Services Authority or

the State Legal Services Authority is required to decide

the quantum of compensation to be awarded under the

Scheme   prepared   by   the   State   Government   in

coordination   with   the   Central   Government.   The

State/District Legal Services Authority has to conduct an

inquiry   and   award   the   adequate   compensation   by

completing the inquiry.  Had the accused been alive, the

trial would have taken place in a Court of Session as

provided under the CrPC.  As the accused has died and

the victim is certified to be a mentally disabled person

and is fighting the lis for some time to come within the

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purview of the POCSO Act wherein the trial is held in a

different   manner   and   the   provisions   relating   to   the

compensation are different, I direct that the State Legal

Services Authority, Delhi shall award the compensation

keeping   in   view   the   Scheme   framed   by   the   Delhi

Government.   As  regards  the   quantum,   I  am  of  the

convinced opinion that it is a fit case where the victim

should   be   granted   the   maximum   compensation   as

envisaged under the Scheme. I clarify that it is so

directed regard being had to the special features of the

case.

89. The appeals are disposed of, accordingly.

………………………………………J.         [DIPAK MISRA]

NEW DELHI; JULY 21, 2017

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Reportable

REPORTABLE

IN THE SUPREME COURT OF INDIA                       CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NOS.2640-2642 OF 2016

Ms. Eera through Dr. Manjula Krippendorf     …Petitioner

Versus

State (Govt. of NCT of Delhi) and Anr.       …Respondents

J U D G M E N T

R.F.NARIMAN, J. (concurring)

1. Having read the erudite judgment of my

learned brother, and agreeing fully with him on the

conclusion reached, given the importance of the

Montesquiean separation of powers doctrine where

the judiciary should not transgress from the field of

judicial law making into the field of legislative law

making, I have felt it necessary to add a few words

of my own.

2. Mr. Sanjay R. Hegde, the learned Amicus

Curiae, has argued before us that the interpretation

of Section 2(1)(d) of the Protection of Children from

Sexual Offences Act, 2012 cannot include “mental”

age as such an interpretation would be beyond the

‘Lakshman Rekha’ – that is, it is no part of this

Court’s function to add to or amend the law as it

stands.  This Court’s function is limited to

interpreting the law as it stands, and this being the

case, he has exhorted us not to go against the plain

literal meaning of the statute.

3. Since Mr. Hegde’s argument raises the

constitutional spectre of separation of powers, let it

first be admitted that under our constitutional

scheme, Judges only declare the law; it is for the

legislatures to make the law.  This much at least is

clear on a conjoint reading of Articles 141 and 245

of the Constitution of India, which are set out

hereinbelow:

“141. Law declared by Supreme Court to be binding on all courts.

The law declared by the Supreme Court shall be binding on all courts within the territory of India.

245. Extent of laws made by Parliament and by the Legislatures of States.

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(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.

(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.”

4. That the Legislature cannot ‘declare’ law is

embedded in Anglo Saxon jurisprudence.  Bills of

attainder, which used to be passed by Parliament in

England, have never been passed from the 18th

century onwards. A legislative judgment is

anathema. As early as 1789, the U.S. Constitution

expressly outlawed bills of attainder vide Article I

Section 9(3).  This being the case with the

Legislature, the counter argument is that the

Judiciary equally cannot ‘make’ but can only

‘declare’ law.  While declaring the law, can Judges

make law as well?  This interesting question has

haunted Anglo-Saxon jurisprudence for at least 500

years. Very early in the history of this jurisprudence,

Heydon’s case, 76 E.R. 637 [1584] declared as

under:

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“And it was resolved by them, that for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:

1st. What was the common law before the making of the Act, 2nd. What was the mischief and defect for which the common law did not provide, 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and   pro privato commodo  , and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico  .”

5. Several centuries later, the Privy Council, (in a

case which came up from the Bombay High Court,

construing the Ship Registry Act of 1841) in

Crawford v. Spooner, Moore’s Indian Appeals,

Volume 4 (1846 to 1850) 179, held as follows:

“Their Lordships are clearly of opinion, that the Judgment of the Court of Bombay cannot stand. The construction of the Act must be taken from the bare words of the Act. We cannot fish out

107

what possibly may have been the intention of the Legislature; we cannot aid the Legislature’s defective phrasing of the Statute; we cannot add, and mend, and, by construction, make up deficiencies which are left there. If the Legislature did intend that which it has not expressed clearly; much more, if the Legislature intended something very different; if the Legislature intended something pretty nearly the opposite of what is said, it is not for Judges to invent something which they do not meet with in the words of the text (aiding their construction of the text always, of course, by the context); it is not for them so to supply a meaning, for, in reality, it would be supplying it: the true way in these cases is, to take the words as the Legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble or by the context of the words in question, controlled or altered; and, therefore, if any other meaning was intended than that which the words purport plainly to import, then let another Act supply that meaning, and supply the defect in the previous Act.” “It appears to their Lordships, therefore, that this is a case, free from all reasonable doubt, and that they must construe the words of the Act, as they find them.” (at pages 187 & 189)

6. About a decade later, in Grey v. Pearson,

1857 (6) HLC 61, Lord Wensleydale declared:

“I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in

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the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered  to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.  This is laid down by Mr. Justice Burton, in a very excellent opinion, which is to be found in the case of Warburton v. Loveland (see ante, p. 76. n.).” (at page no.1234)

7. This celebrated passage has since come to

represent what has been described as the ‘Golden

Rule’ of interpretation of statutes. The construction

of a clause in a will was before the House of Lords

and not the construction of a statute. Nevertheless,

the “Golden Rule” was held to cover the

construction of wills, statutes and all other written

instruments.

8. It will be noticed, that both the Privy Council

and the House of Lords emphasized the literal

meaning of the text of a statute.  Interestingly, the

Privy Council added that the text must necessarily

be construed with the aid of the context of the words

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that are to be construed, and that the words in

question could be controlled or altered by the

context or the Preamble of the statute.  The House

of Lords went further, and stated that the

grammatical and ordinary sense of the words to be

construed would be given effect to unless it would

lead to some absurdity, repugnance, or

inconsistency with the rest of the statute, in which

case the grammatical and ordinary sense of the

words may be modified so as to avoid such

absurdity or inconsistency, but no further. It is

important to note that, even under this rule, the

literal meaning of the text of a statute is not

sacrosanct, and can, in certain exceptional

circumstances, be modified. However, the

immediate consequence of applying the literal rule

of construction of a statute is that words must be

understood in their ordinary grammatical sense.

One obvious problem with this is that words often

have different shades of meaning and are not fixed

in their content.  This was put rather well by Justice

Holmes in Towne v. Eisner, 245 U.S. 418:

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“But it is not necessarily true that income means the same thing in the Constitution and the Act. A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” 65

9. Judge Learned Hand of the Court of Appeals

New York also conveyed the same thought rather

felicitously in Commissioner of Internal Revenue

v. Ickelheimer, 132 Federal Reporter, 2d Series,

660 as follows:

“Compunctions about judicial legislation are right enough as long as we have any genuine doubt as to the breadth of the legislature’s intent; and no doubt the most important single factor in ascertaining its intent is the words it employs. But the colloquial words of a statute have not the fixed and artificial content of scientific symbols; they have a penumbra, a dim fringe, a connotation, for they express an attitude of will, into which it is our duty to penetrate and which we must enforce ungrudgingly when we can ascertain it, regardless of imprecision in its expression.” (at page 662)

65    Interestingly, Charles Evans Hughes argued the case on behalf of the appellant just after he stepped down from the Supreme Court as a Justice thereof in order to fight a Presidential election.  He fought the election and lost.  Thereafter, he went to New York and set up an extremely lucrative law practice.  He eventually became the 11th Chief Justice of the Supreme Court of the United States, being appointed in 1930 and having retired in 1941.

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10. In an illuminating article by Archibald Cox in

60 Harv. Law Rev. 370, 1946-47, the learned author

put the dilemma between literal and purposive

construction thus:

“The task of interpretation, thus conceived, presents a second insoluble dilemma.  Since the words of a statute are chosen by the legislature to express its meaning, they are “no doubt the most important single factor in ascertaining its intent.” Our belief in the supreme importance of a public, fixed, and ascertainable standard of conduct requires, moreover, a measure of adherence to what those subject to a statute would understand to be the meaning of its terms. Yet “there is no surer way to misread any document than to read it literally.” Common speech is not exact and often does not precisely fit those situations, and those only, which a statute seeks to cover. Indispensable words have gathered up connotations in the past which cling persistently in new surroundings. And even if some technical terminology like that of science were available, legislatures could not anticipate and provide with particularity for each set of circumstances comprehended within a general purpose. The result is that “in every interpretation we must pass between Scylla and Charybdis.” No one has ever suggested that the courts must always follow the letter of a statute regardless of the outcome, nor does anyone contend that the words may be entirely disregarded. The issue is where

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to strike the balance.”   (at page Nos.375 and 376)

11. Added to these problems is the problem of

inept draftsmanship. In Kirby v. Leather, 1965(2)

All E.R. 441, Danckwerts, L.J., criticised the

language of the Limitation Act, 1939 when he spoke

of the custody of a parent.  He wrote:

“The custody of a parent”: what a strange conception that is in regard to a capable young man of twenty-four years and over. This is such an extraordinary provision that at times it seemed to me that the draftsman must have been of unsound mind.  Of course that is absurd. The same provision has been repeated in the Law Reform (Limitation of Actions, &c.) Act, 1954, and the Limitation Act 1963. We must strain ourselves to give it a sensible meaning. The idea behind this provision is, I suppose, that the parent in such a case will be capable of taking proceedings as the next friend of the person in question.” (at page 445)

12. Similarly, in Vandyk v. Oliver [1976] 1 All ER

466, Lord Lord Wilberforce, lamented:

“It is said, however, that this result, farreaching as it is, follows from the wording of the section. As to this I would say two things: first, if ever there was a case for preferring a purposive to a literal interpretation, this is such a case. The section is a labyrinth, a minefield of obscurity. The key subsection (d) refers

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back to (a), (b) or (c) with a connecting link described as similarity in kind: yet no criterion of similarity is given; so we are offered criteria based on “purpose” or “function”, or on these words in combination. But this introduces yet further difficulties, for there is acute dispute, if purpose is the test, whose purpose is meant and whether this must be the sole or dominant purpose, or any purpose: if function is meant whether this is the same thing as actual use, or whether the word again introduces the conception of purpose. Then on the incorporated subsections, there is a difference of view whether a National Health authority had power to provide accommodation for a person in the position of the ratepayer or whether the power (conferred by the 1968 Act) is an ancillary power to the provision of care. Similar difficulties arise under para (c). My Lords, I revolt against a step by step approach, from one doubtful expression to another, where each step is hazardous, through referential legislation, towards a conclusion, to my mind so far out of accord with any credible policy. The fact that Parliament for its own purposes chooses to legislate in this obscure manner does not force us to be the blind led by the blind.” (at page No.470)

13. The Indian Income Tax Act, 1960 has also

been the subject matter of judicial criticism.  Often,

amendment follows upon amendment making the

numbering and the meaning of its sections and sub

sections both bizarre and unintelligible.  One such

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criticism by Hegde, J. in Commissioner of Income

Tax v. Distributor (Baroda) (P) Ltd., (1972) 4 SCC

353, reads as follows:

“We have now to see what exactly in the meaning of the expression “in the case of a company whose business consists wholly or mainly in the dealing in or holding of investments” in the main Section 23-A and the expression “in the case of a company whose business consist wholly or mainly in the dealing in or holding of investments” in clause (i) of Explanation 2 to Section 23-A. The Act contains many mind-twisting formulas but Section 23-A along with some other sections takes the place of pride amongst them. Section 109 of the 1961 Income Tax Act which has taken the place of old Section 23-A of the Act is more understandable and less abstruse. But in these appeals we are left with Section 23-A of the Act.” (Para 15)

14. All this reminds one of the old British ditty:

“I’m the Parliament’s draftsman, I compose the country’s laws, And of half the litigation I’m undoubtedly the cause!”

15. In order that inept draftsmanship be

explained, in the old days sometimes the Judges

themselves enquired of the King’s Council what a

statute meant. (See Dias’ jurisprudence Second

edition – see page 110 footnote 2). The whole

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difficulty lies in defining the limits of the ‘Lakshman

Rekha’. In a House of Lord’s judgment, in Boyse v.

Rossborough, 1857 6 HLC 61 which dealt with

whether a will was valid, Lord Cranworth held:

“The inquiries must be: First, was the alleged testator at the time of its execution a person of sound mind?  And if he was, then, secondly, was the instrument in question the expression of his genuine will, or was it the expression of a will created in his mind by coercion or fraud?

On the first head the difficulty to be grappled with arises from the circumstance that the question is almost always one of degree. There is no difficulty in the case of a raving madman or of a drivelling idiot, in saying that he is not a person capable of disposing of property.  But between such an extreme case and that of a man of perfectly sound and vigorous understanding, there is every shade of intellect, every degree of mental capacity.  There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine.”

16. All this leads to whether Judges do creatively

interpret statutes and are unjustifiably criticized as

having in fact legislated, or whether in the guise of

creative interpretation they actually step outside the

‘Lakshman Rekha’.  As Justice Cardozo has

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picturesquely put it: the Judge is not to innovate at

pleasure.  He is not a knight errant roaming at will in

pursuit of his own ideal of beauty or of goodness

(See: Cardozo, Nature of Judicial Process, P. 141).

Opposed to this rather conservative view is the view

of Justice Holmes, in a celebrated dissent, in

Southern P. Co. v. Jensen, 244 US 205 at page

221:

“I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.”

17. The Supreme Court of India has echoed the

aforesaid statement  in at least two judgments.  In

V.C. Rangadurai v. D. Gopalan & Others, 1979 1

SCR 1054, Krishna Iyer, J. when confronted with

the correct interpretation of Section 35(3) of the

Advocates Act, 1961, held:

“Speaking frankly, Section 35(3) has a mechanistic texture, a set of punitive pigeon holes, but we may note that words grow in content with time and circumstance, that phrases are flexible in semantics, that the printed text is a set of vessels into which the court may pour appropriate judicial meaning. That statute is sick which is allergic to change

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in sense which the times demand and the text does not countermand. That court is superficial which stops with the cognitive and declines the creative function of construction. So, we take the view that “quarrying” more meaning is permissible out of Section 35(3) and the appeal provisions, in the brooding background of social justice sanctified by Article 38, and of free legal aid enshrined by Article 39-A of the Constitution.

xx  xx xx

Judicial “Legisputation” to borrow a telling phrase of J. Cohen, is not legislation but application of a given legislation to new or unforeseen needs and situations broadly falling within the statutory provision. In that sense, “interpretation is inescapably a kind of legislation” [Dickerson: The Interpretation and Application of Statutes, p. 238]. This is not legislation stricto sensu but application, and is within the court’s province.” (at pages 1059 and 1060)

18. Similarly, in C.I.T. v. B.N. Bhattacharjee,

1979 (3) SCR 1133 the same learned Judge in

construing Section 245M of the Income Tax Act

stated:

“We are mindful that a strictly grammatical construction is departed from in this process and a mildly legislative flavour is imparted by this interpretation. The judicial process does not stand helpless with folded hands but

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engineers its way to discern meaning when a new construction with a view to rationalisation is needed.” (at page 1155)

19. In Directorate of Enforcement v. Deepak

Mahajan, 1994 3 SCC 440, this Court held:

“Though the function of the Courts is only to expound the law and not to legislate, nonetheless the legislature cannot be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law. In such circumstances, it is the duty of the court to mould or creatively interpret the legislation by liberally interpreting the statute. 25. In Maxwell on Interpretation of Statutes, Tenth Edn. at page 229, the following passage is found:

“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. … Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman’s unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used.”

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26. In Seaford Court Estates Ltd. v. Asher [(1949) 2 All ER 155, 164] Denning, L.J. said:

“[W]hen a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament … and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”

27. Though the above observations of Lord Denning were disapproved in appeal by the House of Lords in Magor and St. Mellons v. Newport Corpn. [(1951) 2 All ER 839 (HL)] Sarkar, J. speaking for the Constitution Bench in M. Pentiah v. Muddala Veeramallappa [(1961) 2 SCR 295 : AIR 1961 SC 1107] adopted that reasoning of Lord Denning. Subsequently also, Beg, C.J. in Bangalore Water Supply and Sewerage Board v. A. Rajappa [(1978) 2 SCC 213: 1978 SCC (L&S) 215 : AIR 1978 SC 548] approved the observations of Lord Denning stating thus: (SCC p. 285, para 148)

“Perhaps, with the passage of time, what may be described as the extension of a method resembling the ‘arm-chair rule’ in the construction of wills, Judges can more frankly step into the shoes of

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the legislature where an enactment leaves its own intentions in much too nebulous or uncertain a state.” (emphasis supplied)

28. It will be befitting, in this context, to recall the view expressed by Judge Frank in Guiseppi v. Walling [144 F 2d 608, 620, 622 (CCA 2d, 1944) quoted in 60 Harvard Law Review 370, 372] which read thus:

“The necessary generality in the wordings of many statutes, and ineptness of drafting in others frequently compels the court, as best as they can, to fill in the gaps, an activity which no matter how one may label it, is in part legislative. Thus the courts in their way, as administrators perform the task of supplementing statutes. In the case of courts, we call it ‘interpretation’ or ‘filling in the gaps’; in the case of administrators we call it ‘delegation’ or authority to supply the details.”

29. Subba Rao, C.J. speaking for the Bench in Chandra Mohan v. State of U.P. [(1967) 1 SCR 77 : AIR 1966 SC 1987 : (1967) 1 LLJ 412] has pointed out that the fundamental rule of interpretation is that in construing the provisions of the Constitution or the Act of Parliament, the Court “will have to find out the express intention from the words of the Constitution or the Act, as the case may be …” and eschew the construction which will lead to absurdity and give rise to practical inconvenience or make the provisions of the existing law nugatory.

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A.P. Sen, J. in Organo Chemical Industries v. Union of India [(1979) 4 SCC 573 : 1980 SCC (L&S) 92 : (1980) 1 SCR 61] has stated thus: (SCR p. 89 : SCC p. 586, para 23)

“A bare mechanical interpretation of the words ‘devoid of concept or purpose’ will reduce most of legislation to futility. It is a salutary rule, well established, that the intention of the legislature must be found by reading the statute as a whole.”

30. Krishna Iyer, J. has pointed out in his inimitable style in Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee [(1977) 2 SCC 256 : 1977 SCC (L&S) 226 : AIR 1977 SC 965] : “To be literal in meaning is to see the skin and miss the soul of the Regulation.”” (at page Nos.453 to 455)

20. All this has led to what may be called the

theory of Creative Interpretation.  This theory was

reiterated in Union of India v. Elphinstone

Spinning and Weaving Co. Ltd. and Ors, 2001 (4)

SCC 139:-

“While examining a particular statute for finding out the legislative intent it is the attitude of Judges in arriving at a solution by striking a balance between the letter and spirit of the statute without acknowledging that they have in any way supplemented the statute would be the proper criterion. The duty of Judges is to expound and not to legislate is a

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fundamental rule. There is no doubt a marginal area in which the courts mould or creatively interpret legislation and they are thus finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing. (See: Corocraft Ltd. v. Pan American Airways Inc. [(1968) 3 WLR 714 : (1968) 2 All ER 1059 : (1969) 1 QB 616] WLR, p. 732 and State of Haryana v. Sampuran Singh [(1975) 2 SCC 810].) But by no stretch of imagination a Judge is entitled to add something more than what is there in the statute by way of a supposed intention of the legislature. It is, therefore, a cardinal principle of construction of statutes that the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed.” [at para 17]

21. Instances of creative interpretation are when

the Court looks at both the literal language as well

as the purpose or object of the statute in order to

better determine what the words used by the

draftsman of legislation mean. In D.R.

Venkatachalam v. Deputy Transport

Commissioner, (1977) 2 SCC 273, an early

instance of this is found in the concurring judgment

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of Beg, J. The learned Judge put it rather well when

he said:

“It is, however, becoming increasingly fashionable to start with some theory of what is basic to a provision or a chapter or in a statute or even to our Constitution in order to interpret and determine the meaning of a particular provision or rule made to subserve an assumed “basic” requirement. I think that this novel method of construction puts, if I may say so, the cart before the horse. It is apt to seriously mislead us unless the tendency to use such a mode of construction is checked or corrected by this Court. What is basic for a section or a chapter in a statute is provided: firstly, by the words used in the statute itself; secondly, by the context in which a provision occurs, or, in other words, by reading the statute as a whole; thirdly, by the preamble which could supply the “key” to the meaning of the statute in cases of uncertainty or doubt; and, fourthly, where some further aid to construction may still be needed to resolve an uncertainty, by the legislative history which discloses the wider context or perspective in which a provision was made to meet a particular need or to satisfy a particular purpose. The last mentioned method consists of an application of the Mischief Rule laid down in Heydon’s case long ago.” [para 28]

22. In the celebrated judgment of Reserve Bank

of India v. Peerless General Finance &

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Investment Co. Ltd. and Others, (1987) 1 SCC

424, O. Chinnappa Reddy, J. stated:

“Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression “Prize Chit” in Srinivasa [(1980) 4 SCC 507 : (1981) 1 SCR 801 : 51 Com Cas 464] and we

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find no reason to depart from the Court’s construction.” [para 33]

23. Indeed, the modern trend in other

Commonwealth countries, including the U.K. and

Australia, is to examine text as well as context, and

object or purpose as well as literal meaning.  Thus,

in Oliver Ashworth Ltd. V. Ballard Ltd., [1999] 2

All ER 791, Laws L.J. stated the modern rule as

follows:

“By way of introduction to the issue of statutory construction I should say that in my judgment it is nowadays misleading — and perhaps it always was — to seek to draw a rigid distinction between literal and purposive approaches to the interpretation of Acts of Parliament. The difference between purposive and literal construction is in truth one of degree only. On received doctrine we spend our professional lives construing legislation purposively, inasmuch as we are enjoined at every turn to ascertain the intention of Parliament. The real distinction lies in the balance to be struck, in the particular case, between the literal meaning of the words on the one hand and the context and purpose of the measure in which they appear on the other. Frequently there will be no opposition between the two, and then no difficulty arises. Where there is a potential clash, the conventional English approach has been to give at least very great and often decisive weight to the

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literal meaning of the enacting words. This is a tradition which I think is weakening, in face of the more purposive approach enjoined for the interpretation of legislative measures of the European Union and in light of the House of Lords’ decision in Pepper (Inspector of Taxes) v. Hart [1993] 1 All E. R. 42, [1993] A.C 593. I will not here go into the details or merits of this shift of emphasis; save broadly to recognise its virtue and its vice. Its virtue is that the legislator’s true purpose may be more accurately ascertained. Its vice is that the certainty and accessibility of the law may be reduced or compromised. The common law, which regulates the interpretation of legislation, has to balance these considerations.”

And in R. (Quintavalle) v. Secretary of State for

Health, [2003] 2 All E.R.113, Lord Steyn put it thus:

“On the other hand, the adoption of a purposive approach to construction of statutes generally, and the 1990 Act in particular, is amply justified on wider grounds.  In Cabell v Markham (1945) 148 F 2d 737 at 739 Learned Hand J explained the merits of purposive interpretation:

‘Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else.  But it is one of the surest indexes of a mature developed jurisprudence not to make a

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fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.’

 

The pendulum has swung towards purposive methods of construction.  This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Comrs v Adamson (1877) 2 App Cas 743 at 763, [1874-80] All ER Rep 1 at 11. In any event, nowadays the shift towards purposive interpretation is not in doubt.  The qualification is that the degree of liberality permitted is influenced by the context, e.g. social welfare legislation and tax statutes may have to be approached somewhat differently.  For these slightly different reasons I agree with the conclusion of the Court of Appeal that s 1(1) of the 1990 Act must be construed in a purposive way.” (at 122, 123)66

We find the same modern view of the law in CIC

Insurance Limited v. Bankstown Football Club

Limited, F.C. (1997) 187 CLR 384, where the High

Court of Australia put it thus: 66   In a recent judgment by a 7 Judge Bench of this Court , the majority, speaking through Lokur, J., referred to the aforesaid judgment with approval.  See Abhiram Singh  v. C.D. Commachen 2017 (2) SCC 629 at Para 37.

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“It is well settled that at common law, apart from any reliance upon 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. [Black-Clawson International Ltd v Papierwerke WaldhofAschaffenburg [1975] UKHL 2; [1975] AC 591 at 614, 629, 638; Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1 at 25-26; Pepper v Hart [1992] UKHL 3; [1993] AC 593 at 630.]. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy [Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 312, 315.]. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd. [(1986) 6 NSWLR 363 at 388.], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an

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alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. [Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321].”

24. It is thus clear on a reading of English, U.S.,

Australian and our own Supreme Court judgments

that the ‘Lakshman Rekha’ has in fact been

extended to move away from the strictly literal rule

of interpretation back to the rule of the old English

case of Heydon, where the Court must have

recourse to the purpose, object, text, and context of

a particular provision before arriving at a judicial

result.  In fact, the wheel has turned full circle.  It

started out by the rule as stated in 1584 in Heydon’s

case, which was then waylaid by the literal

interpretation rule laid down by the Privy Council and

the House of Lords in the mid 1800s, and has come

back to restate the rule somewhat in terms of what

was most felicitously put over 400 years ago in

Heydon’s case.

25. Coming to the statute at hand, it was argued

before us that even though the statute is a

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beneficial one, it is penal as well, and that therefore

its provisions ought to be strictly construed.  Here

again, the modern trend in construing penal statutes

has moved away from a mechanical incantation of

strict construction.  In Lalita Jalan v. Bombay Gas

Co. Ltd. and Ors., (2003) 6 SCC 107, this Court

referred to the correct principle of construction of

penal statutes as follows:

“We would like to mention here that the principle that a statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case. In Murlidhar Meghraj Loya v. State of Maharashtra [(1976) 3 SCC 684 : 1976 SCC (Cri) 493 : AIR 1976 SC 1929] Krishna Iyer, J. held that any narrow and pedantic, literal and lexical construction of food laws is likely to leave loopholes for the offender to sneak out of the meshes of law and should be discouraged and criminal jurisprudence must depart from old canons defeating criminal statutes calculated to protect the public health and the nation’s wealth. The same view was taken in another case under the Prevention of Food Adulteration Act in Kisan Trimbak Kothula v. State of Maharashtra [(1977) 1 SCC 300 : 1977 SCC (Cri) 97 : AIR 1977 SC 435] . In Supdt. and Remembrancer of Legal Affairs to Govt. of W.B. v. Abani Maity [(1979) 4 SCC 85 : 1979 SCC (Cri) 902 : AIR 1979 SC

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1029] the word “may” occurring in Section 64 of the Bengal Excise Act was interpreted to mean “must” and it was held that the Magistrate was bound to order confiscation of the conveyance used in commission of the offence. Similarly, in  State of Maharashtra v. Natwarlal Damodardas Soni [(1980) 4 SCC 669 : 1981 SCC (Cri) 98 : AIR 1980 SC 593] with reference to Section 135 of the Customs Act and Rule 126-H(2)(d) of the Defence of India Rules, the narrow construction given by the High Court was rejected on the ground that they will emasculate these provisions and render them ineffective as a weapon for combating gold smuggling. It was further held that the provisions have to be specially construed in a manner which will suppress the mischief and advance the object which the legislature had in view. The contention raised by learned counsel for the appellant on strict interpretation of the section cannot therefore be accepted.” [para 18] This was followed in Iqbal Singh Marwah and

Another vs. Meenakshi Marwah and Another,

(2005) 4 SCC 370 at pages 388 and 389.

26. In fact, interestingly enough, a judgment of

this Court in S. Gopal Reddy vs. State of A.P.,

(1996) 4 SCC 596 construed the Dowry Prohibition

Act, which is undoubtedly a beneficial legislation

containing drastic penal provisions, as follows:

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“It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary. We are unable to persuade ourselves to agree with Mr. Rao that it is only the property or valuable security given at the time of marriage which would bring the same within the definition of ‘dowry’ punishable under the Act, as such an interpretation would be defeating the very object for which the Act was enacted. Keeping in view the object of the Act, “demand of dowry” as a consideration for a proposed marriage would also come within the meaning of the expression dowry under the Act. If we were to agree with Mr. Rao that it is only the ‘demand’ made at or after marriage which is punishable under Section 4 of the Act, some serious consequences, which the legislature wanted to avoid, are bound to follow. Take for example a case where the bridegroom or his parents or other relatives make a ‘demand’ of dowry during marriage negotiations and later on after bringing the bridal party to the bride’s house find that the bride or her parents or relatives have not met the earlier ‘demand’ and call off the marriage and leave the bride’s house, should they escape the punishment under the Act. The answer has to be an emphatic ‘no’. It would be adding insult to injury if we were to countenance that their action would not attract the provisions of Section 4 of the Act. Such

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an interpretation would frustrate the very object of the Act and would also run contrary to the accepted principles relating to the interpretation of statutes.” [para 12]

27. A recent judgment, also discussing the

provisions of the Dowry Prohibition Act, is reported

as Rajinder Singh v. State of Punjab, (2015) 6

SCC 477.  Discussing the reach of Section 304B of

the Penal Code read with the Dowry Prohibition Act,

this Court has held:

“In order to arrive at the true construction of the definition of dowry and consequently the ingredients of the offence under Section 304-B, we first need to determine how a statute of this kind needs to be interpreted. It is obvious that Section 304-B is a stringent provision, meant to combat a social evil of alarming proportions. Can it be argued that it is a penal statute and, should, therefore, in case of ambiguity in its language, be construed strictly?  The answer is to be found in two pathbreaking judgments of this Court. In M. Narayanan Nambiar v. State of Kerala [AIR 1963 SC 1116 : (1963) 2 Cri LJ 186 : 1963 Supp (2) SCR 724] , a Constitution Bench of this Court was asked to construe Section 5(1)(d) of the Prevention of Corruption Act, 1947. In construing the said Act, a penal statute, Subba Rao, J. stated: (AIR p. 1118, para 9)

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“9. The Preamble indicates that the Act was passed as it was expedient to make more effective provisions for the prevention of bribery and corruption. The long title as well as the Preamble indicate that the Act was passed to put down the said social evil i.e. bribery and corruption by public servant. Bribery is a form of corruption. The fact that in addition to the word ‘bribery’ the word ‘corruption’ is used shows that the legislation was intended to combat also other evil in addition to bribery. The existing law i.e. the Penal Code was found insufficient to eradicate or even to control the growing evil of bribery and corruption corroding the public service of our country. The provisions broadly include the existing offences under Sections 161 and 165 of the Penal Code, 1860 committed by public servants and enact a new rule of presumptive evidence against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some extent it overlaps on the pre-existing offences and enacts a rebuttable presumption contrary to the well-known principles of criminal jurisprudence. It also aims to protect honest public servants from harassment by prescribing that the investigation against them could be made only by police officials of particular status and by making the sanction of the

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Government or other appropriate officer a pre-condition for their prosecution. As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object i.e. to prevent corruption among public servants and to prevent harassment of the honest among them.

10. A decision of the Judicial Committee in Dyke v.Elliott, The Gauntlet [(1872) LR 4 PC 184], cited by the learned counsel as an aid for construction neatly states the principle and therefore may be extracted: Lord Justice James speaking for the Board observes at LR p. 191: ‘… No doubt all penal statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to

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the fair commonsense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument.’

In our view this passage, if we may say so, restates the rule of construction of a penal provision from a correct perspective.” In Standard Chartered Bank v. Directorate of Enforcement [Standard Chartered Bank v.  Directorate of Enforcement, (2005) 4 SCC 530 : 2005 SCC (Cri) 961] at pp. 547-48, another Constitution Bench, 40 odd years later, was faced with whether a corporate body could be prosecuted for offences for which the sentence of imprisonment is mandatory. By a majority of 3:2, the question was answered in the affirmative. Balakrishnan, J. held: (SCC paras 2324)

“23. The counsel for the appellant contended that the penal provision in the statute is to be strictly construed. Reference was made to Tolaram Relumal v. State of Bombay [AIR 1954 SC 496 : 1954 Cri LJ 1333 : (1955) 1 SCR 158] , SCR at p. 164 and Girdhari Lal Gupta v. D.H. Mehta [(1971) 3 SCC 189 : 1971 SCC (Cri) 279] . It is true that all penal statutes are to be strictly construed in the sense that the court must see that the thing charged as an offence is

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within the plain meaning of the words used and must not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. All penal provisions like all other statutes are to be fairly construed according to the legislative intent as expressed in the enactment. Here, the legislative intent to prosecute corporate bodies for the offence committed by them is clear and explicit and the statute never intended to exonerate them from being prosecuted. It is sheer violence to common sense that the legislature intended to punish the corporate bodies for minor and silly offences and extended immunity of prosecution to major and grave economic crimes.

24. The distinction between a strict construction and a more free one has disappeared in modern times and now mostly the question is ‘what is true construction of the statute?’ A passage in Craies on Statute Law, 7th Edn. reads to the following effect:

‘The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. “All modern Acts are framed with regard to equitable as

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well as legal principles.” “A hundred years ago”, said the court in Lyons case [R. v. Lyons, 1858 Bell CC 38 : 169 ER 1158] , “statutes were required to be perfectly precise and resort was not had to a reasonable construction of the Act, and thereby criminals were often allowed to escape. This is not the present mode of construing Acts of Parliament. They are construed now with reference to the true meaning and real intention of the legislature.’

At p. 532 of the same book, observations of Sedgwick are quoted as under:

‘The more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the legislature, without unwarrantable severity on the one hand or unjustifiable lenity on the other, in cases of doubt the courts inclining to mercy.’

Concurring with Balakrishnan, J., Dharmadhikari, J. added: (Standard Chartered Bank case [Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 : 2005 SCC (Cri) 961] , SCC pp. 550-51, para 36)

“36. The rule of interpretation requiring strict construction of penal statutes does not warrant a narrow and pedantic construction of a provision so as to leave loopholes for the offender to

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escape (see Murlidhar Meghraj Loya v. State of Maharashtra [(1976) 3 SCC 684 : 1976 SCC (Cri) 493] ). A penal statute has to also be so construed as to avoid a lacuna and to suppress mischief and to advance a remedy in the light of the rule inHeydon’s case [(1584) 3 Co Rep 7a : 76 ER 637] . A common-sense approach for solving a question of applicability of a penal statute is not ruled out by the rule of strict construction. (See State of A.P. v. Bathu Prakasa Rao [(1976) 3 SCC 301 : 1976 SCC (Cri) 395] and also G.P. Singh on Principles of Statutory Interpretation, 9th Edn., 2004, Chapter 11, Synopsis 3 at pp. 754 to 756.)”

And Arun Kumar, J., concurring with both the aforesaid Judges, followed two earlier decisions of this Court as follows: (Standard Chartered Bank case [Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 : 2005 SCC (Cri) 961] , SCC p. 556, paras 49-50)

“49. Another three-Judge Bench of this Court in a judgment in Balram Kumawat v. Union of India [(2003) 7 SCC 628] to which I was a party, observed in the context of principles of statutory interpretation: (SCC p. 635, para 23)

‘23. Furthermore, even in relation to a penal statute

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any narrow and pedantic, literal and lexical construction may not always be given effect to. The law would have to be interpreted having regard to the subjectmatter of the offence and the object of the law it seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal jurisprudence does not say so.’

50. In M.V. Javali v. Mahajan Borewell & Co. [(1997) 8 SCC 72 : 1997 SCC (Cri) 1239] this Court was considering a similar situation as in the present case. Under Section 278-B of the Income Tax Act a company can be prosecuted and punished for offence committed under Section 276-B; sentence of imprisonment is required to be imposed under the provision of the statute and a company being a juristic person cannot be subjected to it. It was held that the apparent anomalous situation can be resolved only by a proper interpretation of the section. The Court observed: (SCC p. 78, para 8)

‘8.Keeping in view the recommendations of the Law Commission and the above principles of interpretation of statutes we are of the opinion that the only harmonious construction that

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can be given to Section 276B is that the mandatory sentence of imprisonment and fine is to be imposed where it can be imposed, namely, on persons coming under categories (ii) and (iii) above, but where it cannot be imposed, namely, on a company, fine will be the only punishment.’”

In keeping with these principles, in K. Prema S. Rao v.Yadla Srinivasa Rao [(2003) 1 SCC 217 : 2003 SCC (Cri) 271] , this Court said: (SCC p. 228, para 27)

“27. The legislature has by amending the Penal Code and the Evidence Act made penal law more strident for dealing with and punishing offences against married women.”

In Reema Aggarwal v. Anupam [(2004) 3 SCC 199 : 2004 SCC (Cri) 699] , in construing the provisions of the Dowry Prohibition Act, in the context of Section 498-A, this Court applied the mischief rule made immortal by Heydon’s case [(1584) 3 Co Rep 7a : 76 ER 637] and followed Lord Denning’s judgment in Seaford Court Estates Ltd. v. Asher[(1949) 2 KB 481 : (1949) 2 All ER 155 (CA)] , where the learned Law Lord held: (Seaford Court Estates Ltd. case[(1949) 2 KB 481 : (1949) 2 All ER 155 (CA)] , KB p. 499) “… He must set to work on the constructive task of finding the intention of Parliament, and he

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must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give “force and life” to the intention of the legislature.” (Reema Aggarwal case [(2004) 3 SCC 199 : 2004 SCC (Cri) 699] , SCC p. 213, para 25) (emphasis in original)

The Court gave an expansive meaning to the word “husband” occurring in Section 498-A to include persons who entered into a relationship with a woman even by feigning to be a husband. The Court held: (Reema Aggarwal case [(2004) 3 SCC 199 : 2004 SCC (Cri) 699] , SCC p. 210, para 18)

“18. … It would be appropriate to construe the expression ‘husband’ to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions— Sections 304-B/498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498-A and 304-B IPC. Such an interpretation, known and recognised as purposive construction has to come into play in a case of this nature. The absence of a definition of

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‘husband’ to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as ‘husband’ is no ground to exclude them from the purview of Section 304-B or 498-A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions.”

Given that the statute with which we are dealing must be given a fair, pragmatic, and common sense interpretation so as to fulfil the object sought to be achieved by Parliament, we feel that the judgment in Appasaheb case [Appasaheb v. State of Maharashtra, (2007) 9 SCC 721(2007) 9 SCC 721 : (2007) 3 SCC (Cri) 468] followed by the judgment of Vipin Jaiswal [Vipin Jaiswal v. State of A.P., (2013) 3 SCC 684 : (2013) 2 SCC (Cri) 15] do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise.” [Paras 13 to 20]  28. In the case of the Employees’ Provident

Funds & Miscellaneous Provisions Act, 1952, again

a beneficial legislation with dire consequences to

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those who breach it, this Court construed a penalty

provision in the said statute by adopting a purposive

approach.  Thus, in N.K. Jain v. C.K. Shah, (1991)

2 SCC 495, this Court said:

“Relying on the aforesaid principles governing the construction of the penal statute Shri P. Chidambaram, learned counsel for the appellants submitted that the provisions of Section 14(2-A) and Section 17(4) should reasonably be construed and if so construed Section 14(2-A) becomes inapplicable to the facts of the case on hand. It is true that all the penal statutes should be construed strictly and the court must see that the thing charged as an offence is within the plain meaning of the words used but it must also be borne in mind that the context in which the words are used is important. The legislative purpose must be noted and the statute must be read as a whole. In our view taking into consideration the object underlying the Act and on reading Sections 14 and 17 in full, it becomes clear that cancellation of the exemption granted does not amount to a penalty within the meaning of Section 14(2-A). As already noted these provisions which form part of the Act, which is a welfare legislation are meant to ensure the employees the continuance of the benefits of the provident fund. They should be interpreted in such a way so that the purpose of the legislation is allowed to be achieved (vide International Ore and Fertilizers (India) Pvt. Ltd. v. Employees’ State

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Insurance Corporation [(1987) 4 SCC 203 : 1987 SCC (L&S) 391 : AIR 1988 SC 79] ). In Seaford Court Estates Ltd. v. Asher [(1949) 2 All ER 155 (CA)] , Lord Denning, L.J. observed: (All ER p. 164)

“The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature …. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”

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(emphas is supplied)

Therefore in a case of this nature, a purposive approach is necessary. However, in our view the interpretation of the word ‘penalty’ used in Section 14(2-A) does not present any difficulty and cancellation is not a punishment amounting to penalty within the meaning of this section.”

29. Bearing in mind that the Act with which we

are concerned is a beneficial/penal legislation, let us

see whether we can extend the definition of “child”

in Section 2(1)(d) thereof to include persons below

the mental age of 18 years.

30. The Statement of Objects and Reasons of the

2012 Act is set out hereunder:

“STATEMENT OF OBJECTS AND REASONS Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children.  Further, Article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity.

2. The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the

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State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b)  the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials.

3. The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children.  This is corroborated by the ‘Study on Child Abuse: India 2007’ conducted by the Ministry of Woman and Child Development.  Moreover, sexual offences against children are not adequately addressed by the existing laws.  A large number of such offences are neither specifically provided for nor are they adequately penalized. The interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence.

4. It is, therefore, proposed to enact a self contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard to safeguarding the interest and well being of the child at every stage of the judicial process, incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment

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of Special Courts for speedy trial of such offences.

5. The Bill would contribute to enforcement of the right of all children to safety, security and protection from sexual abuse and exploitation.

6. The notes on clauses explain in detail the various provisions contained in the Bill.

7. The Bill seeks to achieve the above objectives.”

Para 1 of the Statement of Objects and

Reasons makes it clear that the Act’s reach is only

towards the protection of children, as ordinarily

understood.  The scope of the Act is to protect their

“childhood and youth” against exploitation and to

see that they are not abused in any manner.

31. Section 2(1)(d), with which we are directly

concerned, is set out as under :

“2. Definitions : (1) In this Act, unless the context otherwise requires, — (a) xxx xxx  xxx (b) xxx xxx  xxx (c) xxx xxx  xxx (d) “child” means any person below the age of eighteen years.”

One look at this definition would show that it is

exhaustive, and refers to “any person” an elastic

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enough expression, below the age of 18 years.

“Year” is defined under the General Clauses Act as

follows:

“3(66). “year” shall mean a year reckoned according to the British calendar.”

This coupled with the word “age” would make

it clear that what is referred to beyond any

reasonable doubt is physical age only.

32. Section 5(k) makes this further clear when it

states:

“5.   Aggravated penetrative sexual assault –

(a) to (j) xxx xxx xxx

(k) whoever, taking advantage of a child’s mental or physical disability, commits penetrative sexual assault on the child.”

It will be seen that when mental disability is

spoken of, it is expressly mentioned by the statute,

and what is mentioned is a “child’s” mental disability

and not an adult’s.

33. That a child alone is referred to under the

other provisions of the Act is further made clear by

Section 13(a), which reads as under:

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“13. Use of child for pornographic purposes. – Whoever, uses a child in any form of media (including programme or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes—

(a) representation of the sexual organs of a child.”

Obviously, the sexual organs of a child cannot

ever be the sexual organs of an adult, whose

mental age may be less than 18 years.

34. Again, when we come to Section 27(3) of the

Act, it is clear that the Act refers only to children, as

commonly understood.  Section 27(3) of the 2012

Act reads as under :

“27. Medical examination of a child. –

(1) xxx  xxx  xxx

(2) xxx xxx xxx

(3) The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence.”

35. Section 39 again throws some light on this

knotty problem. The said Section reads as under :

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“39. Guidelines for child to take assistance of experts, etc. – Subject to such rules as may be made in this behalf, the State Government shall prepare guidelines for use of nongovernmental organisations, professionals and experts or persons having knowledge of psychology, social work, physical health, mental health and child development to be associated with the pre-trial and trial stage to assist the child.”

Here again, “physical health” and “mental

health” are juxtaposed with the expression “child

development”, and again, therefore, refer only to the

physical and mental age of a child and not an adult.

36. A reading of the Act as a whole in the light of

the Statement of Objects and Reasons thus makes

it clear that the intention of the legislator was to

focus on children, as commonly understood i.e.

persons who are physically under the age of 18

years.  The golden rule in determining whether the

judiciary has crossed the Lakshman Rekha in the

guise of interpreting a statute is really whether a

Judge has only ironed out the creases that he found

in a statute in the light of its object, or whether he

has altered the material of which the Act is woven.

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In short, the difference is the well-known

philosophical difference between “is” and “ought”.

Does the Judge put himself in the place of the

legislator and ask himself whether the legislator

intended a certain result, or does he state that this

must have been the intent of the legislator and

infuse what he thinks should have been done had

he been the legislator.  If the latter, it is clear that the

Judge then would add something more than what

there is in the statute by way of a supposed

intention of the legislator and would go beyond

creative interpretation of legislation to legislating

itself.  It is at this point that the Judge crosses the

Lakshman Rekha and becomes a legislator, stating

what the law ought to be instead of what the law is.

37. A scrutiny of other statutes in pari materia

would bring this into sharper focus.  The Medical

Termination of Pregnancy Act, 1971, again brings

into sharp focus the distinction between “mentally ill

persons” and “minors”.  Sections 2(b), (c) of the said

Act are as follows:

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“2.   Definitions.-In this Act, unless the context otherwise requires,-

(a) xxx xxx xxx

(b) “mentally ill person” means a person who is in need of treatment by reason of any mental disorder other than mental retardation.

(c) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his majority.”

38. Section 3(4)(a) of the 1971 Act reads as under

:

“3.    When pregnancies may be terminated by registered medical practitioners. –

(1)      xxx       xxx      xxx

(2)      xxx       xxx      xxx

(3)      xxx       xxx      xxx

(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.”

This provision again makes it clear that when

“the age  of  18  years”  occurs  in  a  statute, it has

reference only to physical age.  The distinction

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between a woman who is a minor and an adult

woman who is mentally ill is again brought into

sharp focus by the statute itself.  It must, therefore,

be held that Parliament, when it made the 2012 Act,

was fully aware of this distinction, and yet chose to

protect only children whose physical age was below

18 years.

39. The same result is reached if we peruse

certain provisions of the Mental Healthcare Act,

2017.   Sections 2(s), 2(t), 14 and 15 of the said Act

are as under:

2(s) “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence;

2(t) “minor” means a person who has not completed the age of eighteen years;

14 (1) Notwithstanding anything contained in clause (c) of sub-section (1) of section 5, every person who is not

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a minor, shall have a right to appoint a nominated representative.

(2) The nomination under sub-section (1) shall be made in writing on plain paper with the person’s signature or thumb impression of the person referred to in that sub-section.

(3) The person appointed as the nominated representative shall not be a minor, be competent to discharge the duties or perform the functions assigned to him under this Act, and give his consent in writing to the mental health professional to discharge his duties and perform the functions assigned to him under this Act.

(4) Where no nominated representative is appointed by a person under subsection (1), the following persons for the purposes of this Act in the order of precedence shall be deemed to be the nominated representative of a person with mental illness, namely:––

(a) the individual appointed as the nominated representative in the advance directive under clause (c) of sub-section (1) of section 5; or

 

(b) a relative, or if not available or not willing to be the nominated representative of such person; or

(c) a care-giver, or if not available or not willing to be the nominated representative of such person; or

(d) a suitable person appointed as such by the concerned Board; or

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(e) if no such person is available to be appointed as a nominated representative, the Board shall appoint the Director, Department of Social Welfare, or his designated representative, as the nominated representative of the person with mental illness:

Provided that a person representing an organisation registered under the Societies Registration Act, 1860 or any other law for the time being in force, working for persons with mental illness, may temporarily be engaged by the mental health professional to discharge the duties of a nominated representative pending appointment of a nominated representative by the concerned Board.

(5) The representative of the organisation, referred to in the proviso to sub-section (4), may make a written application to the medical officer incharge of the mental health establishment or the psychiatrist incharge of the person’s treatment, and such medical officer or psychiatrist, as the case may be, shall accept him as the temporary nominated representative, pending appointment of a nominated representative by the concerned Board.

(6) A person who has appointed any person as his nominated representative under this section may revoke or alter such appointment at any time in accordance with the procedure laid down for making an appointment of nominated representative under subsection (1).

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(7) The Board may, if it is of the opinion that it is in the interest of the person with mental illness to do so, revoke an appointment made by it under this section, and appoint a different representative under this section.

(8) The appointment of a nominated representative, or the inability of a person with mental illness to appoint a nominated representative, shall not be construed as the lack of capacity of the person to take decisions about his mental healthcare or treatment.

(9) All persons with mental illness shall have capacity to make mental healthcare or treatment decisions but may require varying levels of support from their nominated representative to make decisions.

15. (1) Notwithstanding anything contained in section 14, in case of minors, the legal guardian shall be their nominated representative, unless the concerned Board orders otherwise under sub-section (2).

(2) Where on an application made to the concerned Board, by a mental health professional or any other person acting in the best interest of the minor, and on evidence presented before it, the concerned Board is of the opinion that,––

(a) the legal guardian is not acting in the best interests of the minor; or

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(b) the legal guardian is otherwise not fit to act as the nominated representative of the minor, it may appoint, any suitable individual who is willing to act as such, the nominated representative of the minor with mental illness:

Provided that in case no individual is available for appointment as a nominated representative, the Board shall appoint the Director in the Department of Social Welfare of the State in which such Board is located, or his nominee, as the nominated representative of the minor with mental illness.”

A perusal of the provisions of the Mental

Healthcare Act would again show that a distinction

is made between a mentally ill person and a minor.

Under Section 14, every person who is not a minor

shall have the right to appoint a nominated

representative, whereas under Section 15, in case

of minors, the legal guardian shall be their

nominated representative unless the concerned

Board orders otherwise, if grounds are made out

under sub-section (2).

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40. Similarly, the Rights of Persons with

Disabilities Act, 2016 maintains the selfsame

distinction.  Sections 2(s), 4, 9, 18 and 31 of the

said Act read as under:

“2. Definitions. – In this Act, unless the context otherwise requires –

(a) to (r)  xxx      xxx xxx

(s) “person with disability” means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.”

“4. Women and children with disabilities – (1) The appropriate Government and the local authorities shall take measures to ensure that the women and children with disabilities enjoy their rights equally with others. (2) The appropriate Government and local authorities shall ensure that all children with disabilities shall have right on an equal basis to freely express their views on all matters affecting them and provide them appropriate support keeping in view their age and disability.” “9. Home and family – (1) No child with disability shall be separated from his or her parents on the ground of disability except on an order of competent court, if required, in the best interest of the child.

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(2) Where the parents are unable to take care of a child with disability, the competent court shall place such child with his or her near relations, and failing that within the community in a family setting or in exceptional cases in shelter home run by the appropriate Government or non-governmental organisation, as may be required.” “18. Adult education – The appropriate Government and the local authorities shall take measures to promote, protect and ensure participation of persons with disabilities in adult education and continuing education programmes equally with others.” “31. Free education for children with benchmark disabilities. – (1) Notwithstanding anything contained in the Rights of Children to Free and Compulsory Education Act, 2009, every child with benchmark disability between the age of six to eighteen years shall have the right to free education in a neighbourhood school, or in a special school, of his choice.

(2) The appropriate Government and local authorities shall ensure that every child with benchmark disability has access to free education in an appropriate environment till he attains the age of eighteen years.”

A perusal of the aforesaid Sections would

show that children with disabilities are dealt with

separately and differently from persons with

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disabilities.  Thus, Sections 4, 9 and 31 give certain

rights to children with disabilities as opposed to the

other provisions, in particular Section 18, which

speaks of adult education and participation thereof

by persons with disabilities, obviously referring to

persons who are physically above 18 years of age.

41. As a contrast to the 2012 Act with which we

are concerned, the National Trust for Welfare of

Persons with Autism, Cerebral Palsy, Mental

Retardation and Multiple Disabilities Act, 1999

would make it clear that whichever person is

affected by mental retardation, in the broader

sense, is a “person with disability” under the Act,

who gets protection.  The Statement of Objects and

Reasons of the said Act reads as under:

“STATEMENT OF OBJECTS AND REASONS

The Government of India has become increasingly concerned about the need for affirmative action in favour of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability.

2. In acknowledgement of a wide range of competencies among these individuals, the Central Government

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seeks to set up a National Trust to be known as a National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability. The said Trust will be promotive, proactive and protectionist in nature.  It will seek primarily to uphold the rights, promote the development and safeguard the interests of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability and their families.

3. Towards this goal, the National Trust will support programmes which promote independence, facilitating guardianship where necessary and address the concerns of those special persons who do not have their family support.  The Trust will seek to strengthen families and protect the interest of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability after the death of their parents.

4. The Trust will be empowered to receive grants, donations, benefactions, bequests and transfers.  The Central Government will make a one-time contribution of rupees one hundred crores to the corpus of the Trust to enable it to discharge its responsibilities.

5. The Bill seeks to achieve the aforesaid objectives.”

Relevant provisions of this Act are Sections

2(g), 2(j), 14(1) and 17(1), and the same are

reproduced as under:

163

“2. Definitions. – In this Act, unless the context otherwise requires

(a) to (f) xxx xxx xxx

(g) “mental retardation” means a condition of arrested or incomplete development of mind of a person which is specially characterised by subnormality of intelligence;

(h) & (i)   xxx xxx  xxx

(j) “persons with disability” means a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disability.” “14. Appointment for guardianship.—

(1) A parent of a person with disability or his relative may make an application to the local level committee for appointment of any person of his choice to act as a guardian of the persons with disability.” “17. Removal of guardian.—(1) Whenever a parent or a relative of a person with disability or a registered organisation finds that the guardian is—

(a) abusing or neglecting a person with disability; or

(b) misappropriating or neglecting the property,

it may in accordance with the prescribed procedure apply to the committee for the removal of such guardian.”

164

A reading of the Objects and Reasons of the

aforesaid Act together with the provisions contained

therein would show that whatever is the physical

age of the person affected, such person would be a

“person with disability” who would be governed by

the provisions of the said Act.  Conspicuous by its

absence is the reference to any age when it comes

to protecting persons with disabilities under the said

Act.

42. Thus, it is clear that viewed with the lens of

the legislator, we would be doing violence both to

the intent and the language of Parliament if we were

to read the word “mental” into Section 2(1)(d) of the

2012 Act.  Given the fact that it is a beneficial/penal

legislation, we as Judges can extend it only as far

as Parliament intended and no further.  I am in

agreement, therefore, with the judgment of my

learned brother, including the directions given by

him.

………………………J. (R.F. Nariman)

New Delhi; July 21, 2017.

Posted in Uncategorized

Whether the petition and the affidavit signed by the Advocate and not by the party is valid ?

Whether the petition and the affidavit signed by the Advocate and not by the party is valid ?

A.P. CIVIL RULES OF PRACTICE

CHAPTER-IV Affidavits

  1. (New) Interpretation of words:- The word ‘affidavit’ in this chapter shall include any document required to be sworn and the words ‘swear’ and sworn’; shall include ‘affirm’ and affirmed’
  2. (37) Form:- Every affidavit shall be drawn up in the first person and divided into paragraphs numbered consecutively and each paragraph as nearly as may b e, shall be confined to a district portion of the subject. Every affidavit shall be written or typed or printed and stitched book wise. The deponent shall sign at the foot of each page of the affidavit. Note:- For forms of Oath and affirmation refer the Scheduled to the Indian Oaths Act 1969.
  3. (38) Description of deponent:- Every affidavit shall be affidavit shall subscribe his full name, the name of his father age, place of residence and his trade or occupation.
  4. (New) Title of affidavits:- Every person making an affidavit shall subscribe his full name, the name of his father, his age, place of residence and his trade or occupation.
  5. (34) Before whom may be shorn:- Affidavits intended for use in Judicial proceedings may be sworn before any court or Magistrate or a “ Member of Nyaya Panchayat constituted under the A.P. Gram Panchayats Act, 1964, or a Sub-registrar, Nazir, or Deputy Nazir or a member of the State Legislature or a *Member of Parliament, or a Municipal Councilor or a Member of Zilla Parishad or any Gazetted officer in the service of the State Government or the Union Government or a Notary as defined in the Notaries Act, 1952, or a retired Gazetted Officer receiving pension from Government or a commissioned Military officer or a Advocate other than the Advocate who has been engaged in such proceeding or any Superintendent in the Office of the Commissioner for the Andhra Pradesh Hindu Religious institutions and charitable Endowments.
  6. (40) Statement of Officer before whom affidavit is sworn:- The officer before whom an affidavit is sworn or affirmed shall state the date on which, and the place where, the same is sworn or a affirmed and sign his name and description at the end as in Form No. 14 ; otherwise the same shall not be filed or read in any matter without the leave of the court.
  7. (39) Interlineations, alteration, etc:- No affidavit having in the Jurat or body there of any interlineations, alteration or erasure shall, without the leave of the court, be read or filed or made use, of unless the interlineations or alteration (other than by erasure) is authenticated by the initials of the officer taking the affidavit, nor in the case of an erasure unless the words or figures, appearing at the time of taking the affidavit to be written on the erasure, are rewritten and initialed in the margin of the affidavit by the officer taking it.
  8. Newly inserted An officer may refuse to take an affidavit where, in his opinion, the interlineations or alterations, or erasures are so numerous as to render in necessary that the affidavit should be rewritten.
  9. (New) Deponent to be identified:- Every person making an affidavit for use in the court shall if not personally known to the person before whom the affidavit is made, be identified by some one known to him, and the person before whom the affidavit is made shall state at the foot of the affidavits, the name, address, and description of the person by whom the identification was made
  10. (New) Identification of a Purdanashin woman deponent:- Where the deponent is purdanashin woman and has not appeared unveiled before whom the affidavit is made, she shall be identified by a person known to him and 9 such person shall the foot of the affidavit certify that the deponent was identified by him and shall sign his name giving his name and address.
  11. (41) Blind or illiterate deponent:- When an affidavit is sworn or a affirmed by any persons who appears to the officer taking the affidavit to be illiterate, blind, or unacquainted with the language in which the affidavit is written the officer shall certify that the affidavit was read, translated or explained in his presence to the deponent, and that the deponent seemed to understand it and made his signature or mark in the presence of the officer, as in Form No. 15 otherwise the affidavit shall not be used in evidence: Provided that where the deponent, due to physical deformity or any other cause, is unable to sign or affix his mark on the affidavit, such affidavit may be received in evidence, if the officer before whom the affidavit is subscribed certifies, that the contents of the affidavit were read over and explained to the deponent and admitted by him to be correct.
  12. (35) Filing:- Before any affidavit is used it shall be filed in court but the Judge may, with the consent of both parties, or in case of urgency, allow any affidavit to be presented to the court and read on the hearing of an application.
  13. (36) Notice of filing:- The Party filing an affidavit intended to be read in support of an application shall give not less than two days notice thereof to the other parties, who shall be entitled to inspect and obtain copies of the same, and to file counter-affidavits and shall give notice thereof to the applicant, who may inspect and obtain copies of the same; and file affidavits in reply but except with the leave of the court no further affidavit shall be filed or read. If any party fails to give notice of filing an affidavit the court may grant an adjournment of the hearing and order the party in default to pay the costs thereof.
  14. (42) Affidavits not to be filed without proper endorsement:- No affidavit shall be filed in the court unless properly endorse with the number and title of the suit or matter, the name of the deponent, the date on which it is sworn and by whom and on whose behalf it is filed.
  15. (New) Description of the person or place:- When in an affidavit any person is referred to, the correct name and address of such person and further description as may be sufficient for the purpose of the identification of such person, shall be given in the affidavit. When any place is referred to in an affidavit, it shall be correctly described.
  16. (44) Affidavit on information and belief:- Every affidavit containing statements made on the information or belief of the deponent shall state the source or ground of the information or belief.
  17. (43) Affidavit stating matter of opinion:- Every Affidavit stating any matter of opinion shall show the qualification of the deponent to express such opinion, by reference to the length of experience, acquaintance with the person or matter as to which the opinion is expressed, or other means of knowledge of the deponent.
  18. (New) Striking out scandalous matter:- The Court may suo motu, or on application order to be struck out from any affidavit any matter with which is scandalous and may order payment of costs of the application, if any filed for that purpose.
  19. (45) Documents referred to in affidavit:- Document referred to by affidavit shall be referred to as exhibits and shall be marked in the same manner as exhibits admitted by the court and shall bear the certificate in Form No. 16 which shall be signed by the officer before whom the affidavit is taken.
  20. (46) Cross examination on affidavit:- The Court may at any time direct that any person shall attend to the cross-examined on his affidavit.

10

CHAPTER V A-Interlocutory Proceedings;

B-Original Petitions; C-Transfer of Cases A-INTERLOCUTORY PROCEEDINGS

  1. (29) Form of Interlocutory Application:- Interlocutory applications shall be headed with the cause title of the plaint, original petition, or appeal, as in Form No. 13.
  2. (30) Contents of :- Except where otherwise provided by these rules or by any law for the time being in force, an Interlocutory Application shall state the provision of law under which it is made and the order prayed for or relief sought in clear and precise terms. The application shall be signed by the applicant or his Advocate, who shall enter the date on which such signature is made every application in contravention of this rule, shall be returned for amendment or rejected.
  3. (30) Contents of :- There shall be separate application in respect of each distinct relief prayed for. When several relief’s are combined in one application, the court may direct the applicant to confine the application only to one of such relief’s unless the relief’s are consequential and to file a separate application in respect of each of the others.
  4. (31) May rejected if substantive order is not asked for:- Every application which does not pray for a substantive order but prays merely, that any other application may be dismissed, and every application which prays for an order which ought to be applied for on the day fixed for the hearing of any suit, appeal or matter, may be rejected with costs.
  5. (New) Out of order petition:- Whenever it is intended to move the application as an urgent (out) of order) application, the copy of the application served on the Advocate or the party appearing ion person shall contain an urgent application on the day specified in the endorsement.
  6. (32) Service of Notice:-
  7. Unless the court otherwise orders, notice of an interlocutory application shall be given to the other parties to the suit or matter or their Advocate not less than three days before the day appointed for the hearing of the application.
  8. Such notice shall be served on the Advocate whenever the party appears by such Advocate.
  9. Notice of the application may be served on a party not appearing by Advocate by registered post “ACKNOWLEDGEMENT DUE, OR BY SPEED POST OR BY AN APPROVED COURIER SERVICE OR BY FAX MASSAGE OR BY ELECTRONIC MALE SERVICE OR BY SUCH MEANS” to the address given in the pleading acknowledgement per-paid and in the event of its non- service on the party by means of summons to be delivered to the party or in the event of the party being absent or refusing to receive the same, affixture at his address.
  10. Unless the court, otherwise orders, notice of Interlocutory application need not be given to a party, who having been served with the notice in the main suit, appeal or other proceedings, has not entered appearance or to a party to whom notice in the appeal has been dispensed with under the provisions of Rule 14 of Order XLI of the Code
  11. 59. (New) Copies to opposite party:- Every interlocutory application shall be supported by an affidavitand true copies of the application, affidavit and the documents, if any which the applicant intends to use or on which he intends to rely, shall be furnished to the opposite party or his advocate, unless otherwise ordered, not less than three clear days before the hearing date.
  12. (33) Proof of facts by affidavit:-Any fact required to be proved upon an interlocutory proceeding shallunless otherwise provided by these, rules, or ordered by the court, be provided by affidavit but the Judge may, in any case, direct evidence to be given orally, and thereupon the

11

evidence shall be recorded, and exhibits marked, in the same manner as in a suit and lists of the witnesses and exhibits shall be prepared and annexed to the judgment.

Or.19 – Affidavits

Power to order any point to be proved by affidavit

Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable :

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

  1. Power to order attendance of deponent for cross-examination

(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.

(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.

  1. Matters to which affidavits shall be confined

(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted : Provided that the grounds thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same.

List Judgments citing this section  Download as PDF

 AIR 1985 Ori 108

  1. ii) Whether the petition under Order 9, Rule 9 of the Code was presented according to law, and
  2. The second point is technical in nature.The petition under Order 9, Rule 9 of the Code was not signed bv the petitioner, but by her son Debi Prasad, who appended a verification thereto stating that he was looking after the suit on behalf of his mother.
  3. The petition under Order 9, Rule 9 was signed by the petitioner’s Advocate Mr. B. Das. Mr. L. Rath, learned counsel appearing for the petitioner, contended that in the facts and circumstances of the case the petition signed by the petitioner’s Advocate Mr. B. Das was presented in Court according to law. There being no technical defect as pointed out by the Courts below, the petition for restoration could not be thrown out on the ground of mere technicality. If there be any defect in presentation of the petition, it was a mere irregularity, but not totally illegal.

According to Order 4, Rule 1, a suit is instituted by presenting a plaint to the Court. Every plaint shall comply with the rules contained in Orders 6 and 7. According to Order 6, Rule 14, a plaint is required to be signed by the party and his pleader. There is no such equivalent provision in Order 9, Rule 9. In other words, a petition for restoration under Order 9, Rule 9 is not required to be signed by the petitioner. It is also not required to be verified by the party as a plaint is required to be verified under Order 6, Rule 15.

According to Order 3, Rule 4 of the Code, no pleader shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment. In this case as already referred to above the petitioner appointed Mr. B. Das, Advocate of Aska to act on her behalf in the suit and proceedings arising therefrom within the meaning of Order 3. Rule 4. In accordance with such authority, Mr. B. Das acted in the proceeding by signing and presenting the petition for restoration. He did so for the benefit of and in order to protect the interest of the petitioner. No objection could be taken to such a petition for presentation of which the petitioner had implied consent. The aforesaid view is supported by authorities. In a Full Bench decision reported in AIR 1968 Ker 213, Chengan Souri Nayakam v. A. N. Menon, it was held that an Advocate in India has inherent authority to enter into a compromise on behalf of his client and the compromise so entered into would be binding on him. The implied authority is an actual authority and not an appendage to his office or dignity added by the Court to the status of the Advocate. Therefore, even though the vakalatnama did not expressly authorise a counsel to compromise the suit or confess judgment, if the Court was satisfied that there was no express prohibition in doing so, it had to assume that counsel had implied authority to compromise an action or confess judgment. This was the view taken in an extreme case. An identical view appears to have been taken is two decisions of the Supreme Court reported in AIR 1975 SC 1632, Employers in relation to Monoharbahal Colliery Calcutta v. K. N. Mishra and AIR 1975 SC 2202, Smt. Jamilabai Abdul Kadar v. Shankarlal Gulabchand. If by virtue of a vakalatnama without having any special authority an Advocate could compromise a cause and admit the same in Court on behalf of the party he represents, I see no reason why an Advocate in whose favour a vakalatnama has been duly executed in accordance with rules prescribed by the High Court cannot act and present a petition under Order 9, Rule 9 of the Code duly signed by him on behalf of the party he represents.

  1. In view of the above and in disagreement with the Courts below, I hold that Mr. B. Das. Advocate for the petitioner was authorised to act on her behalf in the suit and the proceedings arising therefrom. Therefore, the petition under Order 9, Rule 9 signed and presented by him cannot be said as being not in accordance with law.
Posted in Uncategorized

“mental cruelty”= as admittedly both lived together till 2006 and the appellant gave birth to their second daughter in 2006. Third, most of the incidents of alleged cruelty pertained to the period prior to 2006 and some were alleged to have occurred after 2006. Those pertained to period after 2006 were founded on general allegations with no details pleaded such as when such incident occurred (year, month, date etc.), what was its background, who witnessed, what the appellant actually said etc.- In our view, the incidents which occurred prior to 2006 could not be relied on to prove the instances of cruelty because they were deemed to have been condoned by the acts of the parties. So far as the instances alleged after 2006 were concerned, they being isolated instances, did not constitute an act of cruelty. A petition seeking divorce on some isolated incidents alleged to have occurred 8-10 years prior to filing of the date of petition cannot furnish a subsisting cause of action to seek divorce after 10 years or so of occurrence of such incidents. The incidents alleged should be of recurring nature or continuing one and they should be in near proximity with the filing of the petition. Few isolated incidents of long past and that too found to have been condoned due to compromising behavior of the parties cannot constitute an act of cruelty within the meaning of Section 13 (1)(ia)of the Act.

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.7114-7115 OF 2014

 

Suman Singh ….Appellant(s)

VERSUS

Sanjay Singh …Respondent(s)

 

J U D G M E N T
Abhay Manohar Sapre, J.
1) These appeals are filed by the appellant (wife) against the final
judgment and order dated 23.05.2013 passed by the High Court of Delhi at
New Delhi in F.A.O. No.108 of 2013 and F.A.O. No.109 of 2013 by which the
High Court dismissed the appeals filed by the appellant and confirmed the
judgment dated 14.12.2010 of the Principal Judge, Family Courts, Rohini
which had granted decree for dissolution of marriage in favour of the
respondent (husband) and, in consequence, also affirmed the order
dismissing the petition filed by the appellant (wife) for restitution of
conjugal rights.
2) Facts, in brief, to appreciate the controversy involved in the
appeals need mention infra.
3) The marriage between the appellant and the respondent was solemnized
on 26.02.1999 at Delhi as per the Hindu rites. The respondent-husband is
working as “Caretaker” in the Government of NCT of Delhi whereas the
appellant is a housewife. Out of this wedlock, one daughter was born on
15.06.2002 and the second daughter was born on 10.02.2006. Both daughters
are living with the appellant.
4) On 11.07.2010, the respondent (husband) filed a petition for
dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955
(hereinafter referred to as “The Act”) in the Family Courts, Rohini, Delhi
against the appellant (wife). The respondent sought decree for dissolution
of marriage essentially on the ground of “cruelty”.
5) In substance, the respondent, in his petition, pleaded 9 instances
which, according to him, constituted “cruelty” within the meaning of
Section 13(1)(i-a) of the Act entitling him to claim dissolution of
marriage against the appellant.
6) The first ground of cruelty was related to wife’s behavior on the
next day of marriage, i.e., 27.02.1999. It was alleged that the appellant
came out of the bedroom in night dress and that too late when the close
relatives of the respondent were sitting in the house. It was alleged that
she did not pay respect and wishes to the elders. (Para 9 of the plaint)
7) The second ground of cruelty was again about the appellant’s behavior
with the respondent on the eve of New Year. However, the year was not
mentioned. According to the respondent, he agreed to celebrate the new
year with the appellant on her parental house as the parents of the
appellant gave repeated calls. After reaching her parental house, most of
the time the appellant was busy with her family members and left him alone
in the drawing room. Even at the time of dinner, the family members of the
appellant did not behave properly. (Para 10).
8) The third ground of cruelty was that the appellant did not show any
inclination or enthusiasm to attend any important family function or
festivals at the respondent’s house whenever held. However, no details were
given about the date and the function held. The allegations are general in
nature (Para 11).
9) The fourth ground of cruelty was again about the indecent behavior of
the appellant towards the respondent’s family members. However, no details
were pleaded except making general averments (Para 12).
10) The fifth ground of cruelty was in relation to an incident which,
according to the respondent, occurred in July 1999. It was alleged that the
appellant, on that day, insisted that the couple should live separately
from the respondent’s parents (Para 13).
11) The sixth ground of cruelty was again general with no details. It was
alleged that the appellant was not interested in doing any household work
nor was interested in preparing meals and used to insist the respondent to
have his lunch from outside. (Para 14).
12) The seventh ground of cruelty was in relation to one incident which,
according to the respondent, occurred on Diwali day in the year 2000. It
was again about the behavior of the appellant with the family members of
the respondent which, according to the respondent, was rude (Para 16).
13) The eighth ground of cruelty was in relation to one isolated incident
which, according to the respondent, occurred on 15.04.2001. It was again
about the behavior of the appellant with the friends of the respondent who
had come to the respondent’s house. According to the respondent, the family
members did not like it (Para 17).
14) The ninth ground of cruelty was that one day in year 2010, the
appellant visited the respondent’s office and misbehaved with the
respondent in the presence of other officials (Para 27).
15) The respondent also alleged some instances in the petition. They,
however, again essentially relate to the appellant’s behaviour with the
respondent and his family members.
16) The appellant filed her written statement and denied these
allegations. The appellant also applied for restitution of conjugal rights
against the respondent in the same proceedings by filing petition under
Section 9 of the Act and inter alia alleged in her petition that it was the
respondent who has withdrawn from her company without there being a
reasonable cause. She also while denying the case set up by the respondent
justified her case for restitution of conjugal rights.
17) The Trial Court framed the following issues on the basis of pleadings
in the case:
Whether after solemnization of marriage, the Respondent has
treated the Petitioner with cruelty? OPP
Whether the Petitioner is entitled to the decree of
divorce as prayed? OPP
3. Relief

The following issues were framed based on the pleadings in the petition
under Section 9 of the Act:

Whether the Petitioner is entitled to the restitution of conjugal rights as
prayed? OPP
Relief

18) Parties adduced the evidence. By order dated 14.12.2012, the Family
Court allowed the petition filed by the respondent. It was held that the
grounds alleged by the respondent amounted to mental cruelty within the
meaning of Section 13(1)(ia) of the Act and the same having been proved by
the respondent, he was entitled to claim a decree for dissolution of
marriage against the appellant. Accordingly, the Trial Court granted decree
for dissolution of marriage in favour of the respondent and dissolved the
marriage. Since the decree for dissolution of marriage was passed against
the appellant, the petition filed by the appellant against the respondent
seeking restitution of conjugal rights was dismissed.
19) The appellant, felt aggrieved by the aforesaid order, filed first
appeals before the High Court. In appeals, the question was whether the
Trial Court was justified in granting decree for dissolution of marriage to
the respondent (husband) and, in consequence, was justified in dismissing
the petition for restitution of conjugal rights filed by the appellant
(wife).
20) By impugned judgment, the High Court dismissed the appeals and
affirmed the judgment/decree of the Trial Court. The appellant (wife), felt
aggrieved, has filed these appeals by special leave against the judgment of
the High Court.
21) Heard Mr. D.N. Goburdhan, learned counsel for the appellant and Mr.
Gaurav Goel, learned counsel for the respondent.
22) Having heard the learned counsel for the parties and on perusal of
the record of the case, we are inclined to allow the appeals and while
setting aside the impugned order, dismiss the divorce petition filed by the
respondent(husband) against the appellant and, in consequence, allow the
petition filed by the appellant(wife) for restitution of conjugal rights
against the respondent (husband).
23) The word “cruelty” used in Section 13(1)(ia) of the Act is not
defined under the Act. However, this expression was the subject matter of
interpretation in several cases of this Court. What amounts to “mental
cruelty” was succinctly explained by this Court (three Judge Bench) in
Samar Ghosh vs. Jaya Ghosh [(2007) 4 SCC 511]. Their Lordships speaking
through Justice Dalveer Bhandari observed that no uniform standard can ever
be laid down for guidance, yet it is appropriate to enumerate some
instances of human behavior which may be considered relevant in dealing
with the cases of “mental cruelty”.
24) Their Lordships then broadly enumerated 16 category of cases which
are considered relevant while examining the question as to whether the
facts alleged and proved constitute “mental cruelty” so as to attract the
provisions of Section 13 (1) (ia) of the Act for granting decree of
divorce.
25) Keeping in view the law laid down in Samar Ghosh’s case (supra), when
we examine the grounds taken by the respondent in his petition for proving
the mental cruelty for grant of divorce against the appellant, we find that
none of the grounds satisfies either individually or collectively the test
laid down in Samar Ghosh’s case (supra) so as to entitle the respondent to
claim a decree of divorce.
26) This we hold for more than one reason. First, almost all the grounds
taken by the respondent in his petition were stale or/and isolated and did
not subsist to enable the respondent to seek a decree for dissolution of
marriage. In other words, the incidents of cruelty alleged had taken place
even, according to the respondent, immediately after marriage. They were
solitary incidents relating to the behavior of the appellant. Second,
assuming that one or more grounds constituted an act of cruelty, yet we
find that the acts complained of were condoned by the parties due to their
subsequent conduct inasmuch as admittedly both lived together till 2006 and
the appellant gave birth to their second daughter in 2006. Third, most of
the incidents of alleged cruelty pertained to the period prior to 2006 and
some were alleged to have occurred after 2006. Those pertained to period
after 2006 were founded on general allegations with no details pleaded such
as when such incident occurred (year, month, date etc.), what was its
background, who witnessed, what the appellant actually said etc.
27) In our view, the incidents which occurred prior to 2006 could not be
relied on to prove the instances of cruelty because they were deemed to
have been condoned by the acts of the parties. So far as the instances
alleged after 2006 were concerned, they being isolated instances, did not
constitute an act of cruelty.
28) A petition seeking divorce on some isolated incidents alleged to have
occurred 8-10 years prior to filing of the date of petition cannot furnish
a subsisting cause of action to seek divorce after 10 years or so of
occurrence of such incidents. The incidents alleged should be of recurring
nature or continuing one and they should be in near proximity with the
filing of the petition.
29) Few isolated incidents of long past and that too found to have been
condoned due to compromising behavior of the parties cannot constitute an
act of cruelty within the meaning of Section 13 (1)(ia)of the Act.
30) In our considered opinion, both the Courts below failed to take note
of this material aspect of the case and thus committed jurisdictional error
in passing a decree for dissolution of marriage.
31) We cannot, therefore, countenance the approach of the High Court
because it did not, in the first instance, examine the grounds taken in the
petition to find out as to whether such grounds constitute mental cruelty
or not? The finding, therefore, though concurrent does not bind this
Court.
32) We are not impressed by the submission of the learned counsel for the
respondent that an incident which occurred somewhere in 2010 when the
appellant visited the office of the respondent and alleged to have
misbehaved with the respondent in front of other officers would constitute
an act of cruelty on the part of the appellant so as to enable the
respondent to claim divorce. In the first place, no decree for divorce on
one isolated incident can be passed. Secondly, there could be myriad
reasons for causing such isolated incident. Merely because both exchanged
some verbal conversation in presence of others would not be enough to
constitute an act of cruelty unless it is further supported by some
incidents of alike nature. It was not so.
33) We are also not impressed by the submission of the learned counsel
for the respondent that since the appellant had made allegation against the
respondent of his having extra-marital relation and hence such allegation
would also constitute an act of cruelty on the part of the appellant
entitling the respondent to claim decree for dissolution of marriage.
34) Similarly, we are also not impressed by the submission of learned
counsel for the respondent that since both have been living separately for
quite some time and hence this may be considered a good ground to give
divorce.
35) In the first place, the respondent did not seek a decree of
dissolution of marriage on these grounds. Second, the grounds of cruelty
taken by the respondent in his petition does not include these grounds.
Third, even if some stray allegations were made by the wife in her
pleading/evidence as were relied upon by the learned counsel are of no
relevance because, as mentioned above, these ground were not pleaded in the
petition by the respondent for seeking a decree of divorce and nor were put
in issue; and lastly, the burden being on the respondent, the same could be
discharged by the respondent by pleading and then proving. It was not so
done. It is for these reasons, we cannot accept the aforementioned two
submissions for affirming the decree of divorce.
36) This takes us to the next question as to whether the appellant was
able to make out any case for restitution of conjugal rights against the
respondent.
37) Having perused her petition and evidence, we are of the view that the
appellant is entitled for a decree for restitution of conjugal rights
against the respondent.
38) In our considered view, as it appears to us from perusal of the
evidence that it is the respondent who withdrew from the appellant’s
company without there being any reasonable cause to do so. Now that we have
held on facts that the respondent failed to make out any case of cruelty
against the appellant, it is clear to us that it was the respondent who
withdrew from the company of the appellant without reasonable cause and not
the vice versa.
39) In view of foregoing discussion, the appeals succeed and are allowed.
The impugned judgment is set aside. As a result, the petition filed by the
respondent (husband) under Section 13(1) of the Act seeking dissolution of
marriage is dismissed. As a consequence thereof, the marriage between the
parties is held to subsist whereas the petition filed by the appellant
against the respondent under Section 9 of the Act seeking restitution of
conjugal right is allowed. A decree for restitution of conjugal right is,
accordingly, passed against the respondent.
40) We hope and trust that the parties would now realize their duties and
obligations against each other as also would realize their joint
obligations as mother and father towards their grown up daughters. Both
should, therefore, give quite burial to their past deeds/acts and bitter
experiences and start living together and see that their daughters are well
settled in their respective lives. Such reunion, we feel, would be in the
interest of all family members in the long run and will bring peace,
harmony and happiness. We find that the respondent is working as a
“Caretaker” in the Government Department (see Para 4 of his petition). He
must, therefore, be the “Caretaker” of his own family that being his first
obligation and at the same time attend to his Government duties to maintain
his family.

 

……………………………………..J.
[R.K. AGRAWAL]

 

….………………………………….J.
[ABHAY MANOHAR SAPRE]
New Delhi;
March 08, 2017
———————–
18

 

 

Posted in Uncategorized

declare the action of the respondents, in compelling Cable T.V. subscribers to purchase set top boxes (STB for short) and in threatening cable operators not to carry on the existing analog form of transmission with effect from the dates mentioned in the notification, as unlawful and in violation of Articles 14, 19 and 21 of the Constitution of India; and to consequently direct the respondents not to stop transmission of T.V. channel signals in analog form, and to implement the digital addressable system transmission along with analog form.= Viewed from any angle, the impugned notice issued by the Government of India dated 22.12.2016, prohibiting transmission of signals in an analog form in phase III areas beyond the sunset date of 31.01.2017, does not fall foul of Section 4-A(1) of the 1995 Act as amended by Act 21 of 2011.

2017 AP HIGH COURT – http://judis.nic.in/Judis_Andhra/list_new2.asp?FileName=14107

HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN AND HONBLEDr. JUSTICE SHAMEEM AKTHER

WP.PIL 6 OF 2017

01-06-2017

Citizens Welfare Society.Petitioner

Union of India, rep., by its Secretary, Ministry of Information and Broadcasting, Shastry Bhavan, New Delhi and two others

Counsel for the petitioner:Sri C. Ramachandra Raju

Counsel for respondents: Sri B. Narayana Reddy, learned Assistant Solicitor General, Sri S. Niranjan Reddy, learned Senior C

<GIST:

> HEAD NOTE:

? Citations:

1) (2012) 3 SCC 1
2) (Order in Writ Petition Civil No.170 of 2013 dated 12.04.2013)
3) (Judgment in PIL Nos.140 of 2013 and batch dated 02.08.2013)
4) (1987) 3 SCC 279
5) (2009) 8 SCC 431 : (2009) 2 SCC (L&S) 441
6) (1981) 4 SCC 173
7) (1988) 1 SCC 507
8) (1988) 2 SCC 299
9) (2001) 4 SCC 534
10) (1997) 8 SCC 522
11) (1985) 1 SCC 1
12) (2003) 1 SCC 692
13) AIR 1952 SC 369
14) (1964) 1 SCR 371 : AIR 1963 SC 1241
15) (1954) SCR 587
16) (1955) 2 SCR 374
17) (1955) 2 SCR 1196
18) AIR 1957 SC 832
19) AIR 1962 SC 1781 : (1963) 1 Cri LJ 1
20) AIR 1960 SC 12
21) (1826) 162 ER 456
22) JT 2001 (1) SC 536
23) (1569) 1 Plowd 353
24) (1957) 1 All ER 49
25) (2008) 4 SCC 300
26) (2001) 3 SCC 537
27) (1996) 1 SCC 642
28) (2008) 3 SCC 279
29) (2008) 5 SCC 257
30) (2008) 7 SCC 502
31) (2008) 8 SCC 505
32) (2009) 16 SCC 569
33) AIR 1991 SC855
34) (1985) 2 All.ER 355
35) (1998) 3 SCC 309
36) (2002) 6 SCC 269
37) 2004 (7) SCALE 158
38) (2005) 2 SCC 271
39) (1985) 1 SCC 591
40) (1973) 1 SCC 216
41) (2007) EWHC 3134 (Ch)
42) (1973) AC 854
43) (2004) 1 SCC 702
44) (2001) 7 SCC 358
45) (2007) 6 SCC 81
46) (1955) 2 SCR 603
47) (1996) 4 SCC 76
48) AIR 2001 SC 2603
49) (1898) AC 571, 576(HL)
50) (1898) 2 Ch. 28 (CA)
51) (1989) 1 SCC 760
52) AIR 2004 SC 1426 = (2004) 1 SCC 755
53) (2003) 4 SCC 305
54) (1999) 9 SCC 700 = AIR 1999 SC 1867
55) AIR 1956 SC 35 = (1955) 2 SCR 842
56) (2001) 5 SCC 175 = AIR 2001 SC 1832
57) AIR 1981 SC 711
58) (1988) 2 SCC 351
59) (Order in W.P NOs.31138 AND 31974 OF 2012, dated 31-12-2014)
60) (1961) 2 SCR 679 at page 702: (AIR 1961 SC 751

 

THE HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN
AND
THE HONBLE DR JUSTICE SHAMEEM AKTHER

WRIT PETITION (PIL) NO.6 OF 2017

ORDER: {Per the Honble the Acting Chief Justice Ramesh Ranganathan}
This Writ Petition is filed in public interest by the Citizens
Welfare Society, Durgabai Deshmukh Colony, Bagh Amberpet,
Hyderabad, represented by its General Secretary, to declare the
action of the respondents, in compelling Cable T.V. subscribers to
purchase set top boxes (STB for short) and in threatening cable
operators not to carry on the existing analog form of transmission
with effect from the dates mentioned in the notification, as
unlawful and in violation of Articles 14, 19 and 21 of the
Constitution of India; and to consequently direct the respondents
not to stop transmission of T.V. channel signals in analog form,
and to implement the digital addressable system transmission
along with analog form.
Facts, to the extent necessary, are that hitherto broadcasters
of TV channels were transmitting their programmes in analog form
i.e. a natural form of signals; subsequently, an artificial mode of
transmission of TV signals called the digital addressable system
(DAS for short) was introduced; under the DAS method, signals
of T.V. channels are transmitted in an encrypted form (defaced
form) which is then decrypted by the STB attached to the T.V. sets
at the subscribers residence since the signals, transmitted through
DAS, cannot be received directly by the Television sets. While
transmission of signals in an analog form does not require an STB,
signals transmitted through DAS require an STB for the signals to
reach the T.V. sets. STB is required only by those subscribers
with cable connections who seek to view a larger number of
channels under DAS. A set top box is not required for cable
subscribers who are satisfied with the limited number of T.V.
channels made available to them by local cable T.V. operators
through the analog form of signals. The object of DAS is to
facilitate transmission of a larger number of channels, within a
lesser band width, to overcome the shortcomings in the analog
form of signals. Parliament introduced DAS which enables
subscribers to receive hundreds of T.V. channels unlike in the
analog form. The Cable Television Networks (Regulation) Act, 1995
(the 1995 Act for short), was amended by Act 21 of 2011 with
effect from 25.10.2011. The Central Government issued notification
dated 11.11.2011 directing all cable operators to introduce DAS
within a specified time frame, which period was extended from time
to time. Under Phase-III, the time limit was extended upto
31.01.2017 and, under Phase-IV upto 31.03.2017.
It is the case of the petitioner that, consequent on
amendment of Section 4A of the 1995 Act, every cable operator is
obligated to adopt the DAS method along with the existing
transmission system in an analog form; while maintaining
transmission through DAS is obligatory, Section 4-A of the 1995
Act does not disable Cable T.V. Operators from transmitting signals
in an analog form, in addition to transmission of signals through
DAS; this amendment of Section 4-A is intended to facilitate both
analog and DAS subscribers; while the areas, within the limits of
the Hyderabad Municipal Corporation, fall under Phase-II, the
areas located beyond the erstwhile Hyderabad Municipal
Corporation limits, but which are now brought within the limits of
the Greater Hyderabad Municipal Corporation, fall under Phase-III;
while matters stood thus, a notice was issued by the first
respondent on 22.12.2016 informing all Chief Secretaries that, on
account of the on going Court proceedings, it was decided that
broadcasters, Multi-System Operators (MSOs for short), Local
Cable Operators (LSOs for short) would be allowed further time
upto 31.01.2017, after which no analog signal shall be carried in
Phase-III areas, and no further extension shall be given. It is this
notice dated 22.12.2016 which is subjected to challenge in this
Writ Petition.
When the matter came up before us on 24.01.2017, Sri B.
Narayana Reddy, Learned Assistant Solicitor General, sought time
to obtain instructions. When the matter was listed thereafter on
31.01.2017, a counter-affidavit was filed by the Under Secretary,
Ministry of Information & Broadcasting, Government of India, New
Delhi, on behalf of the first respondent. In the said counter
affidavit, it is stated that, in the exercise of the powers conferred
under Section 4-A of the 1995 Act as amended by the 2011 Act, the
Central Government issued gazette notification dated 11.11.2011
notifying that it is obligatory for every cable operator to transmit or
re-transmit programmes of any channel in an encrypted form
through DAS in such city, town or area as specified in the said
notification with effect from the dates mentioned in the
notification; the time schedule, to implement DAS across the
country in a phased manner, was modified from time to time in
public interest; due to Court cases, the time period to switch over
to DAS in Phase-III areas was extended till 31.01.2017, and the cut
off date for Phase IV was extended till 31.03.2017; the validity of
the notification dated 11.09.2014, whereby the cut-off date for
Phase-III of Cable TV digitalisation was fixed as 31.12.2015 and
that of Phase-IV was fixed as 31.12.2016, was challenged before
different High Courts by some associations of MSOs, Associations
of Cable Operators, companies and individuals engaged in the
business of providing Cable TV network; the relief sought for was
to declare the notification dated 11.09.2014 as unenforceable and
prejudicial to pubic interest, to direct the Union of India to
maintain status quo regarding switch over from the existing analog
system of Cable TV Transmission to DAS until full implementation
of DAS which was subject to availability of STBs for all existing
consumers of Cable TV services, extension of the cut off date
stipulated in the notification dated 11.09.2014 for implementation
of DAS in Phase-III areas till sufficient STBs were made available in
the local market, not to take any coercive measures against the
petitioners for non-compliance of the notification dated
11.09.2014, and to declare that the respondents are bound to
ensure availability of STBs in the local market before enforcing
DAS. It is further stated that, in view of multiple Writ Petitions
being filed before various High Courts involving similar legal
questions, and as different orders were being passed by various
Courts staying the sunset date of implementation of Phase-III of
DAS, a Transfer Petition was filed before the Supreme Court by the
Union of India seeking transfer, of all the Writ Petitions pending
before different High Courts, either to the Supreme Court or to the
Delhi High Court; the said Transfer Petition was allowed by the
Supreme Court by its order dated 01.04.2016 withdrawing all
cases pending before different High Courts, and transferring them
to the Delhi High Court; the Supreme Court further observed that,
in future, if any case on the same legal question was filed before
the High Courts, such cases should also be transferred to the Delhi
High Court; accordingly, all the Writ Petitions were transferred to
the Delhi High Court for further hearing; all these cases, except
three, have been subsequently disposed of by the Delhi High Court;
and even in the pending cases, no interim orders are subsisting,
and the cases are listed for hearing.
On the merits of the petitioners claim, it is stated in the
counter-affidavit that the decision to implement the new telecast
system i.e. DAS is a policy decision taken by the Government of
India on the basis of the recommendations of the Telecom
Regulatory Authority of India (TRAI for short), which is an expert
body; all the stakeholders are duly consulted by TRAI; policy
decisions are the outcome of deliberations of technical experts in
the field; Courts are not well-equipped in these areas, and would
leave such matters to the discretion of the executive; and it is only
if the policy decision is contrary to any statutory provision or is
discriminatory/arbitrary or is based on irrelevant considerations
would interference be justified. Reliance is placed on Centre for
Public Interest Litigation v. Union of India in this regard.
The counter affidavit then proceeds to highlight the
drawbacks in the existing regime of analog cable television. It is the
case of the Union of India that analog cable television was afflicted
with inherent drawbacks; as against the existing 800 permitted
satellite TV channels, the analog system is able to carry only 70 to
80 channels; this severely restricts the subscribers choice, and
denies them a large canvas of channels available in the
broadcasting universe; the limited carrying capacity of the analog
system brings about a distortion in the business of television
distribution, as the broadcaster is forced to incentivise cable
operators to carry their channels by paying a huge amount of
carriage fee or placement fee etc; analog cable does not have the
technological features of facilitating a-la-carte (individual) selection
of channels; this compels the customer to go in for the bouquet of
channels devised by the cable operator on his own accord,
restricting the say of customers in the selection of channels; the
analog regime is not customer friendly; the analog services lack
transparency as subscribers base is not accurately maintained and
reported; this has led to under reporting of subscription revenue,
and the consequent concealment of tax revenues; a limited carrying
capacities and lack of transparency distorts the business model for
the broadcasters; increases their dependence on advertisement
revenues, and restricts the scope for subscription revenues (65:35);
for higher TRP ratings, the channels often sensationalize content
on television; the quality of picture on analog cable depends on
whether a channel is carried in the Prime Band or in the non-
Prime Band; Prime Band can only accommodate a few channels;
cable operators are facing severe competition from Direct to Home
(DTH) and Internet Protocol Television (IPTV) services which are in
a position to provide high quality content and value added services;
unless the cable service providers upgrade their services, they will
lose their business to new platforms; and an effective Consumer
Grievance Redressal Mechanism does not exist.
On the need for reform, the counter affidavit states that the
drawbacks in the existing analog regime necessitated a transparent
system being ushered in to cater to the interests of the consumers;
this reform is what DAS aims at; addressability means that the
signals of cable operators will be encrypted and can only be
received through an STB after due authorization from the service
provider; this would enable identification and maintenance of a
data base for each subscriber; and this would also bring in
transparency and prevent piracy while also enabling better revenue
realisation.
The counter affidavit details the key advantages of DAS to
various stakeholders. The consumers would be empowered to
exercise a-la-carte selection to allow individual channel selection; it
would make available improved quality of content, and access to
various value added and interactive services like Electronic
Programme Guide, Movie-on-Demand, Video-on-Demand, Personal
Video recorders enabling recording and viewing at convenience,
Gaming and enhanced viewing experience; this would enable cable
operators to compete effectively with DTH services; transparency in
subscriber base would result in realistic generation of subscription
revenue, and address the issues of tax evasion; in the digitalisation
of Cable TV, it is mandatory for every MSO and his cable operator
to have a grievance redressal mechanism wherein a toll free
number, web based system for logging and tracking the status of
complaints, and notification of nodal officers are mandated; no
such system existed in the analog regime; complaints can thus be
addressed effectively in the digital system; a time line for redressal
of grievances of consumers in a time-bound fashion has been
specified by TRAI; and Broadband penetration in India will also
increase through digitalisation of cable TV services, as Broadband
can also be provided to consumers by MSOs/LCOs, on the
digitalisation of the digital Cable Network, after obtaining the
requisite license from the concerned authorities. Reliance is placed
on the judgment of the Supreme Court in Lalit Kumar v. Union of
India to contend that the decision to implement DAS, and phasing
out the traditional analog regime, are policy decisions taken by the
Central Government after consulting all stakeholders and by
following due process.
Reference is thereafter made, in the counter-affidavit, to
several cases filed challenging Phase-II of cable TV digitalisation,
and it is stated that Phase-I of digitalisation was completed by
31.10.2012 and, out of the four metro cities planned to be
digitalised, digitalisation has been completed in Delhi, Mumbai
and Kolkata; it could not be completed in Chennai because of a few
pending Court cases; Phase-II was concluded by 31.03.2013 in 38
cities spanning across 14 States and one Union Territory; and, out
of the 38 cities, the switch over is complete in all cities except in
Coimbatore because of pending Court cases.
The counter affidavit then details the initiatives taken by the
Ministry for implementation of Phase-III and Phase-IV of Cable TV
digitalisation, and refers to a Task Force having been constituted
comprising representatives from various stakeholders including
TRAI, Broadcasters, MSOs, LCOs, Nodal Officers from the States,
consumer organizations, STBs manufacturers and DTH Operators
etc., to oversee and monitor the digitalisation process in Phase-III.
Reference is also made to the publicity campaign initiated in
electronic, print and social media, and by SMS, to apprise
consumers of the benefits of digitalisation, and about the cut-off
date; all the State/UT Governments were requested to nominate
State Level and District Level Nodal Officers; and four workshops of
State Level Nodal Officers were held in different cities.
The counter affidavit, thereafter, states that sufficient time
was allowed for digitalisation of Phase-III; the estimated
requirement for Phase-III areas, as per the seeding date provided by
the registered MSOs, DTH and HITS Operators, have been fully
met; the revenues of the State Governments has increased; cable
TV digitalisation has brought in greater transparency;
entertainment tax collection from eleven states indicate that ET
collection increased from Rs.184 crores in 2012-13 to Rs.448
crores in 2015-16; there are reports of security threats due to TV
contents which can incite communal and terrorist violence; this is
because of carriage of unapproved Satellite Channels by MSOs and
LCOs; in the digital system all channels are encrypted before
transmission on to the cable network; the encryption is carried out
by MSOs, and the LCOs cannot insert any channel; it is practically
impossible to transmit unapproved channels on the cable network
in the digital system; the inter-connect agreements have been
finalised by giving sufficient time to all stakeholders to be prepared
for digitalisation, and any postponement at this juncture or
allowing the petitioner to continue transmitting analog signals
would derail the whole exercise, and defeat the very purpose of
Mission Digitalisation; the cut-off date of digitalisation cannot be
deferred as it may dampen the momentum built so far; this would
also severely affect the overall growth of the sector, and would be
against the public interest at large; it would also dis-incentivise the
stakeholders who have invested a huge sum of capital for diligently
implementing the digitisation programme of the Government; and
it is for this reason that the Delhi High Court had dismissed all the
Writ Petitions.
The counter affidavit further states that, in view of the
recommendations of TRAI, the Union Cabinet, in its meeting held
on 13.10.2010, approved the Ministrys proposal for mandatory
introduction of DAS in the cable TV services which, inter alia,
covers a time-frame and a road map for implementation of
digitalisation with addressability on a pan India basis in cable TV
services leading to a complete switch off of analog TV services by
31.12.2014; the Cabinet also approved certain amendments to the
1995 Act by the 2011 Amendment Act; the encrypted signal can
only be received through a Set Top Box (STB) after due
authorization from the service provider; this would enable
identification and maintenance of a data base for each subscriber,
bring in transparency, and prevent piracy, while enabling better
revenue realisation; therefore, the set top boxes are essential for
digitisation of Cable TV services; DAS is being implemented as per
the amended provisions of the 1995 Act; the decision to implement
DAS is a policy decision taken by the Government of India on the
recommendations of TRAI which is an expert body; all the
stakeholders have been duly consulted by TRAI before making
recommendations; the matter has also been examined by various
High Courts and the Supreme Court, and no lacuna has been
found in the notified policy to digitise Cable TV networks; and the
decision, on implementation of DAS in cable services, has been
taken in larger public interest.
The counter affidavit thereafter lists in detail the problems
and difficulties which analog form of transmission suffers from
which includes limited number of channels being made available,
and restraint on choice of the subscriber denying him a large
canvas of channels available in the broadcasting universe; the
limited carrying capacity of the analog system brings about a
distortion in the business of television distribution, as the
broadcaster is forced to incentivise cable operators for carrying
their channels by paying carriage fees or placement fee etc; analog
cables do not have the technological features of facilitating a-la-
carte (individual) selection of channels compelling the customers to
go by the bouquet of channels made available by the cable operator
on his own accord, restricting the say of customer in selection of
channels; lack of transparency as the subscriber base is not
accurately maintained and reported, which leads to under
reporting of subscription revenue, and consequent concealment of
tax revenues; limited carrying capacity of the analog system, and
lack of transparency distorts the business model for the
broadcasters; it increases their dependence on advertisement
revenues, and restricts the scope for increased generation of
subscription revenues (65:35); channels often sensationalize the
content on television for higher TRP ratings; lack of an effective
Consumer Grievance Redressal Mechanism; and inability to
provide high quality content, value added services and internet
connection service.
After narrating the difficulties in the analog system, it is
stated in the counter-affidavit that the first respondent introduced
DAS in cable TV services in 2007 which was implemented in a
phased manner; Phases I to III have already been completed;
instructions have been issued by the Ministry to all the
stakeholders i.e., Broadcasters, MSOs and LCOs, and consumers
have been given sufficient time in this regard; as per the amended
Rule 13(2) of the Cable Television Network Rules, 1994 (the Rules
for short), STBs are to be procured, supplied and installed by
MSOs; TRAI has mandated that every MSO/LCO has to offer the
scheme of outright purchase, rental or instalment basis for
providing STBs; it is mandatory for all operators to stop
transmission of analog signals after the cut-off date, failing which
the authorized officer would seize the equipment in terms of
Section 11 of the 1995 Act; TRAI had issued regulations to enable
subscribers to subscribe only to those channel which he or she
wants to see; and the object of DAS is only to facilitate
transmission of more number of channels, within a lesser band
width, to overcome shortcomings in the analog form of signals,
including bringing transparency which is missing in the analog
system.
The counter affidavit concludes with a prayer that the Writ
Petition be transferred to the Delhi High Court as per the order of
the Supreme Court in Transfer Petition No.430-444/2016 dated
01.04.2016, or that it be heard along with the three pending Writ
Petitions wherein the validity of Section 4-A of the 1995 Act are
under challenge, or to dismiss the Writ Petition.
While several applications have been filed, on behalf of the
Broadcasters by Star India Private Limited, the Association of
Indian Broadcasting Foundation and Association of Broadcasting,
the All India Digital Federation (an Association of Multi-system
Operators) and a local cable operator, to implead them as
respondents in the Writ Petition, Sri C. Ramachandra Raju,
learned counsel for the petitioner, has objected to these implead
applications being ordered, contending that the proposed
respondents are merely meddlesome interlopers, and should not
therefore be heard. He also sought time to file a counter affidavit in
all these implead applications.
While we have not ordered the implead applications as Sri C.
Ramachandra Raju, learned counsel for the petitioner, sought time
to file counter affidavits thereto, we heard Sri B. Narayana Reddy,
learned Assistant Solicitor General, Sri S. Niranjan Reddy, learned
Senior Counsel appearing on behalf of Star India Private Ltd, Sri
Abhishek Malhotra, Sri Rijul Taneja and Sri S. Rahul for the
Association of Broadcasters, Sri A. Tulsiraj Gokul, learned counsel
appearing on behalf of the MSOs and Sri M. Govind Reddy, learned
counsel appearing on behalf of the LCOs, as the issues raised in
this Writ Petition are of considerable public importance. The
elaborate submissions put forth by Learned Senior counsel and
Learned Counsel on either side shall, for convenience sake, be
examined under different heads.

I. SHOULD THIS WRIT PETITION BE TRANSFERRED TO THE
DELHI HIGH COURT

Sri B. Narayana Reddy, Learned Assistant Solicitor General
appearing on behalf of the first respondent, would submit that the
petitioner has, in effect, challenged the notifications issued by the
Government of India; while the prayer may have been couched in a
slightly different form, it is in effect not to implement the
notifications; the relief sought for in the Writ Petition squarely falls
within the order of the Supreme Court; and this Writ Petition
should also be transferred to the Delhi High Court.
Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would submit that the petitioner has not questioned
either the validity of the amended Section 4-A of the 1995 Act or
the notifications issued by the Government of India dated
11.11.2011, 11.09.2014 etc directing Broadcasters, MSOs and
LCOs to carry encrypted signals in Phase-III areas; neither Section
4-A(1) of the 1995 Act, nor the notifications issued by the
Government of India thereunder, prohibit transmission of signals
in the analog mode; the notice dated 22.12.2016, which prohibits
such transmission, is contrary both to Section 4-A(1) of the 1995
Act, and to the notifications issued by the Government of India in
this regard; the grievance of the petitioner is only that both the
Union and the State executive are doing something impermissible
under the law; they are seeking to prohibit something, which has
not been prohibited by Parliament, as Section 4-A only obligates all
cable operators to introduce DAS, and does not prohibit
transmission of analog signals along with DAS; the present Writ
Petition was instituted more than a couple of years after the order
of the Supreme Court; the question raised in the present Writ
Petition was not raised in any of the earlier Writ Petitions, which
were transferred to the Delhi High Court by the Supreme Court;
while directing that, even future cases should be transferred to the
Delhi High Court, the Supreme Court made it clear that it is only
cases in which similar legal issues arise for consideration which
should be transferred; the Supreme Court subsequently clarified
on 24.10.2016 that its order for transfer of cases to the Delhi High
Court pertained only to the notifications dated 11.11.2011 and
11.09.2014 under the 1995 Act as amended by the 2011 Act; what
is under challenge in this Writ Petition is the notice issued by the
Government of India on 22.12.2016; it is not as if every case filed
anywhere in India was transferred to the Delhi High Court; the
counter-affidavit, filed by the first respondent, itself discloses that
certain cases, pending in the Madras High Court, have not been
transferred to the Delhi High Court; the Writ Petitions before the
Delhi High Court were dismissed mainly on the ground that these
were all matters of policy; in a few cases, time was granted in view
of non-availability of set top boxes; and the question whether
Section 4-A(1) prohibited analog transmission, in addition to
transmission through the digital addressable system, was not in
issue before the Delhi High Court. He would refer to the letter of
the Ministry of Information and Broad casting dated 01.02.2007,
which refers to the cases pending before the Madras High Court in
this regard.
The object of introduction of DAS, and the obligation of a
subscriber to have a set top box to view channels transmitted in an
encrypted form, fell for consideration in Chalasani Narendra
Varaprasad v. Union of India ), and a Division bench of this Court
held:-
The High Court of Bombay while considering WP.No.2610 of 2012,
by the judgment of the Division Bench dated 31.10.2012, rejected the challenge
to the notification dated 21.06.2012 made at the instance of the MSO. It was held
that the Union Government has provided sufficient time for compliance to ensure
that no hardship is caused to any consumer as sufficient quantity of STBs were
made available. It was also observed that A certain degree of inconvenience is
inevitable in the enforcement of any deadline. The new regime, which has been
put into place by the Union Government is with a view to provide quality service
to consumers. The individual business hardship that is faced by a business
operator must necessarily give way to public interest Similarly, the Karnataka
High Court while disposing of WP.Nos.14946 14954/2013 and batch dated
16.04.2013 held at para 38 as under: 38. It is also clear from the materials on
record that respondent Nos.1 to 3 have periodically issued several directions,
guidelines and frameworks to effectively implement digitalization. Respondent
Nos.1 to 3 have framed Regulations to govern the tariff regime by specifically
stating the price and the formula for sharing the same between the MSO and
LCO. The broad terms of the interconnect link agreements have also been
specified and the MSO and the LCOI are mandated to abide by it. It is to be
noticed here that these writ petitions are not filed by the viewing public. In so far
as STBs are concerned, it has to vary in accordance with the quality, features
and the make. The MSOs do not have any control over the prices and the same
is determined by the market forces. The respondents have placed materials
before the Court to show that adequate number of STBs are available with
the MSOs. As held by the Bombay High court in the decision referred to
above, a certain degree of inconvenience is inevitable in the enforcement of
any deadline. The new regime, which has been put into place by the Union
Government is with a view to provide quality service to consumers. The
individual business hardship that is faced by a business operator must
necessarily give way to public interest in ensuring that services of a
stipulated quality are available to the members of the viewing
public.. (emphasis supplied).

The question whether a cable operator could continue to
transmit signals in the analog form, even after Section 4-A(1) of the
1995 Act was substituted by Act 21 of 2011, did not fall for
consideration in the said judgment.
On the question, whether this Writ Petition should be
transferred to the Delhi High Court and whether the petitioners, in
effect, have questioned the notifications issued by the Government
of India which were under challenge in the Writ Petitions hitherto
transferred to the Delhi High Court, it is necessary to refer to the
contents of the Government of India notification dated 11.11.2011.
In the exercise of the powers conferred by Section 4-A(1) of the
1995 Act, as amended by the 2011 Act, the Central Government,
having been satisfied that it is necessary in the public interest so to
do, notified, by notification dated 11.11.2011, that it shall be
obligatory for every cable operator to transmit or retransmit
programmes of any channel in an encrypted form through a digital
addressable system in such city, town or area, as specified in
column 2 of the table in respect of the corresponding State or
Union Territory, as specified in column 3, with effect from such
date, as specified in column 4. Phase II included the cities of
Hyderabad and Visakhapatnam, and the date specified in column 4
was 31.03.2013. Phase III, which included all other urban areas,
was to be completed by 30.09.2014 and Phase IV, for the rest of
India, by 31.12.2014. The time stipulated in the notification was
periodically extended thereafter.
While the notification dated 11.11.2011 obligated every cable
operator to transmit or re-transmit programmes of any channel in
an encrypted form, through a digital addressable system, it does
not explicitly prohibit the cable operator from transmitting signals
in the analog form in addition to transmission of signals in an
encrypted form. It is only in the impugned notice dated
22.12.2016 has the Government of India conveyed its decision that
all broadcasters, MSOs & LOCs would not be allowed, after
31.01.2017, to carry on analog signals in Phase III areas.
In its order, in Transfer Petition (Civil) Nos.430-444 of 2016
dated 11.03.2016, the Supreme Court, while issuing notice
returnable on 01.04.2016, directed that a final decision shall not
be rendered by the High Court, where the Writ Petitions were filed
which were sought to be transferred by this Transfer Petition, until
further orders. Thereafter, by order in Transfer Petition No.430-
437 of 2016 and 439-444 of 2016 dated 01.04.2016, the Supreme
Court directed that having regard to similar legal questions
involved in all the Writ Petitions that were raised before different
High Courts, with a view to avoid conflicting decisions by different
High Courts, and at the request made on behalf of the Union of
India seeking to transfer all the Transfer petitions pending before
the different High Courts, it was just and proper to withdraw all
those cases pending in different High Courts, and the transfer
petitions, to the Delhi High Court. The Supreme Court directed
that, in future, if any case on the same legal question is filed before
the High Court(s), such case(s) shall also be transferred to the
Delhi High Court.
The present Writ Petition filed in the year 2017 is evidently
not among the Writ Petitions which were pending before different
High Courts, for which transfer petitions were filed before the
Supreme Court in the year 2016. The question which necessitates
examination is whether, in terms of the directions of the Supreme
Court, this Writ Petition filed thereafter before this High Court
should also be transferred to the Delhi High Court. The directions
of the Supreme Court in this regard is that, if any case on the same
legal questions is filed before the High Court, such case should also
be transferred to the Delhi High Court.
With a view to ascertain whether the legal questions which
arise for consideration in the present Writ Petition were also in
issue in the Writ Petitions filed before different High Courts which
were the subject matter of Transfer Petition Nos.430-444 of 2016,
we examined a few such cases, and found that the questions raised
herein were not raised before the other High Courts, wherein the
legal questions related mainly to the constitutional validity of the
amended Section 4-A, and the timeline prescribed for
implementation of DAS even though adequate number of set off
boxes were not available in the market. We have been saved the
trouble of examining all the Writ Petitions as Sri S. Niranjan
Reddy, Learned Senior Counsel appearing on behalf of Star India,
fairly stated that the question raised in the present Writ Petition
were not raised in the Writ Petitions filed before different High
Courts which were part of Transfer Petition No.430-444 of 2016.
Even otherwise the Supreme Court has subsequently, in its
order in I.A. No.1-15 of 2016 in Transfer Petition (Civil). No.430-
444 of 2016, clarified that the controversy, which was ordered to be
transferred for hearing to the Delhi High Court, pertained only to
the notification dated 11.11.2011 and 11.09.2014 under the 1995
Act as amended by the 2011 Ordinance. As neither of the
notifications dated 11.11.2011 and 11.09.2014 are under
challenge in the present Writ Petition, the clarificatory order of the
Supreme Court dated 25.10.2016 would not require us to transfer
the present case to the Delhi High Court, but to adjudicate the
same on its merits.
It is also evident from the counter-affidavit filed on behalf of
Government of India that, while Phase I of digitilisation was
completed in Delhi, Mumbai and Kolkata, it could not be
completed in Chennai because of pending Court cases. It is thus
evident that the cases pending in Chennai Courts are being
contested thereat, and have not been transferred to the Delhi High
Court. In view of the clarificatory order of the Supreme Court
dated 25.10.2016, we see no justification in refusing examine the
questions raised in the present Writ Petition on its merits. The
contention, urged on behalf of the respondent in this regard,
necessitates rejection.
II. RECOMMENDATIONS OF TRAI ARE THEY RELEVANT IN
UNDERSTANDING THE SCOPE OF SECTION 4-A(1)

Sri C. Ramachandra Raju, Learned Counsel for the
petitioners, would submit that the provisions of the 1995 Act, as
amended by the 2011 Act, cannot be understood in the light of the
recommendations of TRAI; Section 4-A does not suffer from any
ambiguity, and therefore no reliance can be placed on the TRAI
recommendations; it is not obligatory for Parliament to accept the
recommendations of TRAI; it is evident that, by amending Section
4-A, Parliament did not intend to accept TRAI recommendations in
its entirety; the 2005 TRAI report recommends that a change over,
from analog to DAS, should be voluntary, and not compulsory;
public interest would not be defeated if the analog system is
continued; and the analog mode of transmission of signals is not
prohibited either by the pre-amended, or by the amended, Section
4-A.
It is contended, on behalf of the respondents, that the
recommendations in the 2010 TRAI report show that the intention
is to stop analog transmission, and effect transmission only
through the digital addressable system; not only would such
transmission bring about transparency, but it would also ensure
enhanced revenue generation, and effective recovery of taxes; it is
evident from the several recommendations in the 2010 TRAI report
that the 1995 Act was amended in 2011 only to bring an end to
the analog system of transmission, and to provide for transmission
of signals only through the digital addressable system; the TRAI
recommendations, when read in the light of the provisions of the
1995 Act and the Rules, make it clear that both Parliament and the
rule making authority intended that, after the date stipulated in
the notifications, transmission should be effected only in an
encrypted form, and not in an analog form; TRAI regulates both the
service and the service providers; the obligation to transmit signals
in an encrypted form extends to each and every Multi-System
Operator; in terms of the Government of India notification dated
09.01.2004, broad-casting and cable services are telecom services,
and fall under the purview of TRAI; the TRAI regulations are
binding on all these service providers; the TRAI recommendations
are, therefore, of great relevance; and the 2011 Act was introduced
only to comply with the recommendations of the TRAI, to bring the
existing analog system to an end, and to convert transmission only
in an encrypted form, making it compulsory for all subscribers to
have a set top box to receive signals in an encrypted form.
A statute is best understood if we know the reason for it. The
reason for a statute is the safest guide to its interpretation. The
words of a statute take their colour from its reason. There are
external and internal aids. The external aids are the Statement of
Objects and Reasons when the Bill is presented to Parliament, the
reports of committees which preceded the Bill, and the reports of
Parliamentary Committees. Occasional excursions into the debates
of Parliament are permitted. Internal aids are the Preamble, the
scheme and the provisions of the Act. Having discovered the reason
for the statute, the interpreter may proceed ahead. No provision in
the statute and no word of the statute may be construed in
isolation. (Utkal Contractors and Joinery (P) Ltd. v. State of
Orissa ; A. Manjula Bhashini v. A.P. Womens Coop. Finance
Corpn. Ltd., ). Interpretation of a statute being an exercise in the
ascertainment of meaning, everything which is logically relevant
should be admissible. (K.P. Varghese v. ITO ). In interpreting a
statute the court has to ascertain the will and policy of the
legislature as discernible from the object and scheme of the
enactment and the language used therein. (Chern Taong Shang v.
Commander S.D. Baijal ). The fairest and most rational method to
interpret the will of the legislator is by exploring his intention at
the time when the law was made, by signs most natural and
probable. And these signs are the words, the context, the subject
matter, the effect and consequence, or the spirit and reason of the
law. (Blackstone Commentaries on the Laws of England
(Facsimile of 1st edn. 1765, University of Chicago Press 1979
Vol. 1 at 59; Doypack Systems (P) Ltd. v. Union of India ).
The Telecom Regulatory Authority of India is a body
corporate established under Section 3(1) of the Telecom Regulatory
Authority of India Act, 1997 to exercise the powers conferred
under, and discharge the functions prescribed by, the said Act. By
notification in S.O. 44(E) dated 09.01.2004, the Government of
India, in the exercise of the powers conferred by the proviso to
clause (k) of sub-section (1) of Section 2 of the Telecom Regulatory
Authority of India Act, 1997, notified broadcasting services and
cable services to be telecommunication service. By the
notification in S.O.45(E) dated 09.01.2004 and, in the exercise of
the powers conferred by clause (d) of sub-section (1) of Section 11
of the Telecom Regulatory Authority Act, the Central Government
entrusted certain additional functions to the TRAI, established
under sub-section (1) of Section 3 of the Act, in respect of
broadcasting services and cable services. The TRAI was entrusted
with the functioning of making recommendations regarding the
terms and conditions on which the addressable system should be
provided to customers. In terms of the notification dated
09.01.2004, the TRAI has been entrusted with the functions of
making recommendations regarding the terms and conditions on
which the addressable system should be provided to customers. It
is therefore useful to refer to the recommendations of the TRAI in
this regard.
Further, as interpretation of Section 4-A would require us to
ascertain its meaning, and everything which is logically relevant
must be taken into consideration, we are satisfied that the contents
of the TRAI reports should be taken note of. While Sri C.
Ramachandra Raju, Learned Counsel for the petitioners would rely
on certain portions of the TRAI report dated 14.09.2005, the
Learned Counsel for the respondents would rely on certain
portions of the subsequent TRAI report dated 05.08.2010. It is
necessary for us, therefore, to briefly refer to the contents of both
the reports, more so as the Statement of objects and reasons for the
2011 amendment bill, whereby Section 4-A was substituted,
specifically refers to the TRAI report dated 05.08.2010.
The TRAI made certain recommendations on Digitalization of
Cable Television in its report dated 14.09.2005. It is useful to note
the relevant portions of these recommendations. Para. 1.4 thereof
relates to Facilitation of Policy of Digitalisation Objectives of
TRAI and, thereunder, it is stated that in developing the policy to
facilitate digitisation of cable networks the Authority has primarily
been guided by the need to keep the process completely voluntary;
cable operators, MSOs, broadcasters and consumers should adopt
the new technology only when they see the merits of such a shift;
what this means is that analog and digital transmission shall
continue side by side; consumers will only go for the digital
platform once they are convinced that it is advantageous to them;
in case, at a later date, they find that it is better to get out of the
digital service they would be free to do so; apart from this primary
consideration, the authority has been guided by the following
objectives i.e., (i) cable services should benefit from the
technological advances to the fullest possible extent, and enabled
to provide competition to other digital platforms; (ii) there should
be smooth transition from analog to digital transmission
recognising that analog services will continue along with digital
services for several years; (iii) the policy should promote
competition at all levels; (iv) the digitalisation policy should provide
guidelines to broadcasters, MSOs, Cable Operators and consumers
for adoption of new technology.
Para. 2.2 of these recommendations relate to International
experience and, thereunder, after stating that details of
international experience have been provided in the Consultation
Paper, reference is made to the important factors to be borne in
mind from this experience. They are (a) there is a cost attached to
moving to the digital platform; the biggest obstacle has been
consumer premises equipment consumers have not been very
enthusiastic about investing in digital set top boxes or digital
televisions; (b) most countries have provided a launch date as well
as a sunset date; (c) the sunset date fixed earlier in USA had to be
extended because of poor progress, and in other countries also
there is a provision to postpone the sunset date in case of poor
response; and (d) the only city in the world which has switched off
analog transmission is Berlin; and extensive subscriber education
and a subsidy scheme have been held to be crucial to this success.
Para 2.4 details the recommendations of the Authority, and
Para.2.4.1 relates to launch, time frame and plan. While detailing
the rationale for promoting digitalisation, the TRAI observed that
this does involve a cost especially for consumers who will have to
invest in a set top box or decoder to transform the digital signals
into analog and, therefore, the plan would have to be voluntary in
all steps, and would have to provide for simultaneous provision of
analog and digital service.
Chapter 6 of the TRAI report dated 14.09.2005 contains the
summary of recommendations. Para. 6.1.1 stipulates that there
should be a national plan for digitalisation from 1st April, 2006 till
31st March, 2010; and this plan would be indicative and would not
be mandatory in any form. Para 6.1.2 stipulates that the essential
components of this plan would be: (i) Introduction of digital service
in all cities/urban agglomerations with a population of one million
plus by 2010; and in all these cities/urban agglomerations the
existing analog service will continue simultaneously; (ii) licensing
for new entrants and automatic licensing for existing operators; (iii)
rationalisation of import and domestic duties by April 1, 2006; and
(iv) use of Entertainment tax for a consumer education programme
during these four years. (2006-2010). Para 6.3 relates to up-
gradation of network and technical choices and it is stated,
thereunder, that, while digitalisation of cable TV should be
promoted, the choice of analog CAS or Digital CAS should be left to
the Cable operators as per their business plans.
Five years thereafter, the TRAI submitted another report
dated 05.08.2010 which contained its recommendations on the
implementation of Digital Addressable Cable TV Systems in India.
The recommendations of TRAI contained the framework of
implementation of digitisation with addressability in India by
December, 2013, and several measures were suggested such as
fiscal incentives, right of way etc, to enable this process. The TRAI
report dated 05.08.2010 contains four chapters with four
annexures. Chapter-I relates to broadcasting sector nature and
limitations and, thereunder, the evolution of the broadcasting
sector are detailed, and it is noted that in 2009 the revenue size of
the Indian television industry was estimated at Rs.25,700 Crores;
of this Rs.16,900 Crores (66%) was attributed to subscription
revenue generated from consumers, and the balance Rs.8,800
Crores (34%) came from the advertising market; the last five years
had changed the dynamics of the market significantly; and from a
scenario where 100% of the cable and satellite (C&S) population
was dependent on analog cable services, DTH commanded around
20% market share by the end of 2009; uptake of digital services
was increasing and choice was becoming possible at the consumer
end; and the cable services value chain comprised four main
supply side entities i.e., the broadcaster, MSO, LCO and the end
consumer. The role of the broadcaster, MSO and LCO are detailed
in the report.
On the nature and characteristics of the Cable TV market,
the report dated 05.08.2010 states that the cable TV systems can
be analog, hybrid or digital; the stakeholders, in the analog cable
TV system, are the broadcasters, MSOs, LCOs and the consumers;
the broadcaster supplies the content, mostly in the form of
bouquets of channels, to MSOs; the MSO collects the content
(channels) from different broadcasters and, after repackaging, gives
it to the LCO for onward distribution to the consumer; the signal
an LCO gets is a single bouquet of analog channels belonging to
different broadcasters; the composition of the bouquet that reaches
the consumer is determined by the MSO; it reflects the MSOs
perception of what the consumers in the LCOs domain want to
watch; an MSO supplies signals to many LCOs; and though it is
technically possible for an MSO to offer different feeds for different
LCOs, there are practical limitations on the number of such feeds.
Para 1.51 states that, even if a feed is customised for a
particular LCO, the bouquet of channels carried by this LCO
cannot fully match the choice of TV channels of each subscriber; at
best, a typical consumer can expect to watch a choice of channels
broadly corresponding to the socio-cultural background of the LCO
domain in which he is residing; however, he cannot make specific
choices to suit his age, education, profession, language or interests;
in fact, the choice of channels would vary from subscriber to
subscriber; and, as a result, any particular subscriber in the
analog system may be paying for channels that he does not watch,
and may also be denied the viewing of specific channels of his
choice.
In para 1.52 it is stated that the signal compiled by the
MSO/LCO reaches the consumers TV receiver set where different
channels are selected by the tuner of the TV set; the tuner of a TV
set has a limited capacity of channel selection; this ultimately
limits the number of TV channels a viewer can watch through his
TV; and the design of the TV tuner matches the TV standard
adopted by a country. Para 1.53 records that in all 101 channels
can be accommodated; taking into consideration terrestrial FM
Radio and TV transmission as well, theoretically, the analog cable
system can have a capacity of 95-96 channels; however, given the
quality and type of the cables, modulators, RF amplifiers etc
deployed in the network, the channel carrying capacity of the
analog cable system practically gets limited to around 85-90
channels only.
Para 1.54 records that, in many parts of India, a hybrid
model is employed; in this model, some channels are carried in
analog form and the remaining capacity is used to carry digitally
modulated channels; and the combined signal is sent on the same
cable. Para 1.55 states that, in digital TV, compression techniques
are employed for storage and distribution/transmission of content;
these techniques capitalise on the redundancy of information in
intra and inter-picture frames, the movement predictions of picture
elements/objects, and the limitations of the human eye and ear to
compress the channels bandwidth requirement; this achieves the
dual objective of a near-normal viewing experience to the
consumer, and a remarkably reduced bandwidth (spectrum)
requirement; the bandwidth requirement of a digital channel
depends upon the complexity of content of the channel; greater
movement and finer visual details require more bandwidth; and, as
a rough estimate, 4 to 12 digital channels can be accommodated in
the bandwidth of a single analog channel, depending upon the
modulation technique employed and the nature of content.
On the Digital Addressable Cable TV System, the TRAI report
dated 05.08.2010 records, in para: 1.59, that, in this model, all the
channels, whether FTA or Pay, are delivered in the addressable-
digital form only; this is akin to the DTH model; not only is the
content carried in digital form, all content, whether pay or FTA, is
also encrypted; the subscriber necessarily requires a Set Top Box
(STB), duly authorised by the service provider (MSO), to view the
TV channels; and the same STB can also be used for reception of
other value added services and interactive services such as
broadband. Para 1.60 states that this model further enhances the
channel carrying capacity of the system over the hybrid model; in
this model, all FTA channels are also carried in digital format
making room for more channels; and the decoded content from the
STB can be viewed through the Audio/Video port of the TV receiver
set.
Chapter II of the TRAI report dated 05.08.2010 relates to
issues in digitization with addressability. Under this head, the
report examines the need for digitization with addressability,
including the issue whether complete digitization with
addressability (a box in every household) is the way forward. On
an analysis the TRAI report states, in para 2.7, that, in the present
cable TV system, service seekers (consumers) as well as service
providers (Broadcasters, MSOs and LCOs) are at a disadvantage;
the consumer has a limited choice of channels and he is also
compelled to pay for channels which are not of his choice; due to
non-transparent business transactions, broadcasters, MSOs and
LCOs are constantly involved in expensive litigation, which has
come to characterise the very nature of business in this segment of
the TV and entertainment industry. Para 2.8 states that the
limitations of analog cable TV transmission had given rise to non-
transparent business transactions based on negotiated non-
verifiable subscriber bases, differential pricing for the same content
and incidence of carriage and placement fee on account of demand-
supply mismatch arising out of capacity constraints, and the
advertisement-centric market strategy of broadcasters; these factors
had resulted in a lack of collaboration amongst various
stakeholders and, as business models came into conflict, litigation
had become more common. In para 2.9, it is stated that almost all
stakeholders recognize that the single most effective step that can
be taken to resolve the problems of the industry would be the
implementation of digitization of the cable TV system with
addressability; and this consensus had emerged from the written
comments of the stakeholders as well as from the views expressed
by the stakeholders. Para 2.10 states that digitization would solve
the problem of capacity constraint, and would enable incorporation
of value added services (viz. Pay per View, Time Shifted Video,
Personal Video Recorder, Near Video on Demand, Radio services,
Broadband etc.) in the offerings to the customer, which would
enhance the range of choice for the customer, and improve the
financial viability of operations for the service provider;
addressability would ensure choice of channels to the consumer
and transparency in business transactions; it would build
stakeholder confidence in the sector; and it would also effectively
address the issue of piracy.
The TRAI report dated 10.08.2010 also deals with regulatory
issues and the need to amend the 1995 Act. Para 2.43 states that,
in order to facilitate complete digitalisation of cable television
networks in India, it may also be necessary to have a re-look at the
provisions of Section 4-A of the Cable Television Networks
(Regulation) Act, 1995, and carry out necessary amendments
therein. Para 2.4 records that Section 4-A of the 1995 Act clearly
mandates that the basic service tier of free-to-air channels should
be available to subscribers without any addressable system
attached to their TV sets in any manner; in other words, these
provisions imply that, in CAS areas, the programmes of the basic
service tier should be available in the analog mode; the present
recommendations of the Authority contemplate that, after the
proposed sunset date, both FTA and pay channels should be
available to subscribers only through set top boxes helping in
determining subscriber base with transparency; the continuance of
the existing provisions of Section 4-A would result in the
continuance of the analog cable network along with digital network
in CAS notified areas, thus preventing the total analog sunset as
contemplated in these recommendations; further, if pay channels
are offered in digital form, and FTA channels are allowed to
continue in analog form without set top boxes, there is always the
possibility that pay channels will be offered as FTA channels,
resulting in piracy. Para 2.45 records that, in order to make cable
television systems fully digital (with hundred per cent
addressability), it would be necessary for each subscriber to acquire
a set top box, irrespective of whether such subscriber desires to
watch pay channels or not; having regard to the above, the
Authority was of the view that, in order to pave the way for a
complete analog switch off, the relevant provisions of Section 4-A of
the 1995 Act be amended suitably.
Chapter III of the TRAI report dated 05.08.2010 relates to the
roadmap for digitization with addressability. It is stated in para 3.6
that, internationally, concerted efforts are being made for up-
gradation to a fully digitized system; stakeholders in India have
different views on the issue of an appropriate date for analog switch
off; considering the fact that the subscribers of TV channels in
India belonged to a range of socio-economic backgrounds from the
very poor to the very affluent, a phased approach to transition from
the analog system to the addressable digital system would seem to
be most appropriate; the approach of phased implementation was
also supported by all the stakeholders; as the use of set top boxes
increased, set top boxes would be available at more affordable
prices; there arose the question as to whether the date for
migration to digital should be the same for pay and FTA channels,
or whether they should be different; if pay channels were offered in
digital form, and FTA channels continued in analog form without
STB, there was always the possibility that the pay channels would
be offered as FTA, resulting in piracy; additionally, if both pay and
FTA channels were received through STB, it would help in
determining the subscriber base with transparency; and the
Authority was of view that effective implementation would not be
possible if the date of migration was different for pay and FTA
channels.
The report then details the advantages of digitization with
addressability to various stakeholders. It is stated, in para 2.15,
that digitization with addressability would result in a number of
advantages to Consumers, Broadcasters, MSOs, LCOs and
Government. Para 2.16 records that, for the consumer, there
would be a choice of channels, enabling him to budget his bill as
per his choice and affordability; thus, he would pay only for what
he wants to watch; in addition, he would have a choice of
interactive services like Video on Demand (VoD), Personal Video
Recording (PVR), video gaming, teleshopping, with additional
features such as Electronic Program Guide (EPG) and broadband;
and he would derive value for his money with enhanced quality of
service through competition among operators/platforms. It is
stated, in para 2.17, that broadcasters would be able to carry on
their business transactions on auditable and verifiable subscriber
bases instead of negotiated basis; the digital dividend would ensure
availability of channel choice and spectrum, and hence allow viable
business planning for existing broadcasters and new entrants;
regional channels would be encouraged; thus, broadcasters would
get value for their content, commensurate to quality, and content
would be protected against piracy; and the increased capacity
would also enable broadcasters to offer niche channels and HDTV
channels. Para 2.18 records that MSOs would be benefited as
they would be able to choose their channels on a-la-carte basis;
they would be able to market pay channels based on demographics
and socio-economic conditions in their markets; and MSOs would
be able to generate more revenue through broadband, value added
and interactive services like VOD, PVR, video gaming, music and
tele-shopping etc. Para 2.19 states that, for local cable operators,
business transactions would be based on auditable subscriber
base; if the subscriber base declined, he would get commensurate
financial relief for the same; besides FTA subscription, he would get
a share of revenue from all pay channels, broadband services and
other value added services; cable operators would also be better
equipped to meet customer requirements in terms of choice of
channels and services, and in terms of quality of service. Para 2.20
records that, as far as the Government was concerned, tax
collection would match the market size; and the Government
would also earn increased service tax revenue through enhanced
deployment of broadband and other value added services. It is
stated, in para 2.21, that, lastly, greater transparency in business
transactions would greatly reduce litigation amongst service
providers, and reduce the need for regulatory intervention; this
would result in better collaboration among service providers, and
overall growth of the sector; and the Authority was of the view that
digitization with addressability was the way forward for the cable
TV industry in Non-CAS areas. In para 2.22, the Authority
recommended that digitization with addressability be implemented
on priority for Cable TV services in Non-CAS areas. In para 3.11,
the Authority recommended that migration to a digital addressable
cable TV system be implemented with a sunset date for Analog
Cable TV Services as 31st Dec 2013, in four phases as follows:-
Phase I: In four Metros Delhi, Mumbai, Kolkata and
Chennai, by 31st March 2011.

Phase II: In all cities having a population of over one million, by
31st December 2011.

Phase III: In all other urban areas (municipal
corporations/municipalities), by 31st
December 2012.

Phase IV: In the rest of India, by 31st December 2013.

The recommendations of the TRAI, in its earlier report dated
14.09.2005, were that, while digitilisation of cable TV should be
promoted, the choice of analog conditional access system or digital
conditional access system should be left to the cable operators as
per their business plans. In its subsequent report dated
05.08.2010, the TRAI has recommended that digitisation with
addressability be implemented on priority for cable TV services; and
migration to a digital addressable cable TV system should be
implemented with a sunset date for analog cable TV services in 4
phases. While the four metros were placed in Phase I with the
sunset date for analog cable TV services as 31.03.2011, the sunset
date in Phase II areas was recommended to be 31.12.2011, in
Phase III areas as 31st December, 2012, and in Phase IV by 31st
December, 2013. By the impugned notice dated 22.12.2016, the
last date for sunset of the analog system has been prescribed as
31.01.2017 for phase III areas. The recommendations of the TRAI,
in its report dated 05.08.2010 is to ensure that, after the sunset
date, transmission of signals is only through DAS and the earlier
mode of transmission of signals in an analog form is completely
disbanded.
While the impugned notice dated 22.12.2016 accords with
the TRAI recommendations in its report dated 05.08.2010, the
contention of Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, is that Parliament, while enacting Act 21 of 2011
whereby Section 4(A) was substituted, did not accept the
recommendations of TRAI in its report dated 05.08.2010 in its
entirety and, while making it obligatory for cable TV operators to
send signals in an encrypted form, it has not prohibited them from
simultaneously sending signals also in the analog form. Before
examining this issue, it is useful to note the contents of the
Statement of Objects and Reasons for introduction of the Bill
which resulted in enactment of Act 21 of 2011 whereby Section 4-A
was substituted.
III. STATEMENT OF OBJECTS AND REASONS : ITS
RELEVANCE IN INTERPRETING SECTION 4-A(1):

Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would submit that the Statement of Objects and
Reasons for the bill are distinct from the Statement of Objects and
Reasons of the 2011 amendment Act; Parliament, by not including
the Statement of Objects and Reasons in the 1995 Act itself, must
be deemed to have rejected the bill; no aid can be taken of the
Statement of Objects and Reasons, placed before Parliament, by the
Executive; and such a Statement of Objects and Reasons is not
even an external aid to construction.
It is contended, on behalf of the respondents, that the very
object of the amendment is to switch over from the analog system
to the digital system of transmission of signals in an encrypted
form; not only is the object of the amendment to provide more
number of channels to the subscriber in a lesser band width, but
also to plug leakage of revenues of the State, which cable T.V.
operators are resorting to by the use of the analog system of
transmission; and digitization with addressability is stipulated in
the Statement of Objects and Reasons.
The Statement of Objects and Reasons need to be looked
into, though not by itself a necessary aid, as an aid to construction
only if necessary. To assess the intent of the legislature in the event
of there being any confusion, the Statement of Objects and
Reasons may be looked into, and no exception can be taken thereto
this is not an indispensable requirement but when faced with an
imperative need to appreciate the proper intent of the legislature,
the Statement may be looked into but not otherwise.
(Gurudevdatta VKSSS Maryadit v. State of Maharashtra ; A.
Manjula Bhashini5).
The Statement of Objects and Reasons, and the preamble of
an Act, open the minds of the makers in enacting the law. It cannot
altogether be eschewed from consideration of the relevant
provisions of the Act. (S.S. Bola v. B.D. Sardana ). Although the
Statement of Objects and Reasons contained in the Bill, leading to
enactment of the particular Act, cannot be made the sole basis for
construing the provisions contained therein, the same can be
referred to for understanding the background, the antecedent state
of affairs and the mischief sought to be remedied by the statute.
The Statement of Objects and Reasons can also be looked into as
an external aid for appreciating the true intent of the legislature
and/or the object sought to be achieved by enactment of the
particular Act. (A. Manjula Bhashini5; Gurudevdatta VKSSS
Maryadit9; Narain Khamman v. Parduman Kumar Jain ; Bhaiji
v. SDO ; Principles of Statutory Interpretation by Justice G.P.
Singh, 8th Edn., 2001, pp. 206-09).
The Statement of Objects and Reasons seeks only to explain
what reasons induced the mover to introduce the Bill in the House,
and what objects he sought to achieve (Aswini Kumar Ghose v.
Arabinda Bose ). The Statement of Objects and Reasons
accompanying a Bill, when introduced in Parliament, cannot be
used except for the limited purpose of understanding the
background and the antecedent state of affairs leading up to the
legislation. (State of W.B. v. Union of India ). The Statement of
Objects and Reasons might be admissible not for construing the
Act but for ascertaining the conditions which prevailed when the
legislation was enacted. (State of West Bengal v. Subodh Gopal
Bose ; M.K. Ranganathan v. Government of Madras ; A.
Thangal Kunju Musaliar v. M. Venkitachalam Potti ; CIT v.
Sodra Devi ; and Jai Lal v. Delhi Admn., ).
Although in Aswini Kumar Ghose13 it was held that the
Statement of Objects and Reasons contained in the Bill cannot be
used or relied upon for the purpose of construction of the statute,
this rule has not been strictly followed in subsequent judgments.
In A. Thangal Kunju Musaliar17, the Statement of Objects and
Reasons was used for judging the reasonableness of the
classification made in an enactment to see if it infringed or was
contrary to the Constitution. In Central Bank of India v.
Workmen it was held that the Statement of Objects and Reasons
can be used for the limited purpose of understanding the
background and antecedent state of affairs leading up to the
legislation. The same view was reiterated in a large number of other
judgments including Bhaiji12 in which the Supreme Court referred
to the Principles of Statutory Interpretation by Justice G.P.
Singh, 8th Edn., 2001, and observed that a reference to the
Statement of Objects and Reasons is permissible for understanding
the background, the antecedent state of affairs, the surrounding
circumstances in relation to the statute, and the evil which the
statute sought to remedy. (A. Manjula Bhashini5).
The Statement of Objects and Reasons for the amendment
bill (for Act 21 of 2011, whereby Section 4-A was substituted) refers
to the fact that the Telecom Regulatory Authority of India (TRAI), in
its recommendation dated 05.08.2010 on Implementation of the
Digital Addressable Cable Systems in India, had, inter alia,
recommended that digitalization with addressability be
implemented on priority in cable TV services in non-CAS areas;
they had accordingly recommended a time frame comprising four
phases for switch over from analog system to the digital
addressable system (DAS) in the cable TV sector; in view of the said
recommendations of TRAI, the Central Government had decided to
introduce digitalization with addressability in the cable TV services
in a phased time bound manner on a pan-India basis, leading to
complete switch off of analog TV services by 31.12.2014; for
implementation of DAS, certain amendments were required to be
made in the 1995 Act mandating all cable operators to provide
programmes of all channels including free to Air (FTA) channels, in
encrypted form through DAS in a phased manner at the specified
areas from the specified dates to be notified by the Central
Government; it was mandatory that any such notification should
give atleast six months time to the cable operators to install the
necessary digital equipment for migration, and to educate the
subscribers in this area; in order to protect the interest of
consumers, it was proposed to empower TRAI to specify a package
of free to air channels, called basic service tier, which shall be offered
by every cable operator to the consumer; and it is also necessary
that every cable operator should offer channels in the basic service
tier on a la carte (individual) basis to the consumer at a tariff fixed
by TRAI.
The Statement of Objects and Reasons refer to the TRAI
report dated 05.08.2010 recommending a time frame for switch
over from the analog system to the digital addressable system in
the cable TV sector; to the Central Government having decided to
introduce digitisation with addressability in a phased time bound
manner leading to a complete switch off of analog TGV services by
31.12.2014; and that, for implementation of DAS, certain
amendments were required to be made in the 1995 Act mandating
that all cable operators provide programmes of all channels,
including free to air channels, in an encrypted form through DAS
in a phased manner. It is evident, therefore, that the Statement of
Objects and Reasons also show that the analog system is required
to be disbanded, and to be completely discontinued in a phased
manner.
The Statement of Objects and Reasons accompanies the bill
introduced in the legislature, and should not be confused with the
preamble to an enactment. The preamble of a Statute, like the long
title, is a part of the Act and is an admissible internal aid to
construction. Although not an enacting part, the preamble is
expected to express the scope, object and purpose of the Act more
comprehensively than the long title. It may recite the ground and
cause of making of the statute, the evils sought to be remedied or
the doubts which may be intended to be settled. It is to the
preamble more specially that we are to look for the reason or spirit
of every statute, rehearsing this, as it ordinarily does, the evils
sought to be remedied, or the doubts purported to be removed by
the statute, and so evidencing, in the best and most satisfactory
manner, the object or intention of the Legislature in making or
passing the statute itself. (Brett v. Brett ; Principles of Statutory
Interpretation 13th Edition 2012 by Justice G.P. Singh). The
preamble is a key to open the minds of the makers of the Act, and
the mischiefs which they intended to redress. The preamble being
a part of the statute can be read along with other portions of the
Act to find out the meaning of the words in the enacting provisions
as also to decide whether they are clear or ambiguous. (Union of
India v. Elphinstone Spinning & Weaving Co. Ltd ; Stowel v.
Lord Zouch ; A.G. v. HRH Prince Ernest Augustus ).
While the preamble of an enactment is an internal aid,
unlike the Statement of Objects and Reasons which is an external
aid to the interpretation of statutes, the submission of Sri C.
Ramachandra Raju, Learned Counsel for the petitioner, is that
resort to external or internal aids of interpretation is permissible
only where the statutory provision suffers from some ambiguity
and, as Section 4(A) is clear and unambiguous, it is unnecessary to
take the aid of any other mode of construction of statutes. It is
necessary, therefore, for us to examine the scope of Section 4-A of
the 1995 Act as amended by Act 21 of 2011. Before doing so, it is
necessary to briefly note the distinction between analog and DAS
mode of transmission of signals.
IV. DISTINCTION BETWEEN ANALOG AND DAS:
Sri C. Ramachandra Raju, learned counsel for the petitioner,
would submit that the analog system of transmission did not come
into existence with the permission of the statute; it is a natural
form of transmission; it dates back to transmission of signals itself;
the digital addressable system (DAS) encrypts analog signals and
sends them to the Television sets in a digitised form; Television sets
are incapable of receiving encrypted signals directly, and require a
set top box (STB) to do so; the STB receives encrypted signals, and
decrypts them; after decryption, the signals received by the TV is
only in analog form; both DAS and analog transmission can be
effected through a single cable, albeit in different frequencies; both
the conditional access system (CAS) and the subscriber
management system (SMS) are embedded in the set top box; no set
top box can function merely with either one of them; a combination
of CAS and SMS constitutes the STB; the function of the
conditional access system (CAS) is to decode/decrypt the encrypted
signal, and it is only then would the T.V. Set receive these signals;
comparison of the merits and demerits of analog or DAS is in the
legislative realm; an addressable system also converts analog
signal into an encrypted signal, and is sent by the Multi System
Operator (MSO) to the subscriber; the STB with the subscriber
decrypts the signal sent to it, converts it into analog form, and
sends the analog signal to the television set; and, while every cable
operator is obligated to introduce an addressable system, the
analog mode of transmission of signals can also be continued along
with the encrypted system i.e. DAS.
It is submitted, on behalf of the respondents, that unlike an
analog form of transmission, the encrypted form is digitized; it
occupies far less band width as compared to the analog form of
transmission; an analog form of transmission is incapable of
encryption; and the band width allocation, in an analog form of
transmission, is far higher than in a digitized/encrypted form of
transmission.
The question which necessitates examination is whether the
impugned notice dated 22.12.2016, whereby local cable operators
were prohibited after 31.01.2017 from transmitting analog signals
in Phase-III areas, falls foul of Section 4-A of the 1995 Act. It is
only if Section 4-A is held as enabling the local cable operator to
transmit signals in an analog form, in addition to transmission of
signals in an encrypted form, would the impugned notice dated
22.12.2016 be liable to be struck down as having been passed in
contravention of Section 4-A of the 1995 Act as amended by Act 21
of 2011.
It is necessary therefore to refer, albeit in brief, to the
relevant provisions of the 1995 Act and the rules made thereunder.
Section 2(aii) of the 1995 Act defines Broadcaster to mean a person
or a group of persons, or a body corporate, or any organization or
body providing programming services, and to include his or its
authorised distribution agencies. Section 2(aiii) defines cable
operator to mean any person who provides cable service through a
cable television network or otherwise controls or is responsible for
the management and operation of a cable television network and
fulfils the prescribed eligibility criteria and conditions. Section 2(b)
defines cable service to mean the transmission by cables of
programmes including re-transmission by cables of any broadcast
television signals. Section 2(c) defines cable television network to
mean any system consisting of a set of closed transmission paths
and associated signal generation, control and distribution
equipment, designed to provide cable service for reception by
multiple subscribers. Section 2(i) defines subscriber to mean any
individual, or association of individuals, or a company, or any
other organization or body who receives the signals of cable
television network at a place indicated by him or it to the cable
operator, without further transmitting it to any other person.
Chapter II of the 1995 Act relates to regulation of cable
television network. Section 3 stipulates that no person shall
operate a cable television network unless he is registered as a cable
operator under the 1995 Act. Section 4 relates to registration as
cable operators and, under sub-section (1) thereof, any person who
is desirous of operating or is operating a cable television network
may apply for registration or renewal of registration, as a cable
operator, to the registering authority. Under sub-section (3)
thereof, on and from the date of issue of a notification under
Section 4-A, no new registration in a State, City, town or area
notified under that Section shall be granted to any cable operator
who does not undertake to transmit or re-transmit channels in an
encrypted form through a digital addressable system.
Section 4-A of the 1995 Act was substituted by Act 21 of
2011 with effect from 25.10.2011. Section 4-A(1), after its
substitution, stipulates that, where the Central Government is
satisfied that it is necessary in the public interest so to do, it may,
by notification in the Official Gazette, make it obligatory for every
cable operator to transmit or re-transmit programmes of any
channel in an encrypted form through a digital addressable system
with effect from such date as may be specified in the notification,
and different dates may be specified for different States, Cities,
towns or areas, as the case may be. Under the proviso thereto, the
dates specified in the notification shall not be earlier than six
months from the date of issue of such notification to enable the
cable operators, in different States, Cities, towns or areas, to install
the equipment required for the purposes of Section 4-A(1). Section
4-A(3) provides that, if the Central Government is satisfied that it is
necessary in the public interest so to do and if not otherwise
specified by the Authority, it may direct the Authority to specify, by
notification in the Official Gazette, one or more free-to-air channels
to be included in the package of channels forming the basic service
tier, and any one or more such channels may be specified, in the
notifications, genre-wise for providing a programme mix of
entertainment, information, education and such other
programmes, and fix the tariff for basic service tier which shall be
offered by the cable operators to the consumers, and the consumer
shall have the option to subscribe to any such tier. Under the
proviso thereto, the cable operator shall also offer the channels in
the basic service tier on a la carte basis to the subscriber at a tariff
specified under Section 4-A(3). Section 4-A(6) stipulates that the
cable operator shall not require any subscriber to have a receiver
set of a particular type to receive signals of cable television network.
Under the proviso thereto, the subscriber shall use a digital
addressable system to be attached to his receiver set for receiving
programmes transmitted on any channel.
Explanation (a) to Section 4-A stipulates that, for the
purposes of Section 4-A, addressable system means an electronic
device (which includes hardware and its associated software) or
more than one electronic device put in an integrated system
through which signals of cable television network can be sent in
encrypted form, which can be decoded by the device or devices,
having an activated Conditional Access System at the premises of
the subscriber within the limits of authorisation made, through the
Conditional Access System and the subscriber management
system, on the explicit choice and request of such subscriber, by
the cable operator to the subscriber. Explanation (b) defines basic
service tier to mean a package of free-to-air channels to be offered by
a cable operator to a subscriber with an option to subscribe for a
single price, to subscribers of the area in which his cable television
network is providing service. Explanation (c) defines encrypted, in
respect of a signal of cable television network, to mean the
changing of such signal in a systematic way so that the signal
would be unintelligible without the use of an addressable system,
and the expression “unencrypted” shall be construed accordingly.
Explanation (d) defines free-to-air channel, in respect of a cable
television network, to mean a channel for which no subscription
fee is to be paid by the cable operator to the broadcaster for its re-
transmission on cable. Explanation (e) defines pay channel, in
respect of a cable television network, to mean a channel for which
subscription fees is to be paid to the broadcaster by the cable
operator and due authorisation needs to be taken from the
broadcaster for its re-transmission on cable. Explanation (f)
defines subscriber management system to mean a system or device
which stores the subscriber records and details with respect to
name, address and other information regarding the hardware being
utilised by the subscriber, channels or bouquets of channels
subscribed to by the subscriber, price of such channels or
bouquets of channels as defined in the system, the activation or
deactivation dates and time for any channel or bouquets of
channels, a log of all actions performed on a subscribers record,
invoices raised on each subscriber and the amounts paid or
discount allowed to the subscriber for each billing period.
Chapter III of the 1995 Act relates to seizure and confiscation
of certain equipment. Section 11 relates to the power to seize
equipment used for operating cable television network and,
thereunder, if any authorised officer has reason to believe that,
among others, the provisions of Section 3 and Section 4-A have
been or are being contravened by any cable operator, he may seize
the equipment being used by such cable operator for operating the
cable television network. Chapter IV of the 1995 Act relates to
offences and penalties. Section 16 prescribes the punishment for
contravention of the provisions of the 1995 Act and, thereunder,
whoever contravenes any of the provisions of the 1995 Act shall be
punishable (a) for the first offence, with imprisonment for a term
which may extend to two years or with fine which may extend to
one thousand rupees or with both; and (b) for every subsequent
offence, with imprisonment for a term which may extend to five
years and with fine which may extend to five thousand rupees.
Section 17 relates to offences by companies and, under sub-section
(1) thereof, where an offence under the Act has been committed by
a Company, every person who, at the time the offence was
committed, was in charge of, and was responsible to, the company
for the conduct of the business of the company, as well as the
company, shall be deemed to be guilty of the offence and shall be
liable to be proceeded against and punished accordingly.
The Cable Television Networks Rules, 1994 (hereinafter
called the Rules) came into force on its publication in the Official
Gazette on 29.09.1994. Rule 2(c) defines Multi-System Operator to
mean a cable operator who has been granted registration under
Rule 11-C to receive programming service from a broadcaster or its
authorized agencies and re-transmit the same or transmit his own
programming service for simultaneous reception either by multiple
subscribers directly or through one or more local cable operators,
and includes his authorized distribution agencies, by whatever
name called. Rule 2(d) defines notified area to mean the area in
respect of which the date has been notified by the Central
Government under sub-section (1) of Section 4- of the Act.
Rule 3 relates to application for registration as a cable
television network in India, Rule 5 to the Registration of cable
operator, and Rule 5-A to the terms and conditions for registration.
Rule 5-B relates to deemed registration for transmission in
encrypted form in certain cases and thereunder where, in respect of
an area, a cable operator has already been registered and such
registration is valid as on the date when such area was notified
under 4-A(1), he shall be deemed to have been registered in respect
of such area for the remaining period of its validity. Under the
proviso thereto, such cable operator shall (i) transmit or re-transmit
programmes of any channels in an encrypted form through a
digital addressable system for the remaining period of the validity
of registration in such areas. Under the second proviso thereto
where such cable operator fails to do so, the registration, which is
so deemed to have been valid, shall stand cancelled with effect from
the date when such area is notified. Rule 11 relates to the grant of
permission to multi-system operators to provide cable services with
addressable systems in the notified area and, under sub-rule (1)
thereof, no multi-system operator shall provide cable television
network services with addressable systems in any one or more
notified areas without a valid permission from the Central
Government under Rule 11(3). Rule 11(5) stipulates that no multi-
system operator shall continue to provide any cable television
network services in the notified areas after the date notified therein,
without obtaining prior permission from the Central Government.
Rule 11-F relates to deemed registration of multi-system operators
in certain cases and, thereunder, no multi-system operator,
providing cable television network services in areas as on the date
when such areas are notified under Section 4A(1), shall, with effect
from the date specified in that notification, continue to provide
such services in such areas unless the operator is granted
registration under Section 11-C. Under the second proviso thereto,
the multi-system operator is required to furnish an undertaking to
the registering authority, at least thirty days prior to the notified
date of operation of the digital addressable system, namely that (a)
such operator shall transmit or re-transmit channels only in an
encrypted form through a digital addressable system in the notified
areas. Under the third proviso thereto, where such operator fails to
do so, the permission which is deemed to have been valid, shall,
with effect from the date when such area is notified, stand
cancelled. Rule 12 relates to public awareness, information
channels, price of channels, quality standards and grievance
redressal and, under sub-section (1) thereof, every broadcaster,
multi-system operator and cable operator shall create public
awareness among, and provide information to, the subscribers in
the notified areas from a period at least thirty days prior to the date
such areas are notified, either through advertisements in the print
and electronic media or through such other means including
leaflets, printing on the reverse of the receipts, personal visits,
group meetings with subscribers or consumer groups, cable service
and website, containing salient features of the digital addressable
cable system as approved by the Authority namely (a) a-la-carte
subscription rates and the periodic intervals at which such
subscriptions are payable for receiving the various channels; (b) the
refundable security deposit and the daily or monthly rental payable
for the set-top box and its detailed specifications such as the make,
model, technical specifications, user manuals and maintenance
centres; (c) the number and names of free-to-air channels that the
multi-system operator shall provide to the subscribers; (d) the
monthly service charge to be paid by each subscriber for receiving
the basic service tier fixed by the Authority and the number of
additional free-to-air channels, if any, offered by the Multi-System
Operator; (e) the Quality of Service Standards specified by the
Authority and the arrangements made by the multi-system
operator to comply with these standards; (f) the Subscriber
Management System established by the multi-system operator to
demonstrate the functioning of the set-top boxes, and to interact
with the subscribers to explain the various financial, logistic and
technical aspects of the system for its smooth implementation.
Rule 13 relates to supply and installation of set-top-boxes and,
under sub-Rule (1), every subscriber in the notified areas, who is
desirous of receiving one or more channels, may approach any one
of the multi-system operators who has been registered under Rule
11-C, either directly or through any of his linked local cable
operators, for the supply and installation of one or more set-top
boxes in his premises and deliver the requisite channels through
the same. Under the proviso thereto, every subscriber shall be free
to buy a set-top box of approved quality from the open market, if
available, which is technically compatible with the system of the
multi-system operator, and the multi-system operator or the cable
operator shall not force any subscriber to buy or to take on rent the
set-top box from him alone. Bearing the aforesaid provisions of
the 1995 Act and the Rules in mind, let us now examine whether
Section 4-A(1) of the 1995 Act, as amended by Act 21 of 2011,
prohibits transmission of signals in an analog form after
31.01.2017 in Phase III areas, or whether the local cable operator is
still entitled, notwithstanding the substitution of Section 4-A, to
transmit signals in an analog form so long as he also transmits
signals in an encrypted form.
V. DOES SECTION 4-A PROHIBIT TRANSMISSION OF ANALOG
SIGNALS:

Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would submit that Section 4-A of the 1995 Act, as
amended by Act 21 of 2011, does not prohibit transmission of
analog signals; while Section 4-A(1) makes it obligatory for every
cable operator to transmit signals through DAS, it does not bar
such an operator from, in addition, transmitting signals in an
analog form; the word only is missing in Section 4-A(1); absence
of the word only in Section 4A(1) of the 1995 Act makes it evident
that, while a cable operator is obligated to transmit signals through
DAS, it is open to him, if he so chooses, to also transmit signals in
an analog form; as Section 4-A is clear and unambiguous, a literal
construction should alone be adopted, and there is no need to take
the aid of any other rule of interpretation of statutes; Parliament
could have, if it intended to prohibit analog mode of transmission,
expressed its intention by stating that all cable T.V. operators
should transmit signals only in DAS; and, as Section 4-A does not
explicitly prohibit analog transmission, the impugned notice dated
22.12.1016 is illegal.
It is submitted, on behalf of the respondents, that Section 4-
A(1) makes it obligatory for signals to be transmitted only through
the digital addressable system giving a go-bye to the earlier analog
system; the provisions of the 1995 Act, as amended by the 2011
Act, must be read as a whole; a few words in Section 4-A(1), or in
explanation (a) thereto, cannot be read out of context to contend
that signals can be transmitted in an analog form in addition to
transmission through the digital addressable system; Section 4-
A(1) does not explicitly provide for transmission of signals in the
analog form; reference in explanation (a) to Section 4-A is to the
addressable system, and not to the mode of transmission; the choice
of the subscriber is only in terms of the addressable system i.e
within the set top box; the sun set clauses, in the Act and the
Rules, make it clear that, after the cut off date, analog form of
transmission should be brought to an end, and thereafter signals
can only be permitted to be sent in an encrypted form; the
provisions of the 1995 Act, when read as a whole, make it clear
that the analog system is required to be brought to an end; it is
evident from the proviso to Section 4-A(6) that, while a subscriber
can have a set top box of his choice, he has necessarily to use a set
top box attached to his receiver for receiving programmes
transmitted on any channel; it is compulsory for all subscribers to
have a set top box, and thereby receive signals only in an encrypted
form; the proviso to Section 4-A(6) is mandatory; Rule 5-B, which
relates to deemed registration, also makes it clear that, after the
licence period of one year, the local cable operator is obligated to
switch over to the digital addressable system, and to transmit
signals only in an encrypted form; different provisions of the 1995
Act cast an obligation on each of the service providers, (which
includes the Multi-System Operators, the local cable operators),
and the recipient of the services i.e. the subscriber; the obligation is
to transmit signals, for every channel, in an encrypted form by the
digital addressable system; the word obligate is another
expression for mandatory; and, as the Statute requires
transmission to be effected in an encrypted form, absence of the
word only will not change its meaning.
Section 4-A(1), as substituted by Act 21 of 2011, confers
power on the Central Government (a) if it is satisfied that it is
necessary in the public interest so to do, and (b) by notification in
the official gazette, to make it obligatory for every cable operator,
from a specified date, to transmit or retransmit programmes of any
channel in an encrypted form, through a digital addressable
system. While Section 4-A mandates transmission of programmes
of any channel in an encrypted form, the submission of Sri C.
Ramachandra Raju, Learned Counsel for the petitioner, is that
Section 4-A(1) does not use the word only; it is therefore open to a
cable operator to transmit programmes of any channel in an analog
form also, so long as he transmits programmes in an encrypted
form; and it would then be open to a subscriber to choose whether
he wishes to receive programmes in an analog form or in an
encrypted form.
Every statutory provision and every word used therein must
be looked at generally before any provision or word is attempted to
be construed. The setting and the pattern are important. It is again
important to remember that Parliament does not waste its breath
unnecessarily. Just as Parliament is not expected to use
unnecessary expressions, Parliament is also not expected to
express itself unnecessarily. Even as Parliament does not use any
word without meaning something, Parliament does not legislate
where no legislation is called for. Parliament cannot be assumed to
legislate for the sake of legislation; nor can it be assumed to make
pointless legislation. Parliament does not indulge in legislation
merely to state what it is unnecessary to state or to do what is
already validly done. Parliament may not be assumed to legislate
unnecessarily. (Utkal Contractors and Joinery (P) Ltd.4; A.
Manjula Bhashini5).
The legislative intent, in enacting Section 4-A(1), can be
ascertained not merely by construing the words used in the said
provision, but on a reading of relevant provisions of the 1995 Act
as a whole, the context and the subject mater of the provisions,
and its effect and consequences. A statute must be interpreted
having regard to the purport and object of the Act. The court must
place itself in the chair of a reasonable legislator. In so doing, it
would not be permissible for the court to construe the provisions in
such a manner which would destroy the very purpose for which
the same was enacted. (Krishna Kumar Birla v. Rajendra Singh
Lodha ). It is a cardinal principle of construction that the courts
must adopt a construction which would suppress the mischief and
advance the remedy. (A-One Granites v. State of U.P., ). It is the
duty of the court to further Parliament’s aim of providing a remedy
for the mischief against which the enactment is directed, and the
court should prefer a construction which advances this object
rather than one which attempts to find some way of circumventing
it. (Francis Bennion on Statutory Interpretation, 2nd Edn., p.
711; Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd., ). While Section 4-A(1) requires every cable
operator to transmit any channel in an encrypted form through a
digital addressable system, it does not explicitly permit or prohibit
analog transmission.
Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would commend a literal construction of Section 4-A(1),
and for the said provision to be interpreted independent of
explanation (a) thereto. We must express our inability to agree as
Section 4-A(1) uses the word digital addressable system and
explanation (a) thereto defines an addressable system. Further while
there is no explicit prohibition, Section 4-A(1) does not also
explicitly permit transmission of signals in an analog form. As
Section 4-A(1) is not clear and unambiguous, a literal construction
thereof is of no avail, and we must necessarily, resort to other aids
of statutory interpretation. Whether or not it can be inferred from
Section 4-A(1) that a cable operator can still continue to transmit
signals in an analog form, would require us to ascertain the
legislative intent, the purpose and object for which Section 4-A(1)
was substituted by Act 21 of 2011, and the mischief which was
sought to be remedied thereby.
Purpose is a subjective concept, and the interpreter should
imagine himself or herself in the legislator’s shoes. There are,
however, two elements of objectivity: First, the interpreter should
assume that the legislature is composed of reasonable people
seeking to achieve reasonable goals in a reasonable manner; and
second, the interpreter should accept the non-rebuttable
presumption that members of the legislative body sought to fulfil
their constitutional duties in good faith. This formulation allows
the interpreter to inquire not into the subjective intent of the
author, but rather the intent the author would have had, had he or
she acted reasonably. (Aharon Barak, Purposive Interpretation
in Law, (2007) at p. 87; New India Assurance Company Ltd. v.
Nusli Neville Wadia ; UCO Bank v. Rajinder Lal Capoor ; Union
of India v. Ranbaxy Laboratories Limited ; D. Purushotama
Reddy v. K. Sateesh ; Mahalakshmi Sugar Mills Company
Limited v. Union of India ).
The rule of purposive construction should be resorted to
which would require the construction of the Act in such a manner
so as to see that the object of the Act is fulfilled. (Ashoka
Marketing Ltd. v. Punjab National Bank ; Nusli Neville Wadia28;
Rajinder Lal Capoor29; Ranbaxy Laboratories Limited30; D.
Purushotama Reddy31; Mahalakshmi Sugar Mills Company
Limited32). The courts should, where possible, identify the
mischief which existed before the passing of the statute and then,
if more than one construction is possible, favour that which will
eliminate the mischief so identified. (Anderton v. Ryan ). The
Court must adopt that construction which, suppresses the
mischief and advances the remedy (Pawan Kumar v. State of
Haryana ).
The intention of the legislature must be found by reading the
statute as a whole. The court must ascertain the intention of the
legislature by directing its attention not merely to the clauses to be
construed but to the entire statute; it must compare the clause
with the other parts of the law, and the setting in which the clause
to be interpreted occurs. The rule is of general application as even
the plainest terms may be controlled by the context. The
expressions used in a statute should, ordinarily, be understood in
a sense in which they best harmonize with the object of the
statute, and which effectuate the object of the legislature. (Mor
Modern Cooperative Transport Society Ltd. v. Financial
Commissioner & Secretary to Govt. of Haryana ).
The Court must look at the statute as a whole and consider
the appropriateness of the meaning in a particular context avoiding
absurdity and inconsistencies or unreasonableness which may
render the statute unconstitutional. Where there exists some
ambiguity in the language or the same is capable of two
interpretations, the interpretation which serves the object and
purport of the Act must be given effect to. In such a case the
doctrine of purposive construction should be adopted. (Swedish
Match AB v. Securities & Exchange Board of India ; Nathi Devi
v. Radha Devi Gupta ). We shall, therefore, examine Section 4-
A(1) in the context of the other provisions of the 1995 Act, as also
the mischief which Act 21 of 2011 sought to remedy. As Section 4-
A(1) refers to addressable system which is defined in explanation (a),
it is useful to note the meaning of the words addressable system
therein.
VI. SCOPE OF EXPLANATION (a) TO SECTION 4-A:
Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would submit that explanation (a) to Section 4-A gives a
choice to the subscriber whether to receive transmission in an
analog form or in the DAS form; on the subscriber exercising his
choice, it is open to such of those cable operators, who are willing
to send signals in both DAS and analog forms, to provide signals of
the choice of the subscriber; the set top boxes contain both a
conditional access system and a subscriber management system;
this system is linked to the local cable operator and the multi-
system operator; the conditional access system unencrypts
encrypted signals; the subscriber management system deals with
the choice of the consumer regarding channels; both CAS & SMS
are integrated; the expression addressable system in Explanation (a)
defines not only an STB but also the transmission of DAS; a
combination of both CAS and SMS is called the STB; the function
of CAS is to decode encrypted signals, and provide subscribers
access to channels according to their choice through SMS; both
CAS and SMS are integrated and inseparable; the choice of the
subscriber is either to have an STB or not to have an STB;
whosoever choose DAS is required to have an STB, and whoever
chooses not to have DAS, and exercises his choice only for the
conventional analog system, need not have an STB; it is the choice
of the subscriber to have DAS or analog; as the analog system does
not require set top boxes, the subscriber can avoid incurring
needless expenditure in purchasing them, if he is satisfied with a
limited number of channels being made available through analog
transmission; the choice of the subscriber, under explanation (a) to
Section 4-A(1) of the 1995 Act, is a choice of the manner in which
signals should be transmitted i.e. either in analog form or through
DAS; the choice is not with respect to TV channels; there is no
reference either in Section 4-A(1) of the 1995 Act, or in explanation
(a) thereto, to TV channels; independent of Explanation (a), Section
4-A does not prohibit transmission through the analog system;
Explanation (a) only strengthens the construction placed on
Section 4-A; Section 4-A does not suffer from any deficiency; the
intention of Parliament, which is explicit in Section 4-A, is
reiterated in Explanation (a); the counter-affidavit is silent
regarding the choice available to the subscriber in terms of the
Explanation; as the contentions urged are mixed question of fact
and law, the counter-affidavit ought to have dealt with them; and
even if it is understood in the context of Explanation (a) thereto, as
Section 4-A(1) does not prohibit analog transmission, no specific
permission is required under the statute to transmit signals in the
analog form.
It is submitted, on behalf of the respondents, that Section 4-
A(1) should be construed in terms of explanation (a) thereto; while
in exceptional situations, an Explanation can be construed
independently, it is ordinarily construed only in terms of the main
provision; when Section 4-A(1) is read in the context of explanation
(a), it is evident that the transmission, required to be effected after
the 2011 amendment to the 1995 Act, and from the date notified
by the Central Government, is only in an encrypted form, and not
through the analog form of transmission of signals.
An addressable system is an electronic device, or more than
one electronic device, in an integrated system through which
signals of cable network can be sent in an encrypted form. The
encrypted signals would be decoded by the device (set top box),
having an activated conditional access system, at the premises of
the subscriber. Decoding of the encrypted signal by the device
(STB) is within the limits of authorisation made through the
conditional access system and the subscriber management system,
on the explicit choice and request of such subscribers. The words
on the explicit choice and request of such subscriber is used in the
definition of an addressable system in explanation (a) to Section 4-A.
The choice which the subscriber can exercise is only within the
addressable system itself, and not beyond. Since an addressable
system is an electronic device whereby signals are sent in an
encrypted form, the explicit choice and request of the subscriber is
not whether he should receive signals in an encrypted form or in
an analog form, as transmission of signals in the analog form falls
outside the addressable system. As explanation (a), whereby an
addressable system is defined, does not give a choice to the
subscriber, to choose between an analog form of transmission or
the encrypted form, the obligation cast on every cable operator by
Section 4-A(1) is only to transmit programmes of any channel in an
encrypted form through a digital addressable system (set top box).
When Section 4-A(1) is read along with explanation (a) thereto, it is
evident that the subscriber no longer has a choice to receive signals
in an analog form, but can receive signals only in an encrypted
form through a digital addressable system i.e. the set top box.
The submission that Section 4-A(1) must be read
independent of explanation (a) does not merit acceptance. An
Explanation, added to a statutory provision, is not a substantive
provision in any sense of the term but, as the plain meaning of the
word itself shows, it is merely meant to explain or clarify certain
ambiguities which may have crept in the statutory provision. The
object of an Explanation is to understand the provision in the light
of the explanation. It does not ordinarily enlarge the scope of the
original section which it explains, but only makes the meaning
clear beyond dispute. (S. Sundaram Pillai v. V.R. Pattabiraman ;
Sarathi in Interpretation of Statutes).
The object, of an Explanation to a statutory provision, is (a)
to explain the meaning and intendment of the Act itself; (b) where
there is any obscurity or vagueness in the main enactment, to
clarify the same so as to make it consistent with the dominant
object which it seems to subserve; (c) to provide an additional
support to the dominant object of the Act in order to make it
meaningful and purposeful; (d) an Explanation cannot in any way
interfere with or change the enactment or any part thereof but
where some gap is left which is relevant for the purpose of the
Explanation, in order to suppress the mischief and advance the
object of the Act, it can help or assist the Court in interpreting the
true purport and intendment of the enactment, and (e) it cannot,
however, take away a statutory right with which any person under
a statute has been clothed or set at naught the working of an Act
by becoming a hindrance in the interpretation of the same. (S.
Sundaram Pillai39; Hiralal Rattanlal v. State of U.P. ).
Sometimes an Explanation is appended to stress upon a
particular thing which, ordinarily, would not appear clearly from
the provisions of the Section. The proper function of an
Explanation is to make plain or elucidate what is enacted in the
substantive provision, and not to add or subtract from it. Thus an
Explanation does not either restrict or extend the enacting part; it
does not enlarge or narrow down the scope of the original Section
that it is supposed to explain. The Explanation must be
interpreted according to its own tenor, that it is meant to explain
and not vice versa. (S. Sundaram Pillai39; Swarup in Legislation
and Interpretation). It is with a view to explain the term
addressable system in Section 4-A(1), has the said term been defined
in explanation (a) thereto. Section 4-A(1) must necessarily be
understood in the light of explanation (a). When Section 4-A(1)
and explanation (a) are read together, it is evident that, after the
specified date, the cable operator is obligated to send signals only
in an encrypted form which a subscriber can receive only through
a digital addressable system (set top box).
The construction to be placed on Section 4-A(1) and
explanation (a) thereto is a pure question of law and not a mixed
question of fact and law. While the meaning of an ordinary word of
the English language is not a question of law, the proper
construction of the Statute is. (Revenue and Customs v. Premier
Foods Ltd. ). The question of what a word means in its context
within the Act is a question of legal interpretation and, therefore, of
law. The Court is required to arrive at the legal meaning of the
term. (Premier Foods Ltd.41; Benyon on Statutory
Interpretation, 3rd Edition, page 945 to 956; Brutus v.
Cozens ). The mere fact that the counter-affidavit does not refer to
the scope and ambit of Section 4-A(1) and explanation (a) thereto,
would not preclude us from examining its scope.

VII. DISTINCTION BETWEEN THE PRE-AMENDED AND
AMENDED SECTION 4-A AND THE DEFINITIONS IN THE
EXPLANATION THERETO:

Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would submit that the difference between the pre-
amended and the amended Section 4-A is only digitisation and
nothing else; the old Section 4-A also gave a choice to the
subscriber; both analog and DAS signals can co-exist; analog and
encrypted signals can be sent in the same cable, but in different
frequencies; and it is technically feasible to send both form of
signals in one single cable.
It is contended, on behalf of the respondents, that the
difference in language between Section 4-A, prior to its amendment
and after its amendment by the 2011 Act, makes it clear that the
requirement of sending signals in an encrypted form, which was
earlier limited only to pay channels, has now been extended to all
channels; while explanation (a) to the unamended Section 4-A uses
both the words encrypted and unencrypted form, the amended
explanation (a) only uses the word encrypted form; Parliament
intended to remedy the mischief which existed in the pre-amended
Section 4-A; in deleting the words unencrypted form from the
explanation, the legislative intent is evident; and it is to the effect
that signals should be transmitted only in an encrypted form.
The legislation is primarily directed to the problems before
the legislature based on information derived from past and present
experience. The legislative intention, i.e. the true or legal meaning
of an enactment, is derived by considering the meaning of the
words used in the enactment in the light of any discernible
purpose or object which comprehends the mischief and its remedy
to which the enactment is directed. (Ameer Trading Corpn. Ltd. v.
Shapoorji Data Processing Ltd., ; District Mining Officer v. Tata
Iron & Steel Co. ). Parliament intends that an enactment shall
remedy a particular mischief and it is therefore presumed that
Parliament intends that the Court, when considering, in relation to
the facts of the instant case, which of the opposing constructions of
the enactment corresponds to its legal meaning, should find a
construction which applies the remedy provided by it in such a
way as to suppress that mischief. (Ameer Trading Corpn. Ltd.43;
Halsbury’s Laws of England, Vol. 44(1), 4th Reissue, para 1474,
pp. 906-07). Parliament is presumed to have enacted a reasonable
statute. (Breyer, Stephen (2005): Active Liberty: Interpreting
Our Democratic Constitution, Knopf (Chapter on Statutory
Interpretation, p. 99 Reasonable Legislator Presumption;
Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli ; Rajinder
Lal Capoor29).
When two interpretations are feasible, the Court will prefer
that which advances the remedy and suppresses the mischief as
the legislature envisioned. (Mor Modern Cooperative Transport
Society Ltd.36). Four things are to be discerned and considered:
(1). What was the common law before the making of the Act., (2).
What was the mischief and defect for which the common law did
not provide., (3). What remedy the Parliament hath resolved and
appointed to cure the disease; and (4). the true reason of the
remedy. Judges should always make such a construction as shall
suppress the mischief, and advance the remedy, and to suppress
subtle inventions and evasions for continuance of the mischief, and
pro privato commodo, and to add force and life to the cure and
remedy, according to the true intent of the makers of the Act, pro
bona publico. (Bengal Immunity Co. Ltd. v. State of Bihar ;
Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) v.
K. Devi ; K.P. Varghese6; Goodyear India Ltd. v. State of
Haryana ; Pawan Kumar35). It is not only legitimate, but highly
convenient to refer both to the former Act and to the ascertained
evils to which the former Act had given rise, and to the later Act
which provided the remedy. (Eastman Photographic Material
Company Ltd. v. Comptroller General of Patents, Designs and
Trade Marks ; In re Mayfair Property Company ; Bengal
Immunity Co. Ltd.46; Parayankandiyal Eravath Kanapravan
Kalliani Amma (Smt)47).
It is useful therefore to read Section 4-A, explanation (a)
thereto, and the definition of the words, basic services tier,
encrypted, free to air channel, and pay channel in the explanation
both before, and after, its amendment by Act 21 of 2011 in
juxtaposition with each other.

Before amendment
After amendment
Section 4-A. Transmission of
programmes through addressable
system, etc.
(1) Where the Central Government is
satisfied that it is necessary in the
public interest to do so, it may, by
notification in the Official Gazette,
make it obligatory for every cable
operator to transmit or retransmit
programme of any pay channel
through an addressable system with
effect from such date as may be
specified in the notification and
different dates may be specified for
different States, cities, towns or areas,
as the case may be.

Explanation.For the purposes of this
section,
(a) “addressable system” means an
electronic device or more than one
electronic devices put in an
integrated system through which
signals of cable television network
can be sent in encrypted or
unencrypted form, which can be
decoded by the device or devices at
the premises of the subscriber
within the limits of authorisation
made, on the choice and request of
such subscriber, by the cable
operator to the subscriber;

 

 

 

(b) “basic service tier” means a package
of free-to-air channels provided by a
cable operator, for a single price to the
subscribers of the area in which his
cable television network is providing
service and such channels are
receivable for viewing by the
subscribers on the receiver set of a type
existing immediately before the
commencement of the Cable Television
Networks (Regulation) Amendment Act,
2002 without any addressable system
attached to such receiver set in any
manner;
(d) “encrypted”, in respect of a signal of
cable television network, means the
changing of such signal in a systematic
way so that the signal would be
unintelligible without a suitable
receiving equipment and the
expression “unencrypted” shall be
construed accordingly;

(e) “free-to-air-channel”, in respect of a
cable television network, means a
channel, the reception of which would
not require the use of any addressable
system to be attached with the receiver
set of a subscriber;

(f) “pay channel”, in respect of a cable
television network, means a channel
the reception of which by the
subscriber would require the use of an
addressable system to be attached to
his receiver set.]

Section 4-A. Transmission of
programmes through digital
addressable systems, etc.-
(1) Where the Central Government is
satisfied that is necessary in the public
interest so to do, it may, by notification
in the Official Gazette, make it
obligatory for every cable operator to
transmit or re-transmit programmes
of any channel in an encrypted form
through a digital addressable system
with effect from such date as may be
specified in the notification and
different dates may be specified for
different States, cities, towns or areas,
as the case may be:

Explanation For the purposes of this
section,-
(a) addressable system means an
electronic device (which includes
hardware and its associated
software) or more than one
electronic device put in an
integrated system through which
signals of cable television network
can be sent in encrypted form, which
can be decoded by the device or
devices, having an activated
Conditional Access System at the
premises of the subscriber within
the limits of authorisation made,
through the Conditional Access
System and the subscriber
management system, on the explicit
choice and request of such
subscriber, by the cable operator to
the subscriber;

(b) basic service tier means a package
of free-to-air channels to be offered by a
cable operator to a subscriber with an
option to subscriber, for a single price
to subscribers of the area in which his
cable television network is providing
service;

 

 

 

(c) encrypted, in respectof a single of
cable television network, means the
changing of such signal in a systematic
way so that the signal would be
unintelligible without use of an
addressable system and the expression
unencrypted shall be construed
accordingly;

(d) free-to-air channel, in respect of a
cable television network, means a
channel for which no subscription fee
is to be paid by the cable operator to
the broadcaster for its re-transmission
on cable;

(e) pay channel, in respect of a cable
television network, means a channel
for which subscription fees is to be paid
to the broadcaster by the cable
operator and due authorisation needs
to be taken from the broadcaster for its
retransmission on cable.

 

If the legislative intention was not to distinguish, and while
stating can be sent in an encrypted form in explanation (a), as
amended by Act 21 of 2011, it was intended to convey the idea that
the signals of cable television network can be sent in encrypted or
unencrypted form, there would have been no necessity of expressing
the position differently. When the situation has been differently
expressed the legislature must be taken to have intended to express
a different intention. (CIT v. East West Import and Export (P)
Ltd., ).
The setting and context in which the words can be sent in
encrypted or uncrypted form and can be sent in encrypted form are used
in explanation (a) to the pre-amended and amended Section 4-A(1)
respectively would require the words can be sent in encrypted or
unencrypted form in pre-amended explanation (a) not to be
understood as can be sent in encrypted form in the amended
explanation (a) (Ahmedabad (P) Primary Teachers Assn. v.
Administrative Officer ) for, if both the expressions were to mean
the same, it would have sufficed to repeat the earlier expression
and not to delete the words or unencrypted in the amended
explanation (a). It is not a sound principle of construction to add
words in a statute, if they can have no appropriate application in
circumstances conceivable within the contemplation of the Statute.
(Aswini Kumar Ghose13).
In explanation (b) to Section 4-A, which defines a basic service
tier, the words, and such channels are receivable for viewing by the
subscribers on the receiver set of a type existing before the commencement of the
Cable TV net work (regulation) amendment Act without any addressable system
attached to such receiver set in any manner, are deleted in the said
definition after its substitution by the 2011 amendment. While the
pre-amended definition of a basic service tier expressly provided for
channels to be received in a receiver set without an addressable
system attached to it, (meaning thereby receipt of signals in an
analog form), deletion of these words in explanation (b), after the
2011 amendment, shows that this choice is no longer available to a
subscriber. Similarly the change in the language of the definition
encrypted (which was defined under explanation (c) prior to its
amendment, and in explanation (d) after its amendment by the
2011 Act) is significant. While the pre-amended definition of
encrypted used the words so that the signal would be unintelligible without
a suitable receiving equipment, the said definition, after its substitution
by the 2011 Act, has replaced the aforesaid words with the words
so that the signal would be unintelligible without use of an addressable system.
While the pre-amended definition refers to a suitable receiving
equipment, the amended definition refers only to an addressable
system, which can only mean an addressable system as defined in
explanation (a).
Likewise, the definition of free to air channel in explanation (e)
to Section 4-A of the pre-amended 1995 Act has been substituted
by explanation (d) pursuant to the 2011 amendment. The words
the reception of which would not require the use of any addressable system to be
attached with the receiver set of a subscriber has been deleted in the
definition of free to add channel in the amended explanation (d) and,
instead, it stipulates that no subscription fee is to be paid for such
transmission of channels by the cable operator to the broadcaster.
While the definition of a free to air channel before the 2011
amendment specifically stipulated that the use of an addressable
system, to be attached with the receiver set of a subscriber, was not
required, the deletion of these words in the definition, after its
amendment by Act 21 of 2011, shows that an addressable system
(set top box) is required even to view free to air channels. However,
no subscription fee need be paid for its re-transmission. The
change in the definition of a pay channel (under explanation (f) of
Section 4-A before the 2011 amendment, and explanation (e)
thereafter) is also significant. While the pre-amended definition of
a pay channel was a channel, reception of which, a subscriber
would require the use of an addressable system to be attached to
his receiver set, this requirement is deleted in the definition after
the 2011 amendment, evidently because an addressable system,
attached to the subscribers receiver set, is now required for all
channels both free to air and pay channels.
Different use of words in two provisions of a statute is for a
purpose. If the field of the two provisions were to be the same, the
same words would have been used. (Kailash Nath Agarwal v.
Pradeshiya Industrial & Investment Corpn. of U.P. Ltd., ; B.R.
Enterprises v. State of U.P., ). When two words of different
import are used in a statute, it would be difficult to maintain that
they are used in the same sense, and the conclusion must follow
that the two expressions have different connotations. (Member,
Board of Revenue v. Arthur Paul Benthall ). When the
legislature has taken care of using different phrases in different
Sections, normally different meaning is required to be assigned to
the language used by the legislature. If, in relation to the same
subject-matter, words of different import are used, there is a
presumption that they are not used in the same sense. (Arthur
Paul Benthall55; Oriental Insurance Co. Ltd. v. Hansrajbhai V.
Kodala ).
Applying the mischief rule it is clear that the substituted
Section 4(A) and its explanation now require all signals to be
transmitted only in an encrypted form through a digital
addressable system, and transmission of signals in an analog form
is no longer permissible.

VIII. PENAL PROVISIONS OF THE 1995 ACT AND RULE 11-F
OF THE RULES : ITS EFFECT:

Sri C. Ramachandra Raju, Learned Counsel for the
petitioners, would submit that second proviso (a) to Rule 11-F need
not be referred to, as the notifications issued by the Central
Government refer only to Section 4-A, and not to Rule 11-F; and
the penal provisions of the Act are attracted only to such cable TV
network operators who send analog signals alone, without also
sending encrypted signals under DAS.
It is submitted, on behalf of the respondents, that second
proviso (a) to Rule 11-F makes it clear that the operator is required
to transmit channels only in an encrypted form, through the
digital addressable system, in a notified area; the provisions of the
1995 Act, when read harmoniously with the Rules, make it clear
that signals can only be transmitted in a digital form, and not in
the analog form, after expiry of the date stipulated in the
notification issued by the Government of India; Sections 11, 16 (1)
and 17 provide for the consequences of violation of Section 4-A;
and if Section 4-A is to be read as permitting transmission through
the analog form, besides transmission in an encrypted form, it
would render these penal provisions redundant and nugatory.
For the purpose of interpreting Section 4-A, it is permissible
to read the Rules as if it were a part of the 1995 Act. The complex
demands on modern legislation necessitates the plenary legislating
body to discharge its legislative function by laying down broad
guidelines and standards, to lead and guide as it were, leaving it to
the subordinate legislating body to fill up the details by making
necessary rules and to amend the rules from time to time to meet
unforeseen and unpredictable situations, and within the
framework of the power entrusted to it by the plenary legislating
body. (State of T.N. v. M/s. Hind Stone etc. ). Rules framed,
under the provisions of a statute, form part of the statute. But
before a rule can have the effect of a statutory provision, two
conditions must be fulfilled, namely, (1) it must conform to the
provisions of the statute under which it is framed; and (2) it must
also come within the scope and purview of the rule making power
of the authority framing the rule. (General Officer Commanding-
in-Chief v. Subhash Chandra Yadav ; Judgment in The
Prudential Cooperative Bank Ltd. v. The A.P. Cooperative
Tribunal at MJ Market, Nampally, Hyderabad ).
A statutory rule, while ever subordinate to the parent statute,
is otherwise to be treated as part of the statute and as effective.
“Rules made under the Statute must be treated for all purposes of
construction or obligation exactly as if they were in the Act and are
to be of the same effect as if contained in the Act and are to be
judicially noticed for all purposes of construction or obligation
(State of U.P. v. Babu Ram Upadhya ; Maxwell: Interpretation of
Statutes, 11th Edition page 49-50; Hind Stone57).
As the provisions of the Act and the Rules are required to be
read harmoniously, it is necessary to also refer to the relevant rules
to consider whether the amendment brought to the 1995 Act by
Act 21 of 2011, and the Rules, prohibit transmission of signals in
an analog form. It is evident, from a reading of Rule 11(2) of the
Rules, that only a multi-system operator, who desires to provide
cable television network services with addressable system, is
entitled to apply for registration to the Central Government. Cable
network services with an addressable system can be provided only
in an encrypted form, and not by the analog form of transmission
of signals. The second proviso to Rule 11-F requires the multi-
system operator to furnish an undertaking to the registering
authority, among others, that he shall transmit or retransmit
channels only in an encrypted form through a digital addressable
system in the notified areas. The said undertaking would require
the multi-system operator to transmit signals only in an encrypted
form, to decript which a subscriber is required to have a set top
box. The word only in the second proviso (a) to Rule 11F clearly
rules out the multi-system operator being permitted to transmit
signals in an analog form, in addition to transmission of signals in
the encrypted/digitised form. The requirement of public awareness
being created regarding the salient features of the digitised
addressable cable system in Rule 12(1), and the requirement of
Rule 13(1) for every subscriber in the notified areas, who is
desirous of receiving one or more channels, to approach the multi-
system operators for supply and installation of one or more set top
boxes in his premises, make it clear that all channels, whether free
to air or pay channels can now be viewed by a subscriber only
through a set top box, and not directly from the local cable
operator through the analog mode of transmission or signals.
The aforesaid Rules show that, after the sun set date of
31.01.2017, transmission of signals in Phase III areas can only
made in an encrypted/digitised form of transmission of signals,
and not in the analog form. The power to seize equipment under
Section 11 of the 1995 Act, and the penal provisions in Section 16
and 17, when read in conjunction with Section 4-A(1) and
explanation (a) thereto, make it amply clear that failure to transmit
signals in the encrypted/digitised form through the digital
addressable system, after the sunset date of 31.01.2017, would
render cable operators, in Phase III areas, liable for penal action
under Section 16 and 17 or for their equipment to be seized under
Section 11 of the 1995 Act.
IX. DO SECTION 4-A(1) AND EXPLANATION (a) THERETO
RELATE ONLY TO THE CHOICE OF CHANNELS

Sri C. Ramachandra Raju, Learned Counsel for the
petitioner, would submit that there is no reference, in Explanation
(a) to Section 4-A, to channels; the choice of channels is dealt with
separately in Section 4-A(3), 4-A(4) and 4-A(5); and Section 4-A(6)
and its proviso apply only to those subscribers who use DAS, and
not to those subscribers who choose analog form of transmission.
It is contended, on behalf of the respondents, that the words
choice and request of such subscriber in explanation (a) to Section 4-A
relate only to the choice of channels by the subscriber, and not to
the form of transmission of signals or to receipt of signals either in
an encrypted form or in an analog form; Section 4-A(3) and its
proviso shows that the option available to a consumer is whether to
have a tier of channel or a la carte; if digital addressable system
was not to be made compulsory, the requirement of Rule 12(1)
would become unnecessary; the choice of channels, available to a
subscriber, is regulated through the subscriber management
system which is available with the Multi-System Operators, and is
integrated into the set top box; and the choice of the subscriber
relates only to the channels sent in an encrypted form.
As noted hereinabove, the explicit choice and request of the
subscriber is referred to in the definition of an addressable system,
which can only mean that the choice or request, which the
subscriber can make, must be within the limits of the addressable
system, and not outside it. Section 4(3) stipulates that, on a
notification being issued under Section 4-A, no new registration
shall be granted to any cable operator who does not undertake to
transmit or re-transmit channels in an encrypted form through a
digital addressable system. The proviso to Section 4-A(6) obligates
the subscriber to use the digitable addressable system, to be
attached to the receiver set, for receiving programme transmitted on
any channel which can only mean both the free to air channel and
the pay channel. This rules out the subscriber exercising his
choice regarding receipt of signals through the analog form of
transmission. Section 4-A(4) confers power on the Central
Government to specify the number of free to air channels to be
included in the package of channels forming the basic service tier
which, in terms of explanation (b), means the package of free to air
channels to be offered to the subscriber for the exercise of his option
to subscribe for a single price. As both free to air channels and pay
channels are now required to be transmitted only through a
digitable addressable system, and such transmission requires the
subscriber to have a set top box attached to his Television set, it is
evident that the choice, which a subscriber can exercise, is only
with regards channels within the limits of the addressable system,
and not a choice regarding the mode of transmission of signals i.e.,
either in the analog or the encrypted form. The mere fact that
explanation (a) does not specifically refer to channels does not
necessitate the conclusion that the choice which a subscriber is
entitled to exercise is regarding the mode of transmission of signals
in an analog form or a digitised form, as the analog form of
transmission of signals is outside the addressable system and not
within it.
X. CONCLUSION:

Viewed from any angle, the impugned notice issued by the
Government of India dated 22.12.2016, prohibiting transmission of
signals in an analog form in phase III areas beyond the sunset date
of 31.01.2017, does not fall foul of Section 4-A(1) of the 1995 Act
as amended by Act 21 of 2011. The challenge, to the validity of the
said notice dated 22.12.2016, must therefore fail. The Writ Petition
is, accordingly, dismissed. However, in the circumstances, without
costs. The miscellaneous petitions pending, if any, shall also stand
dismissed.
________________________________
(RAMESH RANGANATHAN, ACJ)
_____________________________
(DR. SHAMEEM AKTHER, J)
Date: 01.06.2017

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